1. The Applicant's criminal history, as disclosed in the National Police Certificate dated

23 May 2018 (R1, G6, page 24), the History for Court - Criminal and Traffic, West Australian Police compiled 18 March 2019 (R2, SG1, pages 200-201) and New Zealand Police record produced 17 April 2018 (R1, G8, page 39) follows:

Unlawfully assault and thereby did bodily harm with circumstances of aggravation

Imprisonment: 18 months cumulative from 9 June 2017

Imprisonment: 18 months concurrent from 9 June 2017

Unlawfully assault and thereby did bodily harm with circumstances of aggravation

Imprisonment: 12 months cumulative from 9 June 2017

1. Section 501(3A) of the Act provides that:

(3A) The Minister must cancel a visa that has been granted to a person if:

(a) the Minister is satisfied that the person does not pass the character test because of the operation of:

• (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

• (ii) paragraph (6)(e) (sexually based offences involving a child); and

(b) the person is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

1. Section 501(6) of the Act provides that:

For the purposes of this section, a person does not pass the character test if:

(a) the person has a substantial criminal record (as defined by

subsection (7));

1. A 'substantial criminal record' is defined by s 501(7) of the Act as follows:

For the purposes of the character test, a person has a substantial criminal record if:

(a) the person has been sentenced to death; or

(b) the person has been sentenced to imprisonment for life; or

(c) the person has been sentenced to a term of imprisonment of

12 months or more; or

(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more...

1. Section 501CA of the Act further provides:

(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2) For the purposes of this section, relevant information is information (other than nondisclosable information) that the Minister considers:

(a) would be the reason, or a part of the reason, for making the original decision; and

(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3) As soon as practicable after making the original decision, the Minister must:

(a) give the person, in the way that the Minister considers appropriate in the circumstances:

• (i) a written notice that sets out the original decision; and

• (ii) particulars of the relevant information; and

(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4) The Minister may revoke the original decision if:

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

(b) the Minister is satisfied:

• (i) that the person passes the character test (as defined by section 501); or
• (ii) that there is another reason why the original decision should be revoked.

1. Section 499(1) of the Act provides that the Minister may give written directions as follows:

(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a) the performance of those functions; or

(b) the exercise of those powers.

1. Further, s 499(2A) of the Act states that '[a] person or body must comply with a direction under subsection (1)'.
2. On 20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs made Direction no. 79 under s 499 of the Act. The direction commenced operation on

28 February 2019, replacing the previous direction, Direction no. 65.[4] Consequently, as the Tribunal is handing down this decision on 17 April 2019, the Tribunal must apply

Direction no. 79. The Tribunal proceedings were conducted on the basis that

Direction no. 79 applied. 3. As the delegate's decision was made under the previous direction, Direction no. 65, at the commencement of the hearing the Tribunal highlighted for the parties that it would be considering the application applying Direction no. 79. As the Applicant was

self-represented, the Tribunal provided a copy of Direction no. 79 to both parties which marked-up the changes from the earlier direction, according to which the delegate's decision was made. 4. The Tribunal drew attention to the sections of the direction relevant to consideration in such an application (Sections 1 and 2 and Part C) and noted that the changes made in Direction no. 79 related primarily to the treatment of offences against women and children. The Tribunal noted that, having regard to the conviction history of the Applicant, these changes may be relevant to the Tribunal's consideration of his application and he would be invited to make submissions on how the Tribunal should apply the direction at the end of the hearing. 5. Paragraph 6.1 of Direction no. 79 sets out the "Objectives" of the Act, with paragraph 6.1(3) being relevant to the Reviewable Decision currently before the Tribunal:

Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

1. Paragraph 6.2 of Direction no. 79 provides general guidance as follows:

(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen's visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.

(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.

1. Paragraph 6.3 of Direction no. 79 sets out principles which must be taken into account by persons making decisions under s 501CA(4), including the Tribunal:

(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 Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.

1. Informed by the principles set out in paragraph 6.3 of Direction no. 79, the decision-maker (in this case, the Tribunal) must take into account the primary considerations in Part C of Direction no. 79, with regard to the specific circumstances of the case (paragraph 13(1) of Direction no. 79). Specifically, paragraph 13(2) of Direction no. 79 provides:

(2) In deciding whether to revoke the mandatory cancellation of a non-citizen's visa, the following are primary considerations:

1. Protection of the Australian community from criminal or other serious conduct;
2. The best interests of minor children in Australia;

1. Paragraph 14(1) of Part C of Direction no. 79 lists other considerations as follows:

(1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

1. International non-refoulement obligations;
2. Strength, nature and duration of ties;

1. Impact on victims;
2. Extent of impediments if removed.

1. Paragraph 7(1)(b) of Direction no. 79 outlines how a decision-maker is to exercise discretion:

(1) Informed by the principles in paragraph 6.3 above, a decision-maker:

1. must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen's visa will be revoked.

1. Further guidance as to how a decision-maker is to apply the considerations in Direction no. 79 can be found in paragraph 8 of Direction no. 79 which provides:

(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non­citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

(4) Primary considerations should generally be given greater weight than the other considerations.

(5) One or more primary considerations may outweigh other primary considerations.

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" as defined by s 501(7) of the Act.
2. A person has a substantial criminal record if they have been "sentenced to a term of imprisonment of 12 months or more" (s 501(7)(c) of the Migration Act).
3. On 20 December 2017, the Applicant was convicted in the District Court of Western Australia of one count of "unlawfully assault and thereby did bodily harm with the circumstances of aggravation" for which he received a cumulative sentence of 18 months imprisonment. On the same date he was also convicted of one count of "depravation of liberty" and sentenced to a concurrent term of 18 months imprisonment and a further count of "unlawfully assault and thereby did bodily harm with circumstances of aggravation" for which he received a 12 month cumulative sentence of imprisonment.
4. He was also convicted of two counts "criminal damage or destruction of property" for which he received concurrent sentence of three months for each offence, and one count of "creating false belief" for which he received a concurrent sentence of three months.
5. As the Applicant has been sentenced to a term of imprisonment of 12 months (on three occasions) he does not pass the character test under s 501(6)(a) and s 501(7)(c) of the Migration Act.
6. The issue of the Applicant's offending history is considered further below in consideration of the Applicant's submissions and evidence that he did not, in fact, commit some of the offences for which he was convicted, including some of those giving rise to the mandatory cancellation of his visa.
7. The other issue remaining for determination is whether the Tribunal is satisfied that there is another reason, pursuant to s 501CA(4) of the Act, why the decision to cancel the Applicant's visa should be revoked.

IS THE TRIBUNAL SATISFIED THAT THERE IS ANY OTHER REASON WHY THE REVIEWABLE DECISION SHOULD BE REVOKED?

1. The Applicant did not submit a Statement of Fact, Issues and Contentions. However, having regard to the submissions made by the Applicant at the hearing and the matters raised in his statements and submissions to the Tribunal and to the Department, his submissions regarding the 'other reasons' why the cancellation decision should be revoked may be summarised as follows:
   • The Applicant takes full responsibility for his actions. However, the offences for which he was charged do not reflect a violent nature. He was not responsible for some of the offences but made the wrong decision to plead not guilty and not testify in his own defence at the trial. Further, his offences arose in disputes which were specific to his relationship at the time and as such do not reflect a broader tendency to violence or a threat to the Australian community;
   • The Applicant presents a low risk of reoffending:
     • the Applicant's offences were caused by alcohol consumption. He has given up alcohol and has maintained his sobriety for an extended period. This has included time spent on bail in the community;
     • Psychological assessment of the Applicant pre-sentencing, assessed him to be a low risk of reoffending.
   • The Applicant recognises the effect that offending has had on his life and this makes him a low risk of reoffending in the future;
   • The Applicant has rehabilitated including through undertaking courses while in prison which better equip him to avoid alcohol and reoffending.
   • The Applicant wants to contribute to the community by assisting others 'overcome the crippling grasp of alcohol' and to provide guidance to others in a similar situation to his;
   • The Applicant has good employment prospects in Australia and a supportive 'adoptive' family. These protective factors should be given weight in terms of the Applicant's likelihood of reoffending;
   • The Applicant has strong ties in Australia and his removal would have a profound impact on his fiancé and her family, including potentially limiting her family's contact with future children of the relationship; and
   • The Applicant does not have a support network in New Zealand or similar job prospects there. This will make it difficult for him to resettle in New Zealand.
2. These submissions, and those of the Respondent, will be dealt with in more detail below.

1. As noted above, the Applicant did not submit a Statement of Fact, Issues and Contentions. The hearing commenced on the assumption that the factual circumstances of the convictions which formed the basis for the mandatory cancellation of the Applicant's visa were not at issue. However, during the hearing it was evident that the Applicant sought to establish through his evidence that he was not responsible for some of the offences but made the wrong decision to plead not guilty and not testify in his own defence at the trial. Further, his offences arose in disputes which were specific to a mutually physically violent relationship.
2. The Applicant explained his position to the Tribunal as follows:

As for the some of the evidence and material facts, yes, I do but I believe the right thing was what - you know, I've said in the past, I'm not going to stand next to something that I don't believe in. I don't put it past the fact that yes, I did lay my hands on a woman but it goes across my values and morals that I've learnt whilst been, how would you say, in the navy as being taught not to do things as such, and I've gone against it. Again, I say that not light heartedly but as something that's gone against me and I'm going to have to live with all the time.

(Transcript, page 75)

1. The facts of the Applicant's offending which led to the mandatory cancellation of the visa are set out in the Sentencing Remarks of the District Court Judge Stavrianou. His Honour describes the facts of the first set of offences on 21 June 2015 as follows:

...the complainant, [Name omitted], is now aged 26. She first met you in December 2014 when you are working in the North West of Western Australia, and she was working there as well.

You formed a relationship. That relationship was not always harmonious. There were arguments on other occasions as well as on the dates which form the basis of the charges in this matter. There was often alcohol consumed. But by April 2015 which is before the first offence occurred, you had moved in together at to a property in Canning Vale.

Counts one and two occurred on same day in June 2015, namely, on or about

21 June. You'd been to a party with her earlier in the evening. She wanted to leave the party as she was not enjoying herself. You both left the party and you went back to the Canning Vale property.

When you arrived home an argument began about her wish to leave the party. You began arguing about it. You became angry with her, and pushed over the fish tank. It smashed to the ground. It is that conduct which constituted count number two of the indictment.

[Name omitted], the housemate, saw the smashed fish tank on the floor. He didn't see the incident we saw the smashed fish tank on the floor

You grabbed [Name omitted] around the shoulders and forcibly pushed her to the ground. She landed on her left shoulder which was very sore as a result. Now, as a result of that ultimately she ended up going to Fiona Stanley Hospital and she had a plate inserted in her shoulder area to deal with the fractured clavicle which she sustained in the incident.

(R1, G7, page 28)

1. His Honour describes the facts of the second set of events which occurred on

In April 2016 [Name omitted] moved from the Canning Vale address in Gosnells. You and her remained in touch notwithstanding that by this time your relationship had culminated in a separation.

You were working as a FIFO in June 2016, fly in/fly out worker, when counts three to six occurred. You and [Name omitted] had jointly owned a dog and on

3 June 2016 you wanted to see the dog.

It was a Friday. You went to dinner with [Name omitted] that night and the events, the subject of counts 3 to 6 occurred on the Sunday of that particular weekend. On the Friday night you had stayed there. On the Saturday night there was an interaction between you and [Name omitted] and again on the Saturday night you stayed at the house and slept in her bed.

On the Sunday morning you and [Name omitted] went for breakfast and then had returned to her home. Now, during the course of the breakfast a notification came up on her phone from the dating site known as Tinder and you saw that particular notification.

When you got home you started talking to her. You were at her house all day. Her plan was to go out at about five o'clock with her friends. During the course of the day you were drinking alcohol.

Subsequently she told you that she would drop you off at home because you'd been drinking. There had been a chat about the message you'd seen on her phone. You left the house in your car and she then messaged you to come back because you'd been drinking.

You then returned to her house and began arguing with her. This was at some time between about 5.00-6.00 pm. In the course of arguing you pulled the TV down onto her head and the screen had cracked.

There was a lot of yelling. You picked her up and threw her into a coffee table. You were strangling her at one stage when she was on the ground and you had your hands around her throat and were squeezing on her windpipe. As I said there was a lot of yelling.

You went and got a knife from the kitchen and came out to her. I accept you didn't stab her with the knife. I accept that as a fact. The front door was locked and she could not make an escape from her house, hence the deprivation of liberty.

During the course of the incident she jumped out of the lounge room window, she tried to run away, she didn't get very far when you caught her. You'd bitten her on the cheek and her head was being pushed into the sand.

You asked for the PIN code to her phone which she ultimately gave [sic] you. You went through the phone and when you found something you didn't like you became more angry. She was yelling to the neighbours. She heard someone yelling from outside.

You were yelling to the neighbours to call the police. [Name's omitted] evidence was that she and her husband had returned home at about 7.00pm and it was about this time or shortly thereafter that the conversations with the neighbours occurred. Other neighbours gave evidence as well at trial establishing the time when this is happening at about 7.00pm-7.30pm.

Now, she jumped out of the window. She had cuts from the knife. She had cuts on her hand. She went back through the window to put a top on. When she went back into the house at one stage she saw you were cutting your arms and this was captured by her on the camera of her phone.

Now, I accept that she didn't shove you or push you in the back or chest. She didn't threaten you at any stage with the [sic] knife. She didn't scratch your face. She was not striking you. She didn't have a knife in her hand and all of that is consistent, all of those findings are consistent with the rejection of your defence at trial of self-defence which the jury clearly rejected.

When the police arrived and told them that you'd been cut by the complainant and that's count six on the indictment. The jury clearly were satisfied as to the truthfulness, accuracy and reliability of the account given by [Name omitted] which I also accept.

Now, the injuries that she suffered in relation to the second occasion, she had bruises on the left side of the neck when she presented to hospital, laceration of the right finger approximately three centimetres in length and otherwise she was discharged on the basis that she was to be followed up with her general practitioner.

She was given some advice in relation to her sutures and she was given a sutures advice sheet. Now, the injuries that she suffered on the second occasion were unlikely to be life-threatening, I accept that to be the case.

The injuries, however, did interfere with her comfort on that particular occasion. They were unlikely again I accept to result in permanent injury to health. The events would clearly have been traumatic for the complainant.

(R1, G7, pages 29-31)

1. In relation to the facts of the first set of offences, committed on 21 June 2015, the Applicant denied having committed the offences. The extent of Mr Toki's challenge to the factual findings with respect to the convictions is evident in the exchange between the Respondent and the Applicant in cross-examination:

Ms McDONALD: Can you explain what happened when you got home?

MR TOKI: We were arguing.

MS McDONALD: Have you read the statement of what the sentencing judge said had happened about you pulling the fridge and the fish tank and all that kind of thing, you've read what the judge said about that and do you agree that what the judge found is correct?

MR TOKI: No because that's why I went to trial and then we had a disagreement, we were arguing, we were chasing around the house.

.....

MS McDONALD: And then you decided to throw the fish tank on the floor; is that right?

MR TOKI: No, I didn't decide to throw the fish tank on the floor.

MS MCDONALD: How did the fish tank get on the floor?

MR TOKI: I tripped over it so I grabbed it on the way down.

.......

MS MCDONALD: The sentencing judge and the police records indicate that you grabbed her and then they used the word "slung her"?

MR TOKI: Threw her to the ground.

MS McDONALD: So threw her to the ground; is that right?

MR TOKI: Yes, I do remember that.

MS MCDONALD: And do you remember how she fell?

MR TOKI: Yes, she fell when were out on the town or a club, I think.

MS MCDONALD: Sorry, when you threw her to the ground how did she fall, did she fall on her head?

MR TOKI: I didn't throw her to the ground.

MS MCDONALD: So you don't agree that you threw her to the ground?

MR TOKI: No. These were the facts that I was taken to trial.

MS MCDONALD: The sentencing judge says that her left shoulder struck the ground hard and that's how she sustained the broken collar bone?

MR TOKI: Yes.

MS MCDONALD: Do you agree with that?

MR TOKI: No.

.......

MS McDONALD: And how did you feel after this incident? What did you think about what had happened? How did you feel about this argument and how things had happened?

MR TOKI: I just didn't like it at all. Like, there's no way people who fall in love should be arguing at all. That was the first biggest thing we've ever had in that relationship prior to you saying that we were arguing and all that stuff up until before then, we weren't - we were happy.

MS MCDONALD: Did you know you had committed a crime?

MR TOKI: No, because we argued. I didn't assault her then although she claims to have.

(Transcript, pages 16-17)

1. It was evident from this exchange and the submissions of the Applicant that he did not accept the factual findings on which the first conviction for 'Unlawfully assault and thereby did bodily harm in circumstances of aggravation' was based. He received a sentence of 12 months imprisonment for this charge. Further he did not accept the factual findings on which the convictions for "Criminal damage and destruction of property" was based a crime for which he received a concurrent sentence of 3 months imprisonment. He denied the evidence of his then flatmate which was used in part as a basis for the factual findings of the Court (Transcript, pages 19-20).
2. In relation to the facts of the second set of offences, committed on 5 June 2016, the Applicant denied having committed several of the offences. The extent of Mr Toki's challenge to the factual findings with respect to the convictions on this date is also evident in the exchanges between the Respondent and the Applicant in cross-examination:

MS MCDONALD: And do you want to describe what you say happens that night?

MR TOKI: Pretty much we argued, we fought, yes I did hit her. That's what I'm saying, like, I did hit her and that's something that I've got to live with. Yes, we fought and it was bad.

MS MCDONALD: When you say you did hit her, what did you hit her with?

MR TOKI: The backhand of my hand.

......

MS MCDONALD: You might turn to the statement of material facts just so we're on the same page. It's at page 206 of the bundle closest to the start. So the police statement of material facts records that the argument started some time in that afternoon, 6 pm or 4 pm, it doesn't really matter exactly what time. The police record records that:

During the argument and whilst in the lounge room, the accused grabbed the victim and slung her to the ground

MS MCDONALD: Did you throw her to the ground; do you say that's correct?

MR TOKI: No.

MS MCDONALD: Then that you grabbed hold of a 65" flat screen television sitting on a low cabinet and threw it on top of her head?

MR TOKI: Threw it on top of her, yes I remember.

MS MCDONALD: Yes, did you do that?

MR TOKI: No.

......

MS MCDONALD: And you say you didn't pull the TV onto her head?

MR TOKI: No, it just got knocked off.

.......

MS MCDONALD: The next paragraph, this is what the police describe as charge 2, this is described as you choking or strangling her on the floor with both your hands?

MR TOKI: Yes.

MS MCDONALD: Did you strangle her?

MR TOKI: Not when she - when she had the knife I tried to, yes.

......

MS MCDONALD: So the record of police - well, the statement of material facts, the record of what the police believe happened and submitted for trial, so the police record goes on to say that you grabbed her by her hair and pulled her along the floor?

MR TOKI: Yes, I do remember that, yes.

MS MCDONALD: As in you did do that?

MR TOKI: No, I didn't do that.

.......

MS MACDONALD: So you say she had a knife?

MR TOKI: She had a knife too, yes.

MS MCDONALD: Who picked up the knife first?

MR TOKI: She did.

MS MCDONALD: That's not anywhere in the statement of material facts?

MR TOKI: Yes, because you've got all of hers - all of her material facts and none of mine. That's why I went to trial.

MS MCDONALD: I have to put this to you because the sentencing judge found that these facts had occurred in sentencing you and in convicting you the jury found these facts and the sentencing judge sentenced you on that basis?

MR TOKI: Because at the time I was pleading not guilty to the assault and all that sort of stuff when I took the ill advisement from a lawyer that, you know, "We'll just go with that. Leave that at that" and I left it all in his hands. That's what I paid money for so I left it all in his hands and then it didn't come out as such so I did - I did say to him, "I want to plead guilty to the physical assault" because I did. There's no way in hell that, you know, someone just gets bruises just for the hell of it. Like, yes I did lay my hands on her which was bad and that's something I have to live with now.

MS MCDONALD: But you pleaded not guilty because you didn't believe that you did any of these other things?

MR TOKI: The material facts that were put out, no.

....

MS MCDONALD: And during this argument the front door of the house was locked; is that right?

MR TOKI: I can't remember.

MS MCDONALD: Why would it have been locked?

MR TOKI: I don't know. Because I don't have a key for that door anything like that. You can open it from the inside.

.......

MS MCDONALD: The police record that she used the opportunity, and that's their language, to run to a nearby unlocked window, slide it open and jump into the backyard?

MR TOKI: I jumped through that window first. I jumped out when she had the knife because I literally ran straight through the window. Just bang, bang, bang, over the couch straight through the window. I took it all with me. All my blood's on it.

MS MCDONALD: Was she outside as well in your ?

MR TOKI: Yes, she ran out the sliding door if I can remember correctly. She ran out the sliding door and then we started arguing in the back because I grabbed Tyson - I picked him up and I was to walk out and then we struggled over him because she was grabbing him by the collar and that's my dog, man, like

.....

MS MCDOANLD: The police record says that you pushed her head into the soft sand?

MR TOKI: Her head into the ground, yes I know.

MS MCDONALD: Did you push her head into the sand?

MR TOKI: No.

MS MCDONALD: You also put the knife to her throat telling her to be quiet?

MR TOKI: That's also what they said, yes.

MS MCDONALD: So you say that none of this happened?

MR TOKI: No. We had a fight and that was it. That was the large majority of it; fisticuffs, the knife came out, I tried to take it off her, I got cut as well, she got cut as well, we rolled around on the bed and that's when our neighbours came out.

......

MS McDONALD: Part of the judge finding that you had not only assaulted her but imprisoned her was the fact that she was trapped in the house or she couldn't leave the house or the backyard area?

MR TOKI: Well, originally they tried to do me for the deprivation and liberty on a door that we had both broken because I tried to shut the door and then my hand was in the door, it's still broken now so I tried to rip the door open and that's when the doorhandle broke off and they're saying that because the doorhandle was broken off, I tried to keep her inside when really I was just trying to get my hand outside of the door.

MS MCDONALD: That was actually one of the more serious offences in terms of the imprisonment, you were given 18 months for the deprivation of liberty?

MR TOKI: Yes, of course I remember that.

MS MCDONALD: But you say you never stopped her from leaving the house or ?

MR TOKI: No, she was - she had two of her - she had one cell phone there that I took off her when she didn't give me my one back. She had her original one and she had the opportunity to leave. The door I'm guessing, because we were both behind the door, wasn't locked. Like, I'm pretty sure it was the deadbolt so that's - in any house I'm pretty sure she didn't have a doorhandle, she just had a deadbolt and that's how they're saying that it was a deprivation of liberty because that was locked.

MS MCDONALD: Well, this is not the police saying it, this is what the court found, that it was a deprivation?

MR TOKI: Yes, because the police found that the door was locked but it's a deadbolt.

.......

MS MCDONALD: I was asking you about when you picked up the knife and then you started cutting yourself. Did you start cutting yourself with the knife?

MR TOKI: That's what they said that I did. In the videos it's got me washing my hands.

MS MCDONALD: Well, the police looked at those videos and record in the material facts that you were cutting your forearms with the knife?

MR TOKI: Yes, because I said, "If you can cut me, I can cut myself too" just to show that I wasn't scared of being cut but then at the same time, like, I didn't want to be so it was just a scare tactic.

MS MCDONALD: So your evidence is you were cutting yourself?

MR TOKI: Just on the one - I just did it once.

....

MS MCDONALD: So we've discussed that before, you pleaded not guilty because you didn't accept - well, really most of what had happened?

Mr TOKI: Yes, like, I do accept the assault and I said to them - I was like, "Yeah" but on advisement from my lawyer, I took his - I took his - because I don't know any of this.

...

MS MCDONALD: Do you accept that you've committed these offences now?

MR TOKI: Like, it's something that I've just had to deal with. Yes, okay cool, I'll just deal with it. I was - that's the reason why I took it to trial. I was questioning the deprivation of liberty because I thought that was pretty sour. Like, that wasn't, you know, I didn't have her tied up or I didn't have her mangled up anywhere, she could leave. You know, after all that I said to him - like, you know, within myself, "Yeah I do know that I have to (indistinct)" and that's wrong. Like, the remorse for that is just - you can't even talk about that, you know, I can't because that's something I'm going to have to live with for the rest of my life.

MS MCDONALD: But for all the other offences: the deprivation of liberty, the first assault injury in 2015, you don't accept any of that?

MR TOKI: No because it was on both parties. We were both arguing, we both fought, she hit me, I hit her, yes I'm not going to sit there and say "A girl hit me".

(Transcript, pages 24-34)

The Tribunal cannot impugn the conviction and the sentence that is a pre-condition to the mandatory cancellation...

(Transcript, page 64)

1. The Respondent submitted that all of the convictions involving sentences of more than

12 months involve circumstances which would trigger the mandatory cancellation: in this instance the two convictions for unlawful assault and the conviction for depravation of liberty (Transcript, page 64). Each of those meets the criteria for a 'substantial criminal record' and is a basis on which the Applicant fails the character test. The Respondent referred the Tribunal to the decision of Bromberg J in HZCP v the Minister for Immigration (2018) FCA 1803 (HZCP) where his Honour provided a useful survey of the principles and authorities relating to whether the Tribunal can look behind or impugn a conviction or facts behind a conviction. 2. The Tribunal's assessment of the circumstances of an applicant's offending will be an important part of its consideration as to whether to exercise its discretion to revoke the mandatory cancellation of an applicant's visa. As the discussion in HZCP demonstrates, the question of whether and to what degree to the Tribunal can investigate the facts underlying the Applicant's convictions is an important one and has been the subject of detailed judicial consideration.[5] 3. The challenge presented by the Tribunal considering the factual circumstances of an applicant's offending have been carefully considered by the courts. In Degerli v Minister for Immigration and Ethnic Affairs [1981] FCA 250 (23 December 1981) (Degerli) the full Court noted (at 4-5):

...The fact that the conviction stands conclusively as the source of the jurisdiction of the Minister to make a deportation order and as affecting the standing or credit in the community of an applicant as a convicted person. Moreover, the correctness of the conviction and the fairness of the trial procedures which resulted in the verdict of the jury are not the concern of the Tribunal. That the concern of the Criminal Appeal Courts and of the prerogative of the Crown. If the Tribunal were to ignore the conviction or merely to act upon its own view as to the form of the indictment, the course of the trial, the correctness of the summing up and the propriety and consistency of the verdict and the penalty, it will take into account irrelevant considerations.

1. In Minister for Ethnic Affairs v Gungor [1982] FCA 99; (1982) 4 ALD 575 (Gungor), Fox J described the broad policy considerations applicable as follows at 578-579:

What does seem to me to be highly improbable is that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source (albeit one functioning in a number of respects like a court, and comprising a judge) should review the conviction on its essential factual basis. The policy must be that the conviction is a matter for the criminal law and its procedures. Appeals are there available. If new or fresh evidence comes to hand, the criminal procedures can be availed of. There can in rare cases be an application for a pardon, perhaps preceded by a special judicial inquiry. While it stands, the conviction must be conclusive, so far at least as concerns a Tribunal reviewing a decision which takes the conviction and the Minister's decision as its starting point. When I say conclusive, I mean conclusive as to the guilt of the accused in relation to the offence charged, and of the sentence imposed. This is my understanding of the statutory intention. Quite obviously, serious practical questions arise if the position is otherwise. The Tribunal could presumably arrive at its own decision as to whether the person concerned did what he was charged with doing, and for that matter, what sentence his offence merited. It would be doing so on material gathered and considered at what could be a long time after the trial, when some witnesses for the prosecution were unavailable and memories were in any event dimmed. Accepted trial procedures would be absent. The Crown, as repository of the function of criminal prosecutions, would not be a party. The Tribunal might in the end find itself substituting its own view for that of the jury.

1. In Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234 (SRT) the Full Court noted with respect to the relevant policy considerations [at 45]:

...It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of the conviction and of the resulting evidence. The policy must be that a conviction, and a sentence imposed as a result of that conviction, are matters for the criminal law and its procedures.

1. As the authorities demonstrated, however the Tribunal's examination of the full circumstances of an applicant's conduct may involve an investigation as to the applicant's criminal behaviour. Thus it is necessary to define the degree to which the Tribunal may take account of evidence that challenges factual findings on which the applicant's convictions are based.
2. In SRT the Full Court observed at [40]:

where the decision to be reached [by the Tribunal] depends on their having been a sentence that satisfies section 201(c) of the Act, it is not open to the Tribunal to engage in any enquiry which would impugn the sentence. Accordingly, at least the essential facts found by sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence.

1. While the Full Court in SRT were considering an earlier version of the Act (section 201 of the Act as it then was) the analysis is equally applicable to the exercise of statutory powers under section 501.
2. In Beckner v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 264; (1991) 30 FCR 49 (Beckner), Davies J considered the decisions in Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212; (1981) 5 ALD 135 (Daniele), Degerli and Gungor and noted

[at 50] that the cases did not annunciate a principle that no evidence could be called to deal with matters in respect of which the sentencing judge had made comment, rather:

...in a case where the conviction was the foundation for the exercise of the discretionary power, no challenge could be made to the fact of the conviction or to the essential facts on which it was based.

The administrative appeals Tribunal, when it is reviewing a decision to deport, is not bound by or limited to all the findings of fact made by sentencing judge in the course of giving it his reasons for sentence. The function of sentencing a person convicted of a crime is a different function from that of deciding whether or not the convicted person should be deported. Matters which may be of great significance to a decision to deport, because for example they go to the risk of recidivism, may be of little significance to a sentencing judge. In the present case, for example, where a long term of imprisonment was imposed because of the nature and seriousness of the crime, it was not necessary for the sentencing judge to determine whether [the applicant]'s crime was an isolated event or formed part of a pattern of drug-related activity on his part. From the point of view of deportation, however, such a matter was important. The Tribunal had to form a view as to whether [the applicant] was such a person as should be allowed to remain in Australia.

1. However a distinction has been made between the approach to be adopted with respect to convictions on which the exercise of discretionary power is based and other convictions forming part of the applicant's offending history. In Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313 (Ali) at [38], Branson J considered the authorities and outlined the following principles in relation to how decision-makers should treat evidence of criminal convictions:

[41] First, it seems to me to be clear beyond argument that the administrative decision-maker is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence were necessarily.

[42] Secondly, the overwhelming weight of authority is that where the conviction and sentence are the foundation of the exercise of the power vested in the applicant by s 200 of the Act, the Tribunal, when reviewing the decision of the Minister, may not impugn or go behind either the conviction or the sentence.

[43] Thirdly, although there is no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based, policy considerations suggest that the legislature intended that the Act, to the extent that it is concerned with the control in the public interest of the presence of non-citizens in Australia who have been convicted of criminal offences, should be administered in a way which:

(a) recognises that the criminal justice system is pre-eminently suited to the determination of the guilt of persons charged with criminal offences; and

(b) limits inconsistency between decisions of the criminal courts and those of tribunals.

As a consequence, in my view, the Act should be construed as requiring a decision maker under s200 of the Act to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted. This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing.

[44] Fourthly, although a decision maker under s200 of the Act may, in a case in which the heavy onus on a person who seeks to challenge the facts essential to a criminal conviction and sentence (other than that on which the power to deport is based) is satisfied, accept evidence which contradicts such facts, he or she is not entitled to reach or express a view that the person was wrongly convicted.

[45] Fifthly, the above limitations on the matters to which a decision maker under s200 of the Act is entitled to have regard do not mean that the decision maker is not (subject to such limitations) to make his or her own assessment of the entirety of the conduct of the person whose deportation is under consideration, including the nature and seriousness of conduct which led to convictions and the significance of such conduct so far as the risk of recidivism is concerned.

While her Honour was considering an earlier version of the Act (section 200 of the Act as it then was) the Tribunal considers that the principles articulated are applicable to the exercise of statutory powers under section 501.

1. In HZCP, Bromberg J's detailed consideration of the authorities[6], summarised the principles to be applied as follows [at 78]:
   • (1) Where a previous conviction is the foundation for the exercise of power by the decision maker, no challenge can be made to the fact that the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
   • (2) Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on the person seeking to challenge the facts upon which the conviction is necessarily based.

1. Applying the principles expressed in the authorities and summarised by Bromberg J, the Tribunal can consider the entirety of the Applicant's conduct including the circumstances of the offences. However with respect to the conviction and sentence upon which the power to deport is based, the Tribunal cannot go behind the fact of the conviction or sentence or the essential facts on which they are based. With respect to other convictions there is a "heavy onus" on the Applicant where they seek to challenge the facts upon which those convictions are based.
2. At the hearing the Tribunal explained to the Applicant the submissions made by the Respondent regarding his evidence challenging the factual circumstances of his convictions and sentencing. The Tribunal explained that the Respondent maintained that the Tribunal could not go behind the convictions on which the mandatory Visa cancellation was based. The Tribunal also explained that the Respondent submitted that the Applicant's denial of the facts as found by the jury and the sentencing judge raised doubt about the degree to which the Applicant accepted responsibility and was remorseful for those acts. Further, the respondent suggested that the failure of the Applicant to recognise the full extent of his criminal conduct may increase the likelihood that he may reoffend in a similar way in the future (Transcript, pages 76-77).
3. In response, the Applicant stated:

Well, the - well, this is a character test after all, so my character's to be that of truth, I say. So I really do think that there was some facts in there that were

over-exaggerated. As for the physical violence, I don't deny that. I said - I said that. Yeah, there's just - there's definitely things in there where - that - that just don't sit right with me. And to just say that I - that I accept it is just to lie. And I don't want to lie to you. Or else I wouldn't have taken it to trial.

(Transcript, page 77)

1. The Tribunal accepts that it is bound by the principles espoused in the authorities and summarised by Bromberg J in HZCP. One difficulty in applying such principles in the present case, and one which may arise in many cases where the exercise of the power under section 501 is being reviewed is that it may not always be evident on which particular conviction the exercise of power is based. This is because it is not uncommon for an Applicant to be convicted on one occasion of a number of offences in respect of several of which he/she may have been sentenced to terms of imprisonment of more than 12 months. The Respondent's submitted that this was such a case because the Applicant was convicted on the same date of three offences for which he received a sentence of imprisonment of more than 12 months, each of which would trigger the mandatory cancellation.
2. While the Tribunal accepts that there may be circumstances where it is unclear from the delegate's decision which conviction is identified as giving rise to the mandatory cancellation. In this case the delegate's decision refers to the applicant's conviction on

20 December 2017 for the offence of "unlawfully assault and thereby did bodily harm with circumstances of aggravation", for which the Applicant was sentenced to 18 months imprisonment (R1, G3, page 11). That was the unlawful assault offence which occurred on 5 June 2016. On 20 December 2017 the Applicant was also convicted of "deprivation of liberty" for which he was sentenced to 18 months imprisonment to be served concurrently. This was the conviction referred to in the cancellation decision on 9 March 2018 (R1, G34, page 109). That offence also occurred on 5 June 2016. He was also convicted at the same time of "unlawful assault and thereby did bodily harm with circumstances of aggravation" arising from the events on 21 June 2015. He received a 12 month cumulative sentence for that offence. 3. As noted above, section 501(6)(a) of the Act provides that a person does not pass the character test if they have a "substantial criminal record" as defined by s 501(7) 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" (s 501(7)(c) of the Act). The Minister must cancel a visa that has been granted to a person who does not pass the character test because they have a substantial criminal record on the basis of section 501(7)(c) and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory (By operation of section 501(3A) and sections 501(6)(a) and 501(7)(c)). 4. In the Tribunal's view it follows that while the decision makes reference to one of the three offences for which the Applicant was convicted of 12 or more months in prison (the mandatory cancellation offences), each and any of those offences met the definition of substantial criminal record under the act and as such was the basis for mandatory cancellation of the visa and subsequent exercise of discretionary power under

s 501CA(4). In such circumstances, applying the authorities, the Tribunal accepts the Respondent's submission that it should not go behind or impugn any of these three convictions. 5. Accordingly the Tribunal accepts that the Applicant was convicted of two separate counts of "unlawfully assault and thereby did bodily harm with circumstances of aggravation" (one occurring on 21 June 2015 and another on 5 June 2016) and one count of "deprivation of liberty" (occurring on 5 June 2016). The Applicant was also convicted on the same occasion of two counts of "criminal damage or destruction of property" (one count occurring on 21 June 2015 and another on 5 June 2016). He was convicted with a further count of "Creating false belief" which arose from the events which occurred on

5 June 2016. For each of those further offences he received a sentence of three month's imprisonment with each to be served concurrently. The Tribunal accepts these convictions as "highly probative of the truth of the factual matters essential to the conviction".[7] 6. As noted above, the Applicant was found guilty by a jury and at the sentencing hearing his Honour gave a detailed account of the findings of fact on which the conviction and sentence was based. Some of these findings are specific to particular offences on the indictment and are expressed as such. However many of the findings are in more general terms about the circumstances of the events which have unfolded and during which the offences were committed. As such it may be difficult to distinguish between the "essential facts" on which the convictions giving rise to cancellation of the visa are based (those facts which cannot be challenged) and those which relate to other convictions or more broadly the circumstances of offending (those which may be open to greater scrutiny). 7. In the Tribunal's opinion, having regard to the three mandatory cancellation offences, a large number of the facts denied by the Applicant in testimony must be regarded as "essential facts". These would include that on or about 21 June 2015 the Applicant "grabbed [his partner] around the shoulders and forcefully pushed her to the ground" as a result of which she fractured her clavicle (R1, G7, page 28) giving rise to the conviction for unlawful assault. Further, that on 3 June 2016, the Applicant strangled his then partner, threw her against a coffee table, pulled a television set down on her head, bit her and pushed her head into the sand and threatened her with a knife. As a result the victim received bruises on her neck and a laceration of the right finger thereby giving rise to the second conviction for unlawful assault. Further the victim could not escape from the house as the front door to the house was locked giving rise to the depravation of liberty charge. The Tribunal must also accept as fact that circumstances of self-defence as claimed by the Applicant and rejected by the jury who were not present. As the sentencing judge found:

I accept that she didn't shove you or push you in the back or chest. She didn't threaten you at any stage with the knife. She didn't scratch your face. She was not striking you. She didn't have the knife in her hand and all of that is consistent, all of those findings are consistent with the rejection of your defence at trial of

self-defence which the jury clearly rejected.

(R1, G7, page 31)

1. The Respondent submitted, and the Tribunal accepts, that a rejection of the Applicant's defence of self-defence must be an essential fact on which the conviction is based. Accordingly, large parts of the Applicant's evidence seeking to establish that he was himself the victim of assault and defending himself from his partner during a domestic argument must also be rejected.
2. In any event, the Tribunal notes that the Applicant did not offer any corroborating evidence to support his account of the events in challenging the convictions or the factual findings of the sentencing judge. The Tribunal notes that the Applicant testified that he elected not to give evidence at the trial on the advice of his then lawyer. That he elected not to do so was an appropriate exercise of his rights as a defendant and the Tribunal draws no negative inference from that decision. However, the account the Applicant gave of the events of 21 June 2015 and 5 June 2016 was markedly at odds with the findings of the jury and sentencing judge. His account of events was directly contrary to a third party witness (the Applicant's former flatmate) who testified at the hearing and was cited by the sentencing judge and to the statements of material facts provided by the police. It was significantly at odds with the testimony of the victim as reflected in her statements to police and comments of the sentencing judge. It was also inconsistent in at least one respect with the testimony of his now partner,

Ms McKenna, who when asked what she knew about the first set of offences "I know he pushed the fish tank just out of anger" (Transcript, page 49). The Applicant denied having pushed the tank, claiming to have tripped and fell, grabbing the fish tank as he did so (Transcript, page 16). 3. Having regard to all the evidence, the Tribunal is unable to accept the Applicant's version of events as credible, even where it is open to the Tribunal to do so. This is because the evidence falls well short of discharging the "heavy onus" which falls on an Applicant seeking to challenge the facts upon which the conviction is necessarily based. The Tribunal is not satisfied on the Applicant's evidence that there is any basis for going behind the convictions giving rise to lesser terms of imprisonment, or to reject the facts as found by the sentencing judge. 4. In this regard the extent of the Applicant's denial of the facts of the offences gave rise to a concern for the Tribunal both with regard to his credibility as a witness but also to the genuineness of the remorse he expressed for his offending behaviour and his acceptance of responsibility for those acts and their consequences. These matters are dealt with further below.

First primary consideration: Protection of the Australian community (paragraph 13(2)(a) of Direction no. 79)

1. Paragraph 13.1(1) of Direction no. 79 provides that:

(1) When considering protection of the Australian community, decision-makers should have regard to the principle that 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 non­citizens 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...

1. Paragraph 13.1(2) of Direction no. 79 then provides:

(2) Decision-makers should also give consideration to:

1. The nature and seriousness of the non-citizen's conduct to date; and
2. The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

1. As noted above the he Applicant made a number of submissions in relation to his offending and the protection of the Australian community. In summary, these submissions were that:
   • His offences were caused by alcohol consumption. He has taken steps to become, and to remain sober, and rehabilitated and as a result is a low risk for

reoffending; * He takes responsibility for his past actions and the devastating effect they have had on his life and that of his friends and family and as a result is a low risk of

reoffending; * His offences were specific to a difficult personal relationship he was in at the time and his actions do not present a risk to the Australian community; * His partner and her family and his friends will provide a support network for him on re-entry to the community which will reduce the risk he will offend or resume consumption of alcohol. 2. The Applicant submitted that, as a result of these factors, if the Reviewable Decision was revoked, his risk of reoffending would be low and the protection of the Australian community would not require that his visa remained cancelled. 3. The Respondent contended that the protection of the Australian community weighed heavily against revocation (R2, [35], page 10). 4. The Respondent submitted that the Applicant's offending should be viewed as very serious having regard to the following factors: * (a) the Applicant's offences involved significant acts of violence against his then partner, offences which were identified in the direction as serious and which were committed against persons identified in the direction has vulnerable members of the community; * (b) the seriousness of the offences is also reflected in the comments of the sentencing judge and the sentence imposed by the court. The fact that the Applicant received a lengthy sentence in his first time before the court indicates the gravity of the offending: * (c) the domestic violence nature of the assault convictions presents particular concerns given the risk such offences pose to vulnerable members of the community. 5. The Respondent submitted that the Applicant represented an unacceptable risk of harm to the Australian community having regard to: * (a) the nature of the offences and the nature of the harm to individuals, including vulnerable persons should the applicant engage in further criminal conduct of this nature the Australian community should not be expected to tolerate any rick of recidivism.

Nature and seriousness of the conduct (paragraph 13.1(2)(a) of Direction no. 79)

1. Paragraph 13.1.1(1) of Direction no. 79 further provides:

(1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to factors including:

1. The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
2. The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

1. The principle that 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, are serious;

1. Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
2. The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
3. The cumulative effect of repeated offending;
4. Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
5. 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);
6. Where the non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act.

1. The Tribunal notes that the Applicant has travelled to twice to Australia prior to his current arrival when he commenced residence in Australia. One of those visits was for one day and one was for four months. The Tribunal notes that there is no evidence of the Applicant having committed any offences on either of those visits.
2. As noted above, the Applicant arrived in Australia to commence residence in January 2014. The offences for which he was convicted on 20 December 2017 related to two separate incidents. One of these was on 21 June 2015, around 18 months after the Applicant arrived in Australia. The other was on 5 June 2016. The victim of the Applicant's offences on both occasions was the Applicant's then partner.
3. The events of 21 June 2015 gave rise to 2 charges:
   • unlawfully assault and thereby did bodily harm with circumstances of aggravation; and
   • criminal damage or destruction of property.

The Applicant received a 12 month cumulative sentence for the unlawful assault offence and a three-month concurrent sentence for the criminal damage offence.

1. The events of 5 June 2016 the gave rise to four charges:
   • unlawful assault and thereby did bodily harm with circumstances of aggravation;
   • criminal damage and destruction of property;
   • deprivation of liberty; and
   • creating false belief.
2. The Applicant received an 18 month cumulative sentence for the unlawful assault offence, a three-month concurrent sentence for the criminal damage offence, an 18 month concurrent sentence for the deprivation of liberty offence, and a three-month concurrent sentence for creating false belief.
3. The Applicant's first offences in Australia, were committed only 18 months after arriving in Australia. The Applicant does not have a long history of frequent offending, nor has his offending history increased in seriousness since his arrival (paragraph 13.1.1(1)(e)).
4. The Respondent also referred the Tribunal to the comments of Deputy President Kendall (as His Honour then was) in XFKR and Minister for Immigration and Border Protection [2017] AATA 2385 (XFKR) (discussed further below), where Deputy President Kendall noted the serious impacts of domestic violence.[8]
5. The Tribunal has regard to the fact that the Applicant does not have a long history of offending and has shown remorse for his actions and taken steps towards rehabilitation. In sentencing the Applicant, His Honour noted that:

...you have no prior criminal history in relation to this offending, this type of offending or offending generally so you've been able to live an offence-free life for some considerable time.

(R1, G7, page 32)

1. His Honour went on to note the Applicant's efforts at rehabilitation as follows:

Whilst remanded in custody for the period initially after the six-month period you've done an emotional management course which is to your credit. The author of the psychological report considers it demonstrated genuine interest and commitment to the course.

You've also completed other courses through Community Justice Service and I accept notwithstanding that the certificates have not been provided, I accept that you have taken very positive steps in your rehabilitation.

1. His Honour went on to further note that the Applicant had recognised alcohol is a factor in his behaviour and that the psychological report had "...identified alcohol issues as your main criminogenic need". (R1, G7, page 32).
2. His Honour made the following observations about the content of the pre-sentencing psychological report:

...the author of the pre-sentence report notes that you accepted responsibility now for the offending. You accept responsibility for the use of your physical and verbal abuse which occurred on those two occasions.

In the report the author of the pre-sentence report notes that you've presented with insight and expressed empathy for the complainant and these are positives in the circumstances. In summary, the author of that report considers that you would benefit from treatment.

The psychologist, as I've said, sets out in some detail your background, your circumstances and your antecedents. The author of the report noted that you presented as depressed at the interview and in relation to risk assessment... You presented as being with view of the risk factors and a low risk of future violence.

(R1, G7, page 33)

The most salient factors pertinent to him being alcohol misuse and some early maladjustment amid claims Mr Toki had an unhappy childhood due to breakdown of the family, being shuffled between family and friends and bullying at school....

However, there's little to indicate the Mr Toki poses significant risk of future violence....

Overall Mr Toki is unlikely to pose any challenges to risk management in the community.

(R1, G7, page 33)

1. The Tribunal notes that the Applicant accepted that he had convicted of offences related to domestic on two separate occasions 12 months apart. He accepted that he had engaged in violent behaviour towards his partner on one occasion (the second), however, as outlined above, he contested significant elements of the findings of the Court in relation to the offences, including denying the first set of offences against his partner.
2. The facts of the Applicant's offending as found by the Court are detailed above. Those facts included findings that the Applicant assaulted his then partner, who was a woman, on two separate occasions around 12 months apart. Paragraph 13.1.1(1)(a) of

Direction no. 79 states the principle that violent crimes are to be viewed seriously. The Applicant's unlawful assault convictions qualify as violent crimes and accordingly are to be viewed seriously. 3. Paragraph 13.1.1(1) of Direction no. 79 provides that:

(1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to factors including:

1. The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed.

1. The Tribunal finds that the Applicant was convicted of crimes of a violent nature against a woman and as such is to be viewed very seriously. While the direction indicates that they are to be so viewed regardless of the sentence imposed in this instance the Tribunal regards the fact that the Applicant was sentenced to an effective term of 2½ years in prison notwithstanding it was the first occasion he had appeared before the court in Australia reflected the serious nature of the offences and was a significant sentence in the circumstances.
2. Applying paragraph 13.1.1(1)(d) of Direction no. 79, prior to the Applicant's conviction for the offences for which he was sentenced on 20 December 2017, the Applicant had been sentenced to community service and disqualified from driving in New Zealand. There is no evidence he had been convicted of any other offences. The Applicant's lack of history of offending over an extended time must be said to weigh in his favour and support his submission that the offences were out of character and resulted from alcohol consumption.
3. With respect to the sentencing of the Applicant, Stavrianou DCJ, determined that a term of immediate imprisonment was appropriate rather than a suspended sentence, given the nature, gravity and extent of the applicant's offending (R1, G7, page 37). His Honour did so taking into account a term of imprisonment was a penalty of last resort. In considering the sentence to be imposed His Honour noted:

...your reaction to all the circumstances was totally out of all proportion to the incident.

... Now, any violence and the offence of assault occasioning bodily harm is a serious offence. The aggravated offence in this situation involved you committing the violence [sic] offence in the circumstances of the relationship and the courts have constantly - the Court of Appeal has said on a number of occasions that general deterrence in relation to violence in a relationship is a consideration of significance and I do take that into account.

I have considered all of the options in relation to this matter. Your counsel submitted to me that I should suspend any term of imprisonment, if I was minded to impose a term of imprisonment. I've also considered all of the other options available to me under the Sentencing Act and in the end I considered that the choice in relation to this matter is between imposing a term of imprisonment to be immediately served or suspended term either conditionally or otherwise.

I accept that only if I'm satisfied that it's not appropriate to impose a term of a suspended imprisonment should I impose a term of imprisonment which is to take effect immediately. I accept that a term of imprisonment is a penalty of last resort and I accept that I shouldn't impose such a term unless the seriousness of the offence is such that only imprisonment can be justified or [sic] the protection of the community requires it...

In my view, the total criminality involved in relation to all of the offences is such as to warrant a sentence of two years, six months imprisonment.

1. The Tribunal notes that the Applicant acknowledged his offending was serious and expressed remorse for his actions. He maintained that his offending was caused by alcohol use and that he had changed and turned his life around. He acknowledged his actions at the hearing:

I've definitely learnt my lesson. I've spent years of my life, a few years, (indistinct) two and bit years in a place where, you know, that's all added together where I've had to learn how to deal with my mistakes. Don't get me wrong I take responsibility for what I've done. That's the hardest thing for me.

(Transcript, page 75)

1. While the Tribunal accepts the Applicant is genuinely remorseful for the impact his actions have had on his family and that he recognises alcohol played a role in his offending, in the Tribunal's view that does not lessen the seriousness of the offences or their impact on the community. The fact that his offences were directed at one member of that community does not lessen their seriousness. In this regard the Respondent drew the Tribunal's attention to the comments of Deputy President Kendall (as his Honour then was) in XFKR at [45]:

...in a society that adheres to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systematically intolerable, Its harms are threefold: First: it results in direct physical and psychological harm for those women against whom the violence is directed. Second, it psychologically harms the children of these ...and sends a message to those children (male and female) that behaviour of this sort is to be tolerated..... Third, it normalises those socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. The impact this has, socially, on systematic equality between the sexes cannot be underestimated.

1. The Tribunal agrees with the views expressed in XFKR. While fortunately no children were exposed to the Applicant's violence towards his partner in this instance, violence against women in domestic relationships reinforces social inequalities which further perpetuate violence against women. The impact of this kind of offending is reflected in the specific identification in Direction no 79 that such offences should be considered to be 'very serious' regardless of the sentence imposed.
2. With respect to the cumulative effect of repeated offending (paragraph 13.1.1(1)(f) of Direction no. 79), the Tribunal notes that the Applicant offended over a relatively short period of time.
3. The Respondent provided copies the Applicant's incoming passenger card for 19 July 2015 (R1, G32, page 106). On the card, in response to the question 'Do you have any criminal convictions?' the Applicant ticked 'No'. This was despite the fact that he had a conviction for driving while suspended ("drove license suspended or revoked") in New Zealand in November 2006. This may suggest that the Applicant provided false or misleading information to the Department, by not disclosing prior criminal offending on his incoming passenger card (paragraph 13.1.1(1)(g) of Direction no. 79). He was convicted and sentenced to community work and driving disqualification for this offence. The matter was not raised at the hearing and the Applicant submitted to the delegate that he did not understand his New Zealand record was a criminal conviction for the purposes of the question on the passenger card (R1, G16, page 71). The Tribunal accepts that at the time of filling out the 2015 passenger card the Applicant did not appreciate that the 2006 offence constituted a criminal conviction. This may speak to the Applicant's lack of appreciation of the seriousness of such offences but the Tribunal finds that the Applicant's response was not intentionally false. On that basis his responses on the 2015 card do not add to the seriousness of his offending history and conduct and the Tribunal does not place significant weight on this.
4. Paragraph 13.1.1(1)(h) of Direction no. 79 is not applicable because the Applicant has not previously received any warning that further offending may affect his migration status.
5. Paragraph 13.1.1(1)(i) of Direction no. 79 is also not applicable because there is no evidence that the Applicant has committed any crimes in immigration detention.
6. Having regard to all the evidence including the circumstances of the Applicant's conduct and offending, the Tribunal finds that the Applicant has a history of repeated violent offences against a woman with whom he was in a relationship. While the Tribunal recognises that the Applicant was only convicted of offences occurring on two separate occasions 12 months apart, the nature and circumstances of those offences were serious. The Tribunal finds that the nature of the Applicant's offending is very serious and weighs against exercising the discretion to revoke the cancellation of the visa.

The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2 of Direction no. 79)

1. A decision-maker should also have regard to the following principle, described in paragraph 13.1.2(1) of Direction no. 79 as follows:

(1) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

1. The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
2. The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

1. Senior Member Evans in CZCV and Minister for Home Affairs [2019] AATA 91 summarised the task for the Tribunal as follows:

56. ... the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]- [43]):

An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.

57. In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 Moshinsky J stated that, at [68]: "...there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational." Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring a "rational and probative basis"

1. The Applicant denied significant elements of the offences. His evidence, in general terms, was that the events had been misrepresented by his former partner, police and witnesses to make it appear he was the sole protagonist when in fact the offences arose from domestic disputes where both parties engaged in violence and where he was himself a victim submitted that he is a changed person and will not reoffend (Transcript, page 75). As noted above, the Tribunal does not accept the Applicant's account of the events or his challenge to the factual basis for the convictions. The Tribunal does not accept that the Applicant acted in self-defence or that the seriousness of his offending was lessened by the fact he was in a domestic relationship with the victim and the violence was in the context of a relationship which, in the words of the sentencing judge, was "not always harmonious" (R1, G7, page 28).
2. He maintained he was not, and had never been, a risk to the community. He stated that he had:

been in the community before, there's no way in hell the community has ever felt threatened of me, whether that's going shopping, whether that's just walking down the street. I haven't imposed anything of such life-threatening behaviour. As a matter of fact I'm scared of just confrontation now.

(Transcript, page 76)

1. With respect to the nature of the harm that could result if the Applicant is to reoffend and the likelihood of the Applicant engaging in further criminal or other serious conduct, the Respondent submitted that the Applicant has been convicted of offences involving significant violence towards women and that the harm that could be caused should he offend again means the community "should not be expected to tolerate a risk of similar offences being repeated" (R2, page 10, par 31). The Respondent pointed to the fact the offences were committed on two separate occasions a year apart, that the offending commenced a short time after the Applicant arrived in Australia and the convictions were recent and that his rehabilitation remains untested in the community. The Respondent submitted that any risk of recidivism was unacceptable given the harm which could be caused should he commit similar offences in the future.
2. Applying paragraph 13.1.2(1)(a) of Direction no. 79, the Tribunal finds that the nature of harm that could result if the Applicant is to reoffend is serious. The Applicant has a history of violent offences against women. One of the aggravating factors of that violence was that it occurred in a domestic relationship. Such violence is held to be serious because of the impact not just on the direct victims of that violence but on the broader community. Were the Applicant to continue to engage in violent conduct of this nature, the potential physical and psychological damage to his current or future partner/s and others who might be exposed to or influenced by that violence would be serious.
3. The Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community (paragraph 13.1.2(1)(b) of Direction

no. 79). 4. In relation to the Applicant's risk of reoffending a 'Psychological Report for Court' (the Report) was prepared for the sentencing judge (R1, G17, pages 73-80). The copy of the Report before the Tribunal was heavily redacted, rendering some sections of little value. However, the main thrust of the Report's findings with respect to the Applicant's risk of reoffending remained clear. 5. The report noted that "Mr Toki's alcohol dependency issues appear to be his main criminogenic need" (R1, G17, page 75). The Report also noted that the Applicant's personality and diagnostic assessment results were consistent with alcohol dependency and "indicative of features consistent with anxiety and depression" and "[d]ependant personality features" (R1, G17, page 76). 6. The Report included a risk assessment for future violent offending. The report states:

Mr Toki presents with few of the risk factors known to correlate with future violence, the most salient factors pertinent to him being alcohol misuse and some early maladjustment, amid claims Mr Toki had an unhappy childhood due to the breakdown of the family unit....and, bullying at school. However, there is little to indicate that Mr Toki poses a significant risk of future violence. Mr Toki reportedly has no prior history of violence and he shows reasonable insight about his current offences and the impact of alcohol misuse as a major contributing factor. This could be consolidated if he maintains his commitment to abstain from alcohol.

(R1, G17, page 77)

1. The Report noted that Mr Toki had a number of positive factors associated with risk management including stable housing and employment and a willingness to undertake treatment. The Report noted (R1, G17, page 77):

There is little to indicate the presence of pro-violence beliefs or a history of violence in other domestic relationships.

Overall, Mr Toki is unlikely to pose any challenged to risk management in the community.

1. The Report recommended programme intervention for alcohol misuse "to help Mr Toki develop strategies for coping more effectively in the face of stress and upheaval in relationships" and an emotional management programme. (R1, G17, page 78)
2. The Applicant submitted evidence, in the form of a letter from Acacia Prison, that he had attended 12 meetings of Alcoholics Anonymous while in prison (R1, G18, page 81). He also submitted evidence of having completed a basic workshop in 'Peaceful Pathways' while in prison (R1, G19, page 82).
3. A Department of Justice Immigration Report indicated Mr Toki received no charges while in prison and was "an exceptional worker who has a positive attitude, takes pride in the work he completes and is always polite to fellow prisoners and Officers."

(R1, G9, page 42). 4. According to an Individual Management Plan prepared by the WA Department of Corrective Services, a Risk-of-Reoffending-Prison Version was administered in the Applicant's case and he "...scored low and as such further assessment to determine criminogenic needs is not currently required." Therefore he was not recommended for criminogenic programs "...due to low risk of reoffending"(R1, G10, page 46). While the Tribunal does not have the details of the Applicant's parole it notes that the Applicant was paroled and takes this into account in his favour. The Tribunal also notes that it appears from the record that the Applicant complied with the conditions of his bail and home detention, including drug and alcohol testing (A1, page 1). 5. The Applicant submitted at the hearing that he had committed to alcohol rehabilitation programs and had been successfully in completing these and maintaining sobriety, including when on bail in the community for 13 months prior to sentencing:

As for the alcohol and the programs that I've done, I think that should weight [sic] a fair bit more than what they just glaze over. I've completed courses with flying colours. I've done supervision orders, reporting alcohol drug analysis, things like that...

(Transcript, page 75)

1. The Applicant submitted a number of third-party character references from friends and family supporting his application for revocation (R1, G20, pages 83-105; A2, Supporting Documents). Many of these made reference to the Applicant's violent offences being out of character and referred to his commitment to rehabilitation and sobriety. They note his remorse and his potential to make a positive contribution to the community.
2. The Applicant's fiancé testified that the Applicant had never shown violence or aggression during the relationship. She attested to his commitment to rehabilitation and to their future plans together (R1, G25, pages 89-94 and G26, page 95; A2, pages 142-143).
3. The Respondent submitted that the Applicant's insistence on challenging the factual findings of the Court with the respect to his convictions cast doubt on the genuineness of his remorse and increased the risk he may reoffend. It is not clear from the Report whether Mr Toki presented the same version of events to the psychologist as he did to the Tribunal. He indicated at the hearing that he did (Transcript, page 42) and while the section of the report relating to the circumstances of the 'index offence' was heavily redacted it appeared that the psychologist at least formed the impression that Mr Toki sought to lessen the extent of his offending. The Report states:

While remorse was evident, Mr Toki nonetheless gave the impression that his behaviour was made to look far worse than it was.

(R1, G17, page 76)

1. While the Tribunal was concerned that some of the Applicant's responses denying factual elements of the offences appeared to indicate a lack of insight into his offending, a fair reading of the Report suggests that the risk assessment was based on account of events by the Applicant to the psychologist which similarly sought to lessen the impact of or excuse the behaviour. It is not clear whether the psychologist accepted Mr Toki's account of the events. Either way, the assessment was that the Applicant did not pose a significant risk of future violence. The Tribunal accepts that assessment, however the Tribunal also accepts that it could not be said that the Applicant is genuinely remorseful for acts he maintains he did not commit. He appears remorseful for the effect his conviction has had on him and his family and for the one act he accepts he committed, striking his then partner with the back of his hand, but beyond that his remorse and commitment to reform appears to be directed at avoiding further custodial sentences. It does not appear that his motivation is inconsistent with the findings of the Report or with an assessment that there is a low risk that the Applicant will reoffend. However in the Tribunal's view it suggests that the Applicant has not fully appreciated the gravity of his offending and the seriousness with which such conduct is viewed, or indeed that such conduct is unlawful.
2. These instances suggest that while the Applicant talks about taking responsibility for his past actions he attempts to diminish the seriousness of those offences. In the Tribunal's opinion this failure to accept the seriousness of his past actions may contribute to a likelihood that he would engage in similar conduct in the future in the not unlikely event that he is faced with similar stressors.
3. The Tribunal accepts that the Applicant has support from his friends and from his fiancé's family in Australia. He testified that he does not have a relationship with his parents. His father lives in Singapore and his mother is in New Zealand. He described himself as the black sheep of the family because he was not involved with drugs. The Tribunal accepts that the Applicant's network in Australia provide supportive factors against reoffending. However, the Tribunal also notes that the stressors which caused the Applicant to offend, work stress and relationship tension, may arise again when he is in the community and as such a risk of reoffending, while low, cannot be ruled out.
4. Based on the evidence before it, the Tribunal finds that there is some likelihood that the Applicant may reoffend, although the evidence before the Tribunal suggests that the likelihood of reoffending is low and depends on the Applicant's capacity to commit to and follow through with alcohol rehabilitation and programs to manage conflict non-violently, particularly within relationships.
5. Based on the above discussion, the Tribunal finds that there is a low likelihood of the Applicant reoffending should he be given a further chance to be released back into the Australian community. With regard to paragraph 6.3(4) of Direction no. 79, the Tribunal finds that the circumstances of the Applicant's convictions for violence again a women in a domestic relationship and the serious nature of the harm that can result to victims of this type of offending, mean that even a low likelihood of reoffending in the future presents a risk which the community should not be expected to bare. On balance, the Tribunal finds that this consideration weighs against the revocation of the cancellation of the Applicant's visa.

Second primary consideration: The best interests of minor children in Australia (paragraph 13(2) (b) of Direction no. 79)

(1) Decision-makers must make a determination about whether revocation is in the best interests of the child.

(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.

(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

1. Paragraph 13.2(4) of Direction 79 outlines the factors that a decision-maker must consider when determining the best interests of a child:

1. 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); 2. 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;

1. The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conducts has, or will have a negative impact on the child;

1. 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; 2. Whether there are other persons who already fulfil a parental role in relation to the child; 3. Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child); 4. Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and 5. Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
2. The Applicant has one daughter from a prior relationship who is living in New Zealand. She is six years old. The Applicant has not had contact with her since he was convicted. He indicated he wants to see her however the child's mother is not allowing him access to her. Ideally he would like to bring her to Australia but he recognises he would need to pursue this in New Zealand probably through the Court system but wants to do so once he resolves his status here (Transcript, page 40) .
3. As the direction refers to consideration of the best interests of minor children who are in Australia, the interests of the Applicant's daughter do not appear to be relevant to this primary consideration. There is no evidence that there are any minor children in Australia who will be impacted by the revocation of the Applicant's visa. In such circumstance this primary consideration is not relevant to the Tribunal's consideration.

Third primary consideration: Expectations of the Australian community (paragraph 13(2)(c) of Direction no. 79)

1. Paragraph 13.3(1) of Direction no. 79 provides:

The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust, or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation 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 hold a visa. Decision-makers should have due regard to the Government's views in this respect.

1. Paragraph 6.3(2) of Direction no. 79 sets out the following principle:

The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

1. A further relevant principle is set out in paragraph 6.3(3) of Direction no. 79 as follows:

A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

1. In the case of YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY)[9], Mortimer J made the following comments:

[76] In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the 'expectations' about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to 'tolerance') the Australian community's 'expectations' are defined only in one particular way: namely, that the Australian community 'expects' non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.

[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese v Minister for Immigration & Border Protection [2016] FCA 348; 248 FCR 296 at [64]-[66]).

1. In YNQY the Court was, in part, considering whether the Tribunal erred in failing to make findings and/or take into account as a primary consideration the expectations of the Australian community.
2. The following passage referred to by Mortimer J in Uelese v Minister for Immigration & Border Protection [2016] FCA 348; (2016) 248 FCR 296 (Uelese) states as follows:

[64] In my opinion, the reference by the Tribunal to what the Australian community expected of the Australian Government was not a matter that required evidence but was a statement of the views or policy of the Government. The language in paragraph 6.3(2) of the Direction, that the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia, is found in a list of seven 'Principles'. There is a further reference to the expectations of the Australian community in paragraph 9.3 of the Direction where the statement is made that the Australian community expects non-citizens to obey Australian laws while in Australia. It states that where a non-citizen has breached, or where there is an unacceptable risk that they will breach, this trust or where the non-citizen has been convicted of offences in Australia, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate, the paragraph states, 'simply because the nature of the character concerns or offences were such that the Australian community would expect that the person should not continue to hold a visa'. The paragraph ends by stating that decision-makers should have due regard to the Government's views in this respect.

[65] ... In my opinion it is open to the Minister to make a statement of the Government's views as to the expectation of the Australian community and for the Tribunal to act on that statement.

1. Deputy President Rayment, QC in the case of Kumeroa and Minister for Home Affairs [2018] AATA 3744 at [17] also applied YNQY.[10]
2. The Tribunal notes that both Direction no. 79 and the relevant authorities on the application of Ministerial Directions to decisions under s 501 of the Act make it clear that the Tribunal must take into account the primary and other considerations relevant to the individual case.[11] Direction no. 79 specifically notes that both primary and other considerations may weigh in favour of either to revoke or not to revoke a mandatory cancellation of a visa (paragraph 8(3) of Direction no. 79). While Direction no. 79 states that a primary consideration should generally be given more weight than the other considerations, the authorities make it clear that this will depend on the individual circumstances and will still require the Tribunal to take into account both the primary and other considerations and to give each appropriate weight in reaching a decision.[12]
3. The Federal Court's decisions in YNQY and Uelese do not raise the expectations of the Australian community to the status of a determinative consideration. The approach outlined by the Federal Court highlights that it is open to the Minister to make a statement of the Government's views as to the expectations of the Australian community and that Direction no. 79 makes such a statement. Applying YNQY and Uelese, the Minister makes this statement in the principle expressed with respect to 'serious crimes' in paragraphs 6.3(2) and more generally in 13.3(1) of Direction no. 79. Applying Uelese, paragraph 13.3(1) of Direction no. 79 directs that the Tribunal should have due regard to the Government's views in this respect.
4. In Afu and Minister for Home Affairs [2018] FCA 1311 (Afu) at [85] Bromwich J stated the following:

The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65 reproduced above. The Tribunal was required to give effect to those norms, which is precisely what it did.

1. Although YNQY and Afu concerned Direction no. 65, they are equally applicable to Direction no. 79. This is because there was no change to the wording of the paragraph concerning the expectations of the Australian community in Part A, B or C when

Direction no. 65 was updated to become Direction no. 79. 2. The Tribunal has considered the effect of Mortimer J's judgment in a number of decisions.[13] In some of those cases the Tribunal has found that the decision in YNQY, which the Tribunal is bound to follow, in effect requires the Tribunal in all cases to take this primary consideration of the expectation of the Australian community as being that the visa would be cancelled or not granted. 3. Alternatively, the Tribunal has considered that her Honour's comments, in particular the operation of the 'kind of deeming provision' (YNQY at [76] - see [146] above) by operation of which the expectation of the community is to be taken as being against revocation of the cancellation, is limited to cases referred to in the third sentence of paragraph

13.3(1) of Direction 79, namely, cases where 'the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa'.[14] 4. In the case of Margach and Minister for Home Affairs [2019] AATA 353 (published

5 March 2019) Deputy President Forgie, having quoted [76] and [77] of Mortimer J's judgment in YNQY, stated:

[86] I respectfully do not agree with the statement, if it be intended to be of general application, that it is inevitable that paragraph 13.3(1) would weigh against revocation. Paragraph 13.3(1), with which I am concerned and which was the subject of YNQY, is quite specific in its statement that the Australian community expects noncitizens to obey Australia's laws while in Australia but leaves open, for example, what is an "unacceptable risk" that non-citizens will breach that expectation or when the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa.

1. Deputy President Forgie goes on to state (at [86]):

Paragraph 6 generally, and paragraph 6.3 in particular, must be borne in mind. That is particularly so when regard is had to the general statement in 6.2(1)...

1. Further, she goes on to highlight that in applying the principles the Tribunal must have regard to the evidence (at [86]):

Granted that the principles are of critical importance, the determination of what is unacceptable must have regard to the evidence.

1. Member Eteuati, in Doan and Minister for Home Affairs [2019] AATA 169 (Doan) at [153] to [154], stated the principles which emerge from the case law as follows:
   1. ... First, the concept of community expectations is not a matter to be measured as though it is a provable fact. It is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is an assessment of community values made on behalf of the community.
   2. Secondly, the government's views in relation to community expectations are to be found in Direction 65 itself. It is open to the Minister to make a statement of the Government's [sic] views as to the expectations of the Australian community as it has in direction 65 for the Tribunal to act on that statement.

In order to ascertain the government's views on community expectations one must consider the direction closely.

1. On 11 April 2019 the Federal Court delivered two separate judgments which highlight some of the complexities facing the Tribunal in applying the direction as it relates to the primary consideration of the expectations of the Australian community. In DKXY v Minister for Home Affairs [2019] FCA 495 (DKXY), Griffiths J, having cited [76] and [77] of Mortimer J's decision in YNQY (see [146] above), supported a broad approach to the application of the direction stating, at [32], that it was not "inevitable" that the primary consideration of the expectations of the Australian community would always weigh against revocation. His Honour explained, at [31], that:

Undoubtedly, decision-makers who are bound to give effect to the Direction are required to have due regard to the Government's view regarding community values, standards and expectations, as set out in, for example, cll 6.2 and 6.3 of the Direction, but nothing in the Direction indicates that community expectations will always favour non-revocation. Indeed, the totality of the relevant circumstances which bear upon the assessment and weighing of all three primary considerations and other considerations need to be considered, as is made clear in many clauses of the Direction...

(Emphasis in original.)

In summary, His Honour was of the view that: "The Government's views have to be taken into account and given "due regard", but so must all other circumstances which are relevant to the particular case" (at [33]).

1. However, Perry J in FYBR v Minister for Home Affairs [2019] FCA 500 (FYBR), delivered on the same day as DKXY, preferred the narrow approach finding:

[39] There is therefore nothing in cl 8(3) which undermines the construction of cl 13.3 adopted by Mortimer J in YNQY (and applied to cl 11.3 by Thawley J in Oluwafemi), namely, that it expresses the expectation of the Australian community only in terms of the negative conclusion that it may be appropriate to refuse to grant the visa by reason of an applicant's commission of serious criminal offences.

...

[41] In the applicant's submission, this clause [paragraph 6.3(5) of Direction 65] expressly permits the decision-maker to take considerations which are subjective to an applicant into account. That is unquestionably correct. However, it does not mean that those subjective considerations must be taken into account by the Tribunal so as to reach its own conclusion about community expectations for the purposes of cl 11.3. Rather, provision is expressly made elsewhere in the Direction for individual or subjective considerations, such as the impact on family members and on victims, to be taken into account in the balancing exercise as "other considerations" in cl 12.

[42] It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government's view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant's submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant's circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the "norm" stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases....

[Emphasis added.]

1. It is not clear to this Tribunal what the effect is of the qualifying final words in [42] of the above decision. However, having regard to the context of the comments, in the Tribunal's view, they go some way to bridging the gap between the extreme versions of the broad and narrow approaches. Having found that the "norm" is that the expectations of the Australian community are that where paragraph 11.3 applies to an Applicant's circumstances, that is by reason or the applicant's commission of serious criminal offences it may be appropriate that the applicant not hold a visa. His Honour leaves open the possibility that that may not be so in all cases.
2. In practical terms and having regard to the authorities, the Tribunal broadly agrees with the approach articulated by Member Eteuati, in Doan. The Tribunal notes that with respect to determining whether "the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa" (the third sentence of paragraph 13.3(1) of Direction 79) close consideration of the direction indicates that where a non-citizen has committed a 'serious crime' the expectation is that their visa will be cancelled. This is the import of paragraph 6.3(2) of

Direction no. 79 which was cited in the passage of Uelese to which Mortimer J was referring in YNQY. Further, Direction no. 79 provides that particular crimes or those committed against particular victims will be regarded as 'serious',[15] or are to be 'viewed very seriously'.[16] In circumstances where the relevant non-citizen has committed a 'serious crime' the government's view on the expectation of the community has been expressed to be that they expect the non-citizen's visa to be cancelled. 3. It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government's view as to the expectations of the Australian community as expressed in paragraphs 6.3(2) and 13.3(1) of Direction no. 79. Those expectations remain a primary consideration to which appropriate weight must be given. As expressed by the Minister, they weigh against revocation with respect to 'serious crimes'. However, it remains for the Tribunal to determine whether "the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa" having particular regard to the direction and to determine, in all the circumstances, what constitutes appropriate weight to be given to this consideration. This will depend on the Tribunal's assessment of the totality of the relevant considerations including the primary and other considerations. 4. As noted above, Direction no. 79 provides that certain crimes are to be considered 'serious crimes'. Applying paragraph 13.1.1(1)(b) of Direction no. 79, the Applicant's violent crimes against a woman are to be viewed 'very seriously'. The Australian community expects that the Applicant's visa can and should be cancelled in such circumstances. In the Tribunal's view, the offences in the present case, which by operation of Direction no 79 are to be viewed as very serious, are such that the Australian community would expect that the Applicant not hold a visa. Accordingly, even adopting the very broad approach it is the Tribunal's view that the expectations of the Australian community would be against the revocation of the cancellation of the visa. 5. The Tribunal finds that the Applicant has committed crimes which are serious crimes and the Australian community would reasonably expect that he should not hold a visa. That is, the Australian community would expect the non-revocation of the cancellation of the Applicant's visa. Paragraph 6.3(3) of Direction no. 79 makes it clear that the Applicant, as a non-citizen who has committed a serious crime of a violent nature against a woman, should expect to be denied the privilege of remaining in Australia. While this principle is expressed in terms of the consequences an offending non-citizen should generally expect, in the Tribunal's view when read in the context of paragraph 6.3(2) and 13.3(1) the principle expressed in paragraph 6.3(3) directs the Tribunal to view these crimes in a particular way - crimes with respect to which there is generally an expectation that the offender will forfeit the right to remain in Australia. In any event, it follows from the direction in paragraph 13.1.1(1)(b) that violent crimes against women are to be viewed as serious regardless of the sentence imposed and as such should be considered in light of the expectation expressed in paragraph 6.3(2) of Direction no. 79. 6. Having regard to the relevant authorities and applying the direction in this way, the Tribunal finds that the expectations of the Australian community weigh against the revocation of the cancellation decision. 7. The Tribunal finds that the expectations of the Australian community would be that the decision to cancel the Applicant's visa should not be revoked. The Tribunal finds that this consideration weighs against the revocation of the cancellation of the Applicant's visa. 8. Although the expectations of the Australian community will weigh against an applicant with respect to serious crimes the Tribunal must, in the exercise of its discretion, decide how much weight is to be given to this consideration in the process of weighing up the primary and other considerations. 9. The weight to be applied to this consideration in view of all the circumstances of the Applicant's case is considered further below.

(1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

1. International non-refoulement obligations;
2. Strength, nature and duration of ties;

1. Impact on victims;
2. Extent of impediments if removed.

1. It is not relevant to consider international non-refoulement obligations (paragraph 14.1 of Direction no. 79) because no such claims arose in any submissions or on the evidence before the Tribunal.

1. Paragraph 14.2(1) of Direction no. 79 provides:

(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:

1. How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
   1. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
   2. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
2. 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, including the effect of non­revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

1. Relevantly, paragraph 6.3(5) of the principles section of Direction no. 79 states:

(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

1. Additionally, paragraph 6.3(7) of the Principles section of Direction no. 79 states, in part:

(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.

1. The Applicant is now 30 years of age, having arrived in Australia in January 2014 when he was 25 years of age. While the Applicant has lived in Australia a number of years he arrived as an adult. His first offence in Australia, was committed in June 2015 around 18 months after his arrival. The Respondent submitted in applying paragraph 14.2(1) of Direction no. 79 as his offending commenced shortly after he arrived in Australia less weight should be given to the strength, nature and duration of ties to Australia

(R2, page 12, para 45). The Tribunal accepts this submission as the Applicant was in Australia for a relatively small amount of time prior to offending and while he does not have a long list of offences the seriousness of the offences and the sentences he received for them means that he has spent a significant amount of his time in Australia in prison or under supervision orders in the community. However, while this may lessen the strength of his ties to the community or the weight to be applied to those ties, the Tribunal regards that his ties to the Australian community should not be disregarded simply on the basis of when he commenced offending. 2. Prior to his offending, the Tribunal finds that the Applicant has positively contributed to the community working as an operator, poly welder and boiler maker and living in the Australian community. His former employer testified that he has mentored Indigenous employees he works with (Transcript, page 62). He expressed a commitment to doing so again if he remains in Australia. 3. If he is returned, he may be separated from his partner for an extended period. Once she relocates her own family will have restricted physical contact with them. 4. The Tribunal finds that the Applicant's has ties to the Australian community. On balance the Tribunal finds that this other consideration weighs in favour of the revocation of the decision to cancel the Applicant's visa. However, the Tribunal also notes that the Applicant came to Australia as an adult. He and his fiancé commenced a relationship several years ago while he was on bail for the offences for which he was convicted and imprisoned. He does not have immediate family members in Australia but is undoubtedly close to his fiancé and her family and to friends he has relied on here and who have provided statements in his support. 5. There is no evidence before the Tribunal that suggests that the Applicant and his fiancé would be unable to resettle in New Zealand together as a family. In the Tribunal's view this lessens the weight to be afforded to this consideration.

1. It is also not relevant to consider whether a decision not to revoke the cancellation of the visa will have a relevant impact on Australian business interests (paragraph 14.3(1) of Direction no. 79). One of the Applicant's employers gave evidence that the Applicant was a valued employee and would be reemployed if the cancellation is revoked. While the Applicant worked in the mining industry there was no evidence that the Applicant was involved in the delivery of any major projects, or the delivery of an important service in Australia such as may give rise to his visa cancellation impacting on Australian business interests. Although he has worked in Australia his employment in Australia would not fall within this 'business interests' other consideration.
2. The Tribunal does not place weight on this consideration.

1. The Tribunal does not have sufficient information before it to assess the impact of a decision not to revoke the cancellation of the Applicant's visa on the victim of his offending or the family members of the victim (paragraph 14.4(1) of Direction no. 79).
2. The Applicant indicated he has no contact with the victim. The Respondent admitted that while there was no evidence from the victims regarding the impact of non-revocation of the visa, there was material before the Tribunal from which it could infer from what the victim has said in the past that they would not want the wouldn't want the visa cancellation revoked. (Transcript, page 72).
3. The Tribunal does not accept this submission and does not believe it is open to it on the evidence to make such an inference. In any event, paragraph 14.4(1) refers to the 'impact of a decision not to revoke' and members of the Australian community including victims of the non-citizen's criminal behaviour. While evidence of the impact of the Applicant's offending on his victim at the time of the offending or sentencing may be relevant to considering the seriousness of the offence and other considerations in the context of a decision regarding revocation, it does not assist the Tribunal in assessing the impact of a decision not to revoke the Applicant's visa on the victim, or on the Australian community more generally. Further the direction talks about the impact of non-revocation on the victim and not about the victim's opinion about whether the visa cancellation should be revoked.
4. There is no evidence as to how other the victim of the Applicant's offending would be impacted by a decision not to cancel the Applicant's visa. There is no evidence about the impact on members of the Australian community more generally. Aside from the risks of harm to the community of which are discussed above in the context of the protection of the Australian community, the Tribunal finds that there is likely to be little, if any, specific impact from a decision not to revoke the visa. Accordingly, the Tribunal places no weight on this factor.

1. Paragraph 14.5(1) of Direction no. 79 provides:

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

(a) The non-citizen's age and health;

(b) Whether there are substantial language or cultural barriers; and

(c) Any social, medical and/or economic support available to them in that country.

1. The Applicant arrived to reside in Australia in 2014 when he was 25 years old. The Tribunal accepts he is likely to face some social and emotional difficulties if he is returned to New Zealand. The Applicant submitted that he would face difficulties re-establishing himself in New Zealand as he has built his life here and no longer has ties in New Zealand (Transcript, page 43). He regards his friends and his fiancé's family to be his family and they all reside in Australia. He is estranged from his own family members who are in New Zealand and Singapore.
2. The Tribunal notes that the Applicant's 6 year old daughter resides in New Zealand and that the Applicant indicated he is desirous of having contact with her. The Tribunal finds on the evidence that this would likely be fasciliated by the Applicant being in New Zealand.
3. The Applicant also gave evidence, as was noted above, that his fiancé plans to move with him to New Zealand if he is removed, however she may not be able to join him immediately. She testified that she has some experience in New Zealand payroll work (for her Australian based company) and has been exploring employment options. She is concerned moving will impact on her career but is committed to the relationship and to the Applicant. The Tribunal finds on the evidence that the Applicant is close to, and emotionally reliant on, his friends and his fiancé and her family in Australia. The Tribunal finds that the lack of family and other social supports are likely to be impediments to the Applicant in adjusting to life in New Zealand, particularly if his fiancé's relocation is delayed while she finds work.
4. There is no medical evidence before the Tribunal that the Applicant suffers from any physical or mental health issues which might give rise to an impediment on his return to New Zealand. The Applicant did not accept that the health system in New Zealand was similar to Australia, however he offered no evidence to suggest how his access to services would be different or how this would be an impediment to him. He suggested that his own employment prospects and earning capacity were greater in Australia and the Tribunal accepts that they may be. However, the Applicant testified that he has worked in New Zealand in skilled trades and has also travelled to other countries to work as a security contractor following his service in the New Zealand navy.
5. The Applicant came to Australia as an adult and as such would not face any language or cultural barriers if he were to return to New Zealand. He has family members in New Zealand though the Tribunal accepts that he is estranged from them and they are unlikely to offer support to him on relocation.
6. The Applicant has skills and experience in the security and mining industries. He was working in New Zealand prior to moving to Australia (Transcript, page 42). The Tribunal finds his skills and work experience would likely assist him to find employment if he is returned to New Zealand. The third party statements include positive statements regarding his experience and work ethic, particularly the testimony of Mr Stewart, his former employer who flew to Perth for the hearing (Transcript, pages 58-62 ; R1, G30, page 103). The Tribunal finds that he is unlikely to face any particular barriers to finding employment in New Zealand.
7. The principal impediments identified by the Applicant were the separation from his support network, the need to re-establish himself in New Zealand, and the impact his relocation would have on his fiancé and her family which has been addressed above. The Tribunal accepts that these are challenges which would be faced by the Applicant and those close to him if he were removed to New Zealand. However, such challenges do not, in the Tribunal's view and taking into account the evidence available, amount to impediments to his return to New Zealand.
8. On balance, the Tribunal finds that the Applicant is likely to experience some challenges in re-establishing himself in New Zealand. The Tribunal accepts that he may face social and emotional difficulties because his support network is in Australia. If he is returned, he may be separated from his partner for an extended period. Once she relocates her own family will have restricted physical contact with them.
9. In summary, the Tribunal finds that Applicant would suffer some hardship if he were returned to the New Zealand, which weighs in favour of the revocation of the decision to cancel the visa. However, the Tribunal does not regard the challenges faced by the Applicant as significant impediments to his return and accordingly places limited weight on this consideration.

1. Direction no. 79 provides some guidance as to how a decision maker should apply the primary and other considerations and the weight to be given to them. Paragraphs 8(3), (4) and (5) are relevant here, and state:

(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

(4) Primary considerations should generally be given greater weight than the other considerations.

(5) One or more primary considerations may outweigh other primary considerations.

1. The treatment of primary and other considerations has been subject to judicial consideration.[17]
2. Senior Member Evans in CZCV and Minister for Home Affairs [2019] AATA 91 at [164] summarised the weighing exercise as considered by the Courts as follows:

The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word "secondary" tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so.[18]

1. The Tribunal agrees with this statement of the principles to be applied in the weighing exercise and has had regard to these principles in balancing the primary and other considerations in this decision, which are summarised in the conclusion below.

1. The Applicant does not pass the character test under s 501 of the Act.
2. The Tribunal has also considered whether there is another reason why the mandatory cancellation decision should be revoked, having regard to the primary and other considerations in Direction no. 79.
3. In determining the weight to be applied to each consideration, the Tribunal has regard to all the Applicant's circumstances, including his limited history of offending and his attempts at rehabilitation. The Tribunal has considered all the primary considerations, including the serious nature of the offences committed by the Applicant and the risk of harm to the community were he to reoffend. The Tribunal has had particular regard to the nature of the Applicant's violent offending against a woman with whom he was in a relationship. The Tribunal has also had regard to the Applicant's demonstration of remorse, commitment to rehabilitation and sobriety.
4. The Tribunal has had regard to the relevant other considerations, including the strength, nature and duration of the Applicant's ties to Australia and the challenges the Applicant would face if he was returned to New Zealand, which weigh in the Applicant's favour.
5. In relation to the primary considerations, the findings that the Tribunal has made regarding the protection of the Australian community and the expectations of the Australian community weigh in favour of the Tribunal refusing to revoke the cancellation of the visa (that is, affirming the Reviewable Decision).
6. The other considerations of the Applicant's strength, nature and duration of ties to Australia, and the extent of impediments if returned to New Zealand weigh in favour of the Applicant. However, having regard to all the circumstances of the Applicant's case, and in particular the short amount of time Applicant has spent in Australia prior to and since the offences were committed and the relatively limited nature of his ties to the community and the limited impediments to his removal to New Zealand where he grew up and commenced his life as an adult, the Tribunal places less weight on these considerations.
7. The Tribunal is of the opinion that the primary obligations of protection of the Australian community and the expectations of the Australian community outweigh the other considerations that are in favour of the revocation of the decision to cancel the visa.
8. In summary, having regard to all of the relevant primary considerations, and the relevant other considerations in Direction no. 79, the Tribunal is of the view that it would not be appropriate for the Tribunal to exercise the discretion to revoke the mandatory cancellation of the Applicant's visa. The correct and preferable decision is to affirm the Reviewable Decision.

1. The Reviewable Decision, being the decision of the Respondent's delegate dated

20 January 2019 not to revoke the mandatory cancellation of the Applicant's visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.

............................[sgd]..........................................

[1] Minister for Immigration and Border Protection, Direction no. 79 - Visa refusal and cancellation under

s 501 and revocation of a mandatory cancellation of a visa under s 501CA (20 December 2018)

[2] The applicant spent one day in Australia on 7 May 2009 and four months in Australia arriving 16 February 2012 (R2, Annexure A).

[3] The letters indicate that they were delivered by hand to the Applicant in Acacia Prison, however the 'Acknowledgement of Receipt Forms' on the copies before the Tribunal are not signed.

[4] Minister for Immigration and Border Protection, Direction No. 65 - Migration Act 1958 - Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (22 December 2014).

[5] Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212; (1981) 5 ALD 135 (Daniele); Minister for Ethnic Affairs v Gungor [1982] FCA 99; (1982) 4 ALD 575 (Gungor); Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 62 ALD 673 (Ali); Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234 (SRT); Degerli v Minister for Immigration and Ethnic Affairs [1981] FCA 250 (23 December 1981) (Degerli); Beckner v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 264; (1991) 30 FCR 49 (Beckner); Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155 (LLF).

[6] Noting in particular the principles espoused by the Court of Appeal of the Supreme Court of Victoria in Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155

[7] As per Branson J in Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313 (Ali) at [38].

[8] See also QGMJ and the Minister for Immigration and Border Protection [2017] AATA 1537 (QGMJ), QSBL and Minister for Home Affairs [2018] AATA 2074 at [59], ZTGP and Minister for Home Affairs [2018] AATA 3518 at [99].

[9] This case deal with a decision made under Direction No.65 (Minister for Immigration and Border Protection, Direction No. 65 - Migration Act 1958 - Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (22 December 2014)) however the relevant provisions of Direction no. 65 were materially the same as Direction no. 79.

[10] Again these cases were applying Direction no. 65.

[11] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 per Colvin J (Suleiman); HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013 per Banks-Smith J (HSKJ) and Minister for Home Affairs v HSKJ [2018] FCAFC 217 considering Direction no. 65.

[12] See Suleiman (n 5) and HSJK (n 5).

[13] See for example Deputy President Constance in Zyaran and Minister for Home Affairs [2018] AATA 3785 at [71] and [72] and in Nguyen and Minister for Home Affairs [2018] AATA 3726 at [84] and [85].

[14] See Member Eteuati in Doan and Minister for Home Affairs [2019] AATA 169 at [185]- [208].

[15] See for example Direction No.79 paragraph 13.1.1(1)(c).

[16] See for example Direction No.79 paragraph 13.1.1(1)(a) and (b).

[17] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; Suleiman was discussed by the Full Court of the Federal Court in Minister for Home Affairs v HSKJ [2018] FCAFC 217 (HSKJ).

[18] Although Senior Member Evans was considering Direction no.65 the relevant provisions were materially the same as those under Direction no. 79 and her comments remain applicable under the later direction.