The Applicant is a citizen of New Zealand and is now 65 years old, born in July 1960. He first arrived in Australia in 1990 aged 30 and later departed Australia on three occasions in 1990, 2012 and 2013.
Having been born in New Zealand, the Applicant initially did labouring and construction jobs after leaving school at 16. He was married to his first wife in 1978 and whilst still in New Zealand had three children. The family moved to Australia (Adelaide) in 1989 and the Applicant and his first wife had three more children in Australia and after some time moved to Geelong. The Applicant's marriage ended in 2010 and his first wife then moved interstate. Whilst it is not an offence, the Applicant has been a patched member of the Bandidos Outlaw Motorcycle Club since 1999, mostly with respect to the Geelong branch of that club.
The Applicant then began an intimate relationship with his second partner whom I shall refer to as 'the SP', who already had a daughter that I shall over the balance of these Reasons refer to as 'SP's daughter'. The Applicant and SP together had a son that I shall refer to as 'the young son', where this relationship between the Applicant and the SP lasted roughly 10 years.
The Applicant has a number of historical offences - one in New Zealand in 1977 and then some other historical offending when the Applicant was living in in South Australia, which resulted in various convictions and fines but no imprisonment.
The most recent and significant convictions as described in more detail below occurred in 2019, when the Applicant was convicted in the County Court for the following offences - aggravated burglary, intentionally causing injury and common law assault. The Applicant received a total effective sentence of seven years imprisonment, with a non-parole period of four years and 10 months.
On 6 October 2020 the Applicant's visa was mandatorily cancelled under s 501(3A) of the Act.
On 21 October 2020, the Applicant sought revocation of the cancellation.
The Applicant appealed his conviction and sentencing to the Supreme Court of Victoria. In its decision dated 16 February 2021, the Court allowed the Applicant leave to appeal but unanimously refused the appeal.
On 7 August 2025 a delegate of the Minister decided not to revoke the cancellation of the Applicant's visa under s 501CA(4) of the Act and the Applicant was notified of this on that same date. Therefore, the Applicant's visa remained cancelled.
On 13 August 2025 the Applicant applied for review of that decision to the Administrative Review Tribunal (the Tribunal). A telephone Directions hearing was held on 29 August 2025 before General Member T Eteuati, to manage the exchange of relevant documents and materials prior to the main hearing.
In the lead up to the Tribunal video-hearing scheduled for 20-21 October 2025, the Respondent provided to the Tribunal a Statement of Facts, Issues and Contentions (SOFIC), a chronology and supplementary materials. This included three Statutory Declarations of the Applicant dated 10 February 2021, 16 June 2021 and 6 April 2022, various written submissions made by the Applicant's then-lawyers WLW Migration Lawyers and various personal references provided by the Applicant's relevant family and friends.
Just prior to the hearing, the Respondent provided a hearing book (HB) which contained the abovementioned documents as well as the material before the department (the G-Documents) and any documents received via summons.
The Applicant attended a hearing of the Tribunal via video-link on 20 October 2025 and gave oral evidence, where the Applicant was being held in Port Phillip Prison. He was not represented at the hearing and no interpreter was required, as the Applicant speaks fluent English. The Applicant was able to utilise bound copies of the relevant materials provided by the Respondent. In the final result, the second scheduled hearing day was not required and was vacated.
With the running of the hearing, the Tribunal was mindful of the Applicant's medical report prepared by Dr John Gall and the psychological report prepared by Ms Carla Ferrari. These reports in summary confirm that the Applicant had three strokes about two years ago and is taking various medication and managing a number of health issues. Notably, the Applicant has been diagnosed with Type 2 Diabetes, sleep apnoea, poor vision in one eye and on-going heart issues.
In this context, in response to a query from the Respondent at the beginning of the hearing, the Applicant confirmed that (where he was wearing his prescription glasses) he was able to read the hard copy materials properly. As part of the Tribunal's opening comments, it was emphasised to the Applicant that there was plenty of hearing time available, so the parties could take their time during the hearing. The Tribunal clarified that it would be taking breaks and that the Applicant could always ask for a further break if this would be helpful. The Tribunal checked that the Applicant had followed its explanation of how the hearing would be run and the hearing then proceeded with no particular difficulties.
The Tribunal is satisfied that the Applicant was attentive at all stages during the hearing and was responsive to questions. The Applicant was able to actively and meaningfully participate and put forward his submissions during the hearing.
In this statement of reasons, the Tribunal has refrained from using the names of the victims of the Applicant's conduct and of his relatives and where applicable avoided using such names in any quotes from the sentencing remarks, out of respect for the privacy of those persons. Also, where the Tribunal has further below set out any quoted judicial text, for convenience, it has excluded any footnotes.
[2]
Section 501CA(4) of the Act states the Minister may revoke the original decision if:
[3]
(a) the person makes representations in accordance with the invitation; and
[4]
(i) that the person passes the character test (as defined by section 501); or
[5]
(ii) that there is another reason why the original decision should be revoked.
[6]
Section 501(6)(a) states that a person does not pass the character test if the person has a substantial criminal record.
Section 501(7)(c) states that, for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Under section 499(1) of the Act, the Minister may give written directions to a person or body having functions or power under the Act, and a person or body must comply with any direction given by the Minster (section 499(2A)).
The Minister has issued Direction 110, Visa Refusal and Cancellation under section 501 and Revocation of a Mandatory Cancellation of a Visa under section 501CA (the Direction) dated 7 June 2024.
The Direction sets out the considerations to be taken into account when considering a request to revoke a cancellation and states: a non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case. The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under sections 501 and 501CA of the Act.
Clause 5.2 of the Direction sets out the principles to provide a framework for decision making. These are:
[7]
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
[8]
Paragraph 8 of the Direction sets out the primary considerations to be taken into account:
8.1 protection of the Australian community from criminal or other serious conduct;
8.2 whether the conduct engaged in constituted family violence;
8.3 the strength, nature and duration of ties to Australia;
8.4 the best interests of minor children in Australia;
8.5 expectations of the Australian community.
Paragraph 9 of the Direction sets out other considerations to be taken into account including:
9.1 Legal consequences of the decision;
9.2 Extent of impediments if removed;
9.3 Impact on Australian business interests.
[9]
The issues to be determined in this application are:
Does the Applicant pass the character test as set out in section 501(6), and if not,
Whether there is another reason why the original decision should be revoked under section 501CA(4), having regard to the Minister's Direction No. 110.
[10]
It is undisputed that the Applicant does not pass the character test.
On the evidence before it, including the National Criminal History Checks, the New Zealand Police Criminal History Report and the sentencing remarks of Her Honour Judge M. Sexton of the County Court of Victoria dated 20 December 2019, the Tribunal finds that that the Applicant was convicted of a charge of aggravated burglary, two charges of intentionally causing injury and a charge of common assault. The Applicant was sentenced to a total effective sentence of seven years for these convictions, with a non-parole period of four years and 10 months[1].
The Tribunal finds the Applicant has a substantial criminal record and does not pass the character test set out in section 501(6)(a) of the Act.
[11]
Whether there is another reason why the original decision should be revoked under section 501CA(4), having regard to the Minister's Direction No. 110.
[12]
The Tribunal has assessed each consideration set out in the Direction in turn, keeping in mind the principles in clause 5.2 of the Direction.
[13]
8.1 The protection of the Australian community from criminal or other serious conduct
[14]
This consideration requires the Tribunal to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and 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.
The Tribunal must have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of the Direction requires decision-makers to:
[15]
a) Consider the nature and seriousness of the non-citizen's conduct to date; and
>
> b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
[16]
This primary consideration involves taking into account the nature and seriousness of the Applicant's past offending. Paragraph 8.1.1(1) states that when considering the nature and seriousness of the Applicant's criminal offending and other conduct to date, the Tribunal must have regard to a number of factors, which are addressed below. Set out and discussed below is initially the Applicant's prior offending in New Zealand and South Australia, then the incident and convictions arising from the incident 29 October 2016 in Victoria.
[17]
The New Zealand Police Criminal History Report dated 11 June 2021[2] confirms that in relation to an 'offence date' of 8 June 1977, the 'offence description' is 'Other Endangering/Interfering" and the 'result' is 'Admonished and Discharged'.
The National Criminal History Checks documents dated 5 May 2020 and 26 June 2025 confirm that the Applicant was found in South Australia to have committed the offences as set out below:
Common assault on a person other than a family member
[20]
It is in the Applicant's favour that the majority of these offences are driving-related offences and that none of them involved a custodial sentence i.e. usually the outcome was a conviction recorded and a fine. Also, there was almost a 20-year gap between the Applicant's first offence in 1977 and the group of offences that begin with the Applicant's conviction in 1995 for driving offences, plus there is an eight-year interval until the events of 29 October 2016 occurred.
On the other hand, two of the South Australian offences are more significant and are the most recent ones from this period - the 1998 offences of 'common assault on a person other than a family member' and 'producing a controlled substance'.
In summary, the Applicant by the time he moved to Geelong already had a considerable history of criminal offending, but where it seems fair to say that in most respects this offending was relatively minor.
[21]
Offences arising from 29 October 2016 incident in Victoria
[22]
Turning to the 29 October 2016 offences committed by the Applicant and with reference to the sentencing remarks of Justice Sexton dated 20 December 2019 and the aforementioned National Criminal History Checks, the Applicant was convicted and sentenced by Her Honour for the following offences involved in this incident:
[23]
27 months of imprisonment - 24 months of sentence concurrent
[24]
24 months of imprisonment - 21 months of sentence concurrent
[25]
12 months imprisonment, 6 months of sentence concurrent
[26]
In Justice Sexton's sentencing remarks dated 20 December 2019, Her Honour sets out the nature and circumstances of the Applicant's offending on the night of 29 October 2016.
By way of context, at the time of the incident, the Applicant and the SP were a family unit but living in separate houses for some of the week and having time apart the rest of the week. They had separated but reconciled on a number of occasions. On 29 October 2016 they had attended a memorial service which involved attending several locations where alcohol was available, but where the Applicant's oldest daughter from his first marriage was the 'designated driver'. It was disputed at the trial as to how much both the Applicant and the SP were drinking over that evening. When the Applicant and the SP by the early hours got to the clubhouse which was the final destination involved, they had an altercation. The SP then walked to a service station and caught a taxi back to her own dwelling where her daughter and the young son were sleeping, with a babysitter also there. The Applicant then sometime between 2 am and 4.25 am drove to the SP's home with his oldest daughter[3], with the aim of taking away the young son. The male babysitter was able to escape from the house without any harm to him.
What then happened is summarised in paragraph 11 of the SOFIC as follows, but where I have redacted the quote set out below as necessary, to protect the privacy of the victims:
[27]
(a) "On 31 October 2016, the Applicant's offending occurred against his former partner, Ms ### ### and her 13-year-old daughter, ### ### (both victims and the Applicant's son are referred to by pseudonyms in the sentencing remarks). The Applicant attended the home of Ms ### wanting to pick up their 3-year-old son, ### ###. An argument ensued whereby the Applicant eventually forced entry into the home by barging through the locked security door and carried out an assault by striking Ms ### to the head a number of times using a piece of wooden chair the Applicant had pick (sic) up in the front yard. This assault was not the subject of a charge, but it was found to be relevant to the conviction of aggravated burglary as it showed the Applicant acted immediately on the intent to assault Ms ### (G6/72);
[28]
(b) The Applicant removed [the young son] from [SP's daughter's] arms in her room. [The young son] had awoken from the noise of the Applicant's forced entry into the home and he went to his sister's room because he was scared. The Applicant handed [the young son] to his eldest daughter who had accompanied him into [the SP's] house. [The SP], who had attempted to stop this from happening, was held up against the architrave of the bedroom door by the Applicant, who began punching [the SP's] face several times before she fell to the floor (G6/73). This conduct was the subject of the conviction intentionally causing injury;
[29]
(c) The judge found the Applicant 'rag-dolled' [the SP] before leaving the house. This conduct was not the subject of a charge but her Honour fond that this conduct demonstrated that the assaults that caused injuries that were the subject of the charges were not isolated acts (G6/73).
[30]
(d) [The SP] followed the Applicant out of the house in a further attempt to get [the young son] back. The Applicant continued to rag-doll [the SP] around the front yard as well as hitting her with his fists and hitting her with another piece of wood. [The SP's daughter] followed the Applicant and [the SP] outside, and she witnessed the Applicant holding [the SP] by the throat pinning her to the bonnet of the car. The Applicant was witnessed hitting [the SP] head with a piece of wood in particular around the eye area (G6/74). This conduct was the subject of intentionally causing injury;
[31]
(e) [The SP] either rolled off the car or wash pushed to the ground by the Applicant, where she lay, passing in and out of consciousness. The Applicant attempted to approach [the SP] once more, but [the SP's daughter] got between the Applicant and her mother. In response the Applicant picked up another piece of wood and chased [the SP's daughter] to the kerb, threatening her with the piece of wood (G6/74). This conduct was the subject of common assault by threatening [the SP's daughter] with the piece of wood;
[32]
(f) The Applicant's eldest daughter had by then strapped [young son] into a car seat and urged the Applicant to leave. [The SP] was still on the ground and the Applicant said words to the effect of 'Run the bitch (or moll) over'. [The SP] roused enough to see the car moving slightly and [the SP's daughter], got between her mother and the car. The Applicant's eldest daughter then drove the Applicant and [the young son] away from the scene."
[33]
In terms of the injuries suffered by the SP, Her Honour made the findings set out below:
[34]
(27) "Over the course of her time in hospital, [the SP] was observed to have a 3 centimetre cut above her left eye which was sutured, a large bruise around that eye, a superficial cut on her left cheek and small abrasion across her nose; a front tooth was gone and she had multiple bruises on her upper and lower limbs. A 1.5 centimetre splinter was removed from her eyebrow. Scans showed no fractures or internal injuries. In her evidence she referred to more teeth falling out later as a result of the assaults and now has four teeth missing. There was, however, no up-to-date medical evidence provided to me.
(28) It is impossible to disentangle her injuries to say which are referable to which injury charge. However, I sentence you on the basis that the jury found that you had caused injuries to her, first, when punching her to the face while holding her against the architrave inside the house (charge 3); and, second, when hitting her head with a piece of wood, whether the chair leg as described by [SP's daughter], or the piece of wood as described by [the SP], on the bonnet of the car (charge 5)."
[35]
In terms of the gravity of the offending, Justice Sexton made the following comments:
[36]
(31) "Even without [the SP] taking the opportunity to tell me in her words how your [the Applicant's] actions have affected her, the events as I have described them above have already informed me of what a terrifying experience this was for her and for the two children, and it is no surprise that it is having an ongoing impact three years later. I do hope that with this sentence closing this chapter that [the SP] will be able to begin to feel less fearful and begin to reclaim her life. I do wish [the SP], [the SP's daughter] and [the young son] well for the future.
(32) Aggravated burglary is a very serious offence, as is shown by the maximum sentence of 25 years, which is the highest in the criminal calendar after life imprisonment. Any offence involving injury to another person is serious and a common assault can also be serious, depending on the circumstances of its commission; threatening a child with a weapon is a serious example of a common assault."
[37]
Justice Sexton referred to a number of factors that made the offences "...serious example of each type of offence[4]", being:
The offences were committed in the context of an intimate relationship, even if the Applicant and the SP were sometimes living separately.
[38]
The Applicant broke the security door of the SP's house with the intent of assaulting SP with a weapon, which he did so immediately.
[39]
The assault occurred in the early hours when the SP was entitled to feel safe in her own house.
[40]
The Applicant at the time that he barged into the house knew that both children were home and that the SP was at or near the front door.
[41]
The Applicant was much larger than the SP - he at that time weighed about 200 kg, whereas SP weighed about 50 kg.
[42]
Where the Applicant chased the SP's daughter with the piece of wood and threatened her, he did this as her step-father.
[43]
"I find that the objective gravity of all the offending is very serious and that your moral culpability is high. It was a cowardly sustained attack on your powerless and diminutive partner of 10 years undertaken in the view of your stepdaughter and son, and included threatening behaviour towards your stepdaughter".
[44]
At pages 11-16 Her Honour discusses various potential mitigating factors in relation to the Applicant's prior good character, his existing medical complications, his being on a disability pension and the various positive personal references provided in the Applicant's favour. The Applicant's prospects of rehabilitation were seen as 'good'. However, it is self-evident that for some reason Justice Sexton did not have before her the Applicant's prior history of criminal offending as I have set out further above, as she makes no reference to same and at her paragraph 43 refers to the Applicant has having no prior criminal convictions.
With respect to the various positive personal references put forward for the Applicant, Justice Sexton made the following comments at her paragraph 45:
[45]
"I do, however, want to say something to those who stated in the references what a great family man you are. True it is to say that you are very close with the adult children of your first marriage, and your grandchildren, and family is very important to you. What seems to have been forgotten by some writing those references is that [the SP], [the SP's daughter] and [the young son] were your family too and equally entitled to your love, respect and protection, especially in their own home. In the early hours of 30 October 2016 they did not get that. Also, as I have said to your counsel on the plea, I ignore any statements in the references that challenge the outcome of the trial."
[46]
The Tribunal will now turn to the various nominated Clause 8.1.1 considerations.
[47]
S 8.1.1(1)(a) & (b): Is the criminal offending by the Applicant considered 'very serious' or 'serious'?
[48]
In considering the nature and seriousness of the relevant criminal offending or other conduct to date, the Direction at s 8.1.1(1)(a) and (b) provide non-exhaustive examples of crime or conduct that is '"...viewed very seriously by the Australian Government and the Australian community" or alternatively is "...considered by the Australian Government and the Australian community to be serious". Pursuant to s 8.1.1(1)(a)(ii) one of the non-exhaustive examples of offending viewed 'very seriously' is "...crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed".
Taking into account the nature of the offending as the Tribunal has summarised further above (taken from the Sentencing remarks of Justice Sexton), for the purposes of s 8.1.1(1)(a) & (b), the Tribunal is satisfied that the Applicant's 29 October 2016 offending constitutes 'very serious' offending pursuant to s 8.1.1(1)(a)(ii).
[49]
This provision is not applicable, given the Tribunal's finding set out in the paragraph above i.e. the circumstances here come within the exception provided for in this provision.
[50]
The Tribunal understands that no 'Victim impact statements' were tendered at the trail before Justice Sexton. However, on all the evidence before it, the Tribunal accepts that the adverse consequences of the Applicant's offending on the victims was profound and traumatic, particularly on the SP and her daughter. It will remain to be seen the extent of the adverse impacts on the young son, who was three at the time of the relevant offending but was home and then taken from the house as described further above.
Justice Sexton commented as follows at paragraph 31 of her sentencing remarks:
[51]
"Even without [the SP] taking the opportunity to tell me in her words how your [the Applicant's] actions have affected her, the events as I have described them above have already informed me of what a terrifying experience this was for her and for the two children, and it is no surprise that it is having an ongoing impact three years later. I do hope that with this sentence closing this chapter that the [SP] will be able to begin to feel less fearful and begin to reclaim her life. I do wish [the SP], [the SP's daughter] and [the young son] well for the future."
[52]
The Tribunal notes that the Applicant confirmed that there was an Intervention Order put in place after the relevant offending, stopping any contact between the Applicant and the three persons just listed, although by the time of the 20 October 2025 hearing, the Applicant was unsure whether this Order was still in effect.
[53]
S 8.1.1(1)(e) & (f): Frequency of offending and/or whether there is any trend of increasing seriousness/cumulative effect of repeat offending
[54]
Assessing the Applicant's criminal record going right back to his initial offence in 1977 in New Zealand and then his numerous offences whilst living in Adelaide, the Tribunal finds that the Applicant has a long criminal history. In terms of the Applicant's offending after he came to Australia (which is all but the very first of his offences), the Tribunal accepts that there is a likely cumulative effect of his repeat offending in the Australian community.
With respect to those offences carried out by the Applicant whilst he lived in Adelaide, the Tribunal accepts that there is a 'trending of increasing seriousness' i.e. the less serious traffic offences occurred earlier in time and the two more serious offences were the most recent ones which occurred in 1998.
It is also the case that the Applicant's most serious offending is that which most recently occurred on 29 October 2016. In other words, the Applicant's 29 October 2016 offending was an escalation of the 'increased seriousness of offending' that had already occurred during 1998, which indicates a trend of increasing seriousness of offending.
[55]
S 8.1.1(1)(g): Providing false and misleading information
[56]
The Applicant has admitted providing 'false or misleading information' in relation to an 'Incoming passenger card', when the Applicant was returning from one of his overseas trips. However, the applicant says that this was inadvertent.
[57]
The Tribunal is not aware of the Applicant having received any formal 'warning' for the purposes of this provision.
[58]
S 8.1.1(a)(i): Offences or conduct committed in another country
[59]
The Applicant did carry out one offence in New Zealand in 1977 as explained further above i.e. the relevant New Zealand Criminal History Report dated 11 June 2021 shows the 'offence description' as being "Other Endangering/Interfering' and the 'result' is shown as 'Admonished and Discharged'. Bearing in mind that it is not clear whether the New Zealand offence as at 1977 of 'Other Endangering/Interfering' has any equivalent offence in Australia as at 2025, I give this 1977 offence no weight for the purposes of my findings.
[60]
Conclusion 8.1.1 Nature and seriousness of the conduct
[61]
Overall, on the evidence before it and having regards to Justice Sexton's Sentencing remarks and the Tribunal's findings with all of the relevant factors set out in cl. 8.1.1(1) as discussed above, the Tribunal finds that:
the Applicant's prior criminal history in Adelaide involves relatively minor offences and is historical; but
the nature and seriousness of the Applicant's 29 October 2016 offending is 'very serious'.
In making this finding, the Tribunal in particular relies upon:
The Applicant's offending in the 29 October 2016 incident meeting the criteria for crimes or conduct viewed 'very seriously' by the Australian Government and community, pursuant to s 8.1.1(1) (a)(ii).
It being a sustained physical attack against the Applicant's intimate partner in her own home, which Justice Sexton at paragraph 31 described as a 'terrifying experience' for the SP and the two children.
The SP being hospitalised after the offending for three days.
Her Honour's statement at paragraph 40 that it was a "...cowardly sustained attack on your powerless and diminutive partner of 10 years undertaken in the view of your stepdaughter and son, and included threatening behaviour towards your stepdaughter" and also that the Applicant's "...moral culpability is high".
Her Honour at her paragraph 33 referring to a number of factors that made the offences "...serious example of each type of offence".
[62]
8.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
[63]
Paragraph 8.1.2 of the Direction requires decision makers to bear in mind the Australian Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. In addition, some conduct and the harm that would be caused (if repeated) is so serious that any risk that it may be repeated is unacceptable. In the circumstances here and in reaching its decision, the Tribunal has taken these considerations in Paragraph 8.1.2 into account.
In assessing the risk that may be posed to the Australian community, the Directions sets out the following factors which decision makers must have regard to, cumulatively, as per s 8.1.2:
[64]
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
>
> b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
>
> 1. information and evidence on the risk of the non-citizen reoffending; and
> 2. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitation courses to be undertaken)....
[65]
In essence then, on a cumulative basis, the Tribunal must have regard to the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal conduct, and the likelihood of him doing so. With this particular provision, there is no statutory constraint on the way that risk is assessed by the decision-maker, other than that there must be a rational and probative basis for the assessment[5].
[66]
Nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
[67]
For the reasons set out further above, the Tribunal has found that the 29 October 2016 offences set out above are very serious, with traumatic and profound adverse impacts on the victims involved. Accordingly, the Tribunal is satisfied that the nature of the potential harm to the Australian community if the Applicant commits further offences or engages in other serious conduct would similarly be very serious.
If this eventuated, any such further conduct could involve very damaging physical and/or psychological harm to members of the Australian community, including potentially vulnerable members such as children as has occurred in the past. This 'risk of further harm' also has the element of the potential impost on the community of the costs of dealing with the Applicant's potential future adverse behaviour.
[68]
Risk of the Applicant re-offending and evidence of rehabilitation
[69]
The Tribunal has considered the likelihood of any further offending by the Applicant and evidence of any rehabilitation by him. In doing this, it has taken into account any risk assessments undertaken, the Applicant's mental health and other health issues, any substance abuse history or evidence of rehabilitation. The Tribunal has also considered the parties' contentions and the materials about this, as discussed further below.
Of particular relevance here is the aforementioned sentencing remarks of Justice Sexton and the 2021 psychological report of the forensic psychologist Ms Ferrari, although keeping in mind that neither of them were aware of the Applicant's previous offending as outlined further above.
Justice Sexton at paragraph 44 accepted that the Applicant was of 'good character' apart from his offending, and noted the considerable personal references provided by family or friends of the Applicant. At her paragraphs 50-56 Her Honour discusses the Applicant's physical ailments and accepts that the Applicant has "...serious medical conditions and your limitations" and the "...potential for a reduced life expectancy".
At paragraph 59 Justice Sexton states:
[70]
"Turning to an assessment of your prospects for rehabilitation, because of your lack of criminal history and your previous good character, I find that the chances of your rehabilitation are good despite the serious nature of the offending. I must also consider the question of protection of members of the community from you and bear in mind the likelihood of reoffending in the same way, which I find to be low noting that you have no further contact with [the SP]. Your ill health may also play a role in making it less likely that you will reoffend, although I note that at the time of the offending in 2016 you suffered from a number of the conditions Dr Gall referred to and committed the offences despite that."
[71]
However, at paragraph 42 after acknowledging that the Applicant is entitled to plead not guilty, Her Honour states:
[72]
"...it follows that you receive no mitigation that accrues to a person that has pleaded guilty and, even more so, has also shown remorse. Here there is no remorse and no concern expressed for the impact on [SP and the two children], just a lack of insight as to the effect of your conduct on the children".
[73]
Turning to the report of Ms Ferrari, she notes at paragraph 57 that the Applicant remains adamant that he is not guilty of the 29 October 2016 offences. However, this needs to be assessed in the context of the Applicant at the time of meeting with Ms Ferrari having lodged a Supreme Court appeal against his conviction for those offences, where that appeal was later rejected.
Ms Ferrari refers at her paragraphs 37-38 to the Applicant:
Denying he had any past history of mental health issues such as anxiety or depression.
Stating that he has never previously seen a psychologist or psychiatrist.
At her paragraphs 47-53 Ms Ferrari records that the Applicant described himself as a 'social drinker' and someone who had used 'recreational drugs' in the past, but not methamphetamine or heroin. It is also noted that the Applicant stated that he had never attended detox or rehabilitation, albeit he was enrolled in an Alcohol and Other Drugs (AOD) program in custody at the time of his consultation with Ms Ferrari.
In discussing the 'Current circumstances and Psychological Impact' at her paragraphs 59 to 75, Ms Ferrari acknowledges that the Applicant described his current circumstances as 'extremely difficult' and causing him some extent of mental health issues where (believing he is innocent) the Applicant is incarcerated and unable to be with his family.
Paragraph 65 reads:
[74]
"[VXNS] reported that if he is able to remain in Australia, he has family support from his children and grandchildren. He also has a supportive friend of over 20 years in Trevor, who he acknowledged having known through his affiliation with the motorcycle club but have developed a close brotherly relationship".
[75]
Ms Ferrari at paragraph 103 states that the subject of the Applicant's offending was not 'canvassed in detail' due to the Applicant appealing his criminal convictions, but expresses the view that "...there does not appear to be evidence of a criminal belief system".
Under the heading 'Risk assessment', Ms Ferrari at paragraphs 109 - 118 discusses the results of the 'Spousal Assault Risk Assessment' carried out with the Applicant. She finds the Applicant to be within the low-moderate risk range for further re-offending. However:
Ms Ferrari at paragraph 117 notes that the Applicant has no prior criminal history before the 29 October 2016 incident - whereas it has since been established that the Applicant does have the (albeit relatively minor and historical) criminal history discussed further above.
She at paragraph 115 recommends the Applicant engage in further treatment for his specific risk factors i.e. individual psychological treatment.
In terms of the Applicant's oral evidence at the hearing and his response to questions:
[76]
(a) The Applicant continued to maintain that he did not commit the 29 October 2016 offences for which he was convicted, notwithstanding that his Supreme Court appeal was rejected - hence he expressed no remorse in relation to same.
(b) The Applicant referred to having to manage various on-going physical health issues (e.g. his heart, Type 2 diabetes, sleep apnoea, his eyesight) but was relatively positive about his mental health.
(c) It is very unclear from the Applicant's vague oral evidence whether he has in fact attended and/or completed any behavioural, rehabilitation or domestic violence courses whilst he has been incarcerated.
[77]
In its closing remarks, the Respondent made the following submissions regarding the Applicant's risk of re-offending and any rehabilitation done:
In continuing to maintain that he did not commit the offences for which he was convicted, the Applicant has shown no insight or self-awareness of the adverse consequences and implications of his offending for the victims involved. Hence the Respondent contends that the Applicant still has outstanding rehabilitation needs in this regard.
[78]
(a) It was acknowledged that Judge Sexton had assessed the Applicant's prospects of rehabilitation as being 'good'.
(b) The report of Ms Ferrari should be given less weight for the following reasons - the Applicant was not questioned in any detail about his offending and the report is now almost four years old. It was also noted that Ms Ferrari had recommended that the Applicant do individual psychological counselling.
(d) There is no evidence before the Tribunal that the Applicant whilst in prison has completed any behavioural courses, despite the Applicant telling Ms Ferrari in 2021 that he was about to do such a course.
[79]
The Respondent therefore argues that the Applicant continues to pose a risk to the Australian community and that the Tribunal cannot be satisfied that the Applicant will not resume his offending in a similar manner in Australia, if his visa is restored.
Turning to the Tribunal's findings regarding 'risk of re-offending and any rehabilitation done', I find on the available evidence that the Applicant has not completed any courses in prison relating to 'domestic violence' or other like behavioural courses.
For the following reasons and on the available evidence, I find that there is a moderate risk of the Applicant re-offending if his visa was restored and he was to return to the Australian community:
The Applicant's continuing profound lack of insight and awareness of the adverse impacts and consequences of his offending for his victims.
[80]
(e) I accept the criticisms of the Respondent that the report by Ms Ferrari is now outdated, where it is almost four years old and where the Applicant was not questioned in any detail about his offending because of a Supreme Court appeal that has since been rejected.
[81]
The failure of the Applicant to complete any behavioural courses.
Where I find that the weight carried by these adverse findings in the three bullet points above outweigh the finding of Justice Sexton that the Applicant's prospects of rehabilitation were 'good'.
[82]
Conclusion 8.1.2: The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
[83]
In summary, where the Tribunal must assess the risk to the Australian community should the Applicant commit further offences or engage in serious conduct, the Tribunal finds on the evidence before it that this risk is moderate, with particular reference to:
[84]
(a) Where the Applicant has been convicted for very serious 29 October 2016 offences, this creates the real risk that any future offending by the Applicant will similarly be of a very serious nature.
(b) The Applicant's lack of remorse and insight/awareness of the consequences and implications of his offending for his victims.
(c) The Applicant's failure to complete any rehabilitation courses whilst in prison and the significant limitations of the report by Ms Ferrari.
[85]
Conclusion: 8.1 The protection of the Australian community from criminal or other serious conduct
[86]
Having considered the nature and seriousness of the Applicant's 29 October 2016 offending conduct as 'very serious', and where I have found that the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct is 'moderate', the Tribunal has concluded that the protection of the Australian community consideration weighs heavily in favour of affirming the decision under review.
[87]
8.2 Family violence committed by the Applicant
[88]
Paragraph 8.2(1) provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this respect are proportionate to the seriousness of the family violence engaged in by the non-citizen.
As noted above, pursuant to the Sentencing remarks of Justice Sexton, the Applicant was convicted of:
[89]
(a) One charge of aggravated burglary, where the Applicant was found to have barged into the dwelling of his intimate partner, at a time that his stepdaughter and son were in the house.
[90]
(b) Two charges of intentionally causing injury, where both charges relate to the Applicant intentionally causing injury to the SP initially inside the family house and then later when SP was lying on the bonnet of the relevant car.
[91]
(c) One charge of common assault with respect to the Applicant picking up a piece of wood and then chasing/threatening SP's daughter with the wood.
[92]
Family violence is defined by the Direction as violent, threatening or other behaviour by a person that coerces or controls a member of the person's family. Assault is given as an example of behaviour that may constitute family violence. A member of the person's family includes a person who has, or has had, an intimate personal relationship with the relevant person.
On the evidence before the Tribunal including the sentencing remarks of Her Honour Judge Sexton, the Tribunal finds that:
[93]
(a) The victims of the Applicant's 29 October 2016 offending conduct were members of the Applicant's family.
(b) The 29 October 2016 actions of the Applicant constituted family violence.
[94]
In assessing the seriousness of the family violence engaged in by the Applicant, the Tribunal must take into account various factors where relevant, including the frequency of the conduct and whether there is any trend of increasing seriousness, the cumulative effect of repeated acts of family violence, rehabilitation achieved at the time of decision including the extent to which the person accepts responsibility for their family violence related conduct, the extent to which the person understands the impact of their behaviour, and the efforts to address factors which contributed to their conduct.
In response to these factors and with reference to the Tribunal's findings further above to the extent relevant, the Tribunal finds that:
[95]
(a) The Applicant has a relatively long criminal history, but where prior to the 29 October 2016 incident, the Applicant's previous offences were relatively minor and historical.
(b) Taking into account this relatively long criminal history, the Tribunal is satisfied that there has been a trend of increasing seriousness of the Applicant's offending.
(c) The Tribunal has already found further above that there is a likely cumulative effect of the Applicant's offending in the Australian community.
(d) The Tribunal has further above concluded that there is no evidence before the Tribunal that the Applicant has completed any behaviour modification courses whilst he has been in prison.
[96]
The Tribunal has already made findings that the Applicant has shown no remorse for his 29 October 2016 offending or shown any insight or awareness of the traumatic and profound impacts and consequences of his offending on his victims.
[97]
(e) There is no evidence before the Tribunal that the Applicant has had the self-awareness to review propensity or 'triggers' for potential violent behaviour and how to manage same so as to minimise the risk of further violent behaviour. Likewise, there is no evidence that the Applicant has completed any behavioural course to this effect.
[98]
Taking the above factors into consideration - notably the trend of the increasing seriousness of the Applicant's offending, his lack of remorse or insight in relation to his offending and the lack of evidence that the Applicant has completed any behaviour modification courses - the Tribunal finds that the family violence engaged in by the Applicant is very serious and at the higher range of seriousness for such conduct.
On balance, the Tribunal considers the family violence committed by the Applicant weighs heavily in favour of affirming the decision under review.
[99]
8.3 The strength, nature and duration of ties to Australia
[100]
During the hearing, the Tribunal heard evidence from both the Respondent and the Applicant about the strength, nature and duration of the Applicant's ties to Australia. The Tribunal has also had particular reference to the information in the Applicant's three own Statutory Declarations, to the several letters provided by his lawyers WLW Migration Lawyers during the period 2021-2024, and to the 14 or so personal letters of support or character references provided by relevant family members or friends.
On the evidence before it, the Tribunal accepts that the Applicant has been living in Australia since September 1990. When he came to Australia, the Applicant already had three children with his first wife and he went on to have three more children in Australia during the period the Applicant was still married and living with his first wife. The Tribunal has given weight to the amount of time that the Applicant has been resident in Australia (since 1990) and to his work and personal contribution to the Australian community during his adult life in Australia over the period up to when he was incarcerated.
The Tribunal has had regard to the WLW Migration Lawyers letter dated 11 March 2021 which sets out:
[101]
(a) At the top of page 3 the details of the Applicant's seven children who live in Australia as citizens or residents.
[102]
(b) Halfway down page 3 the details of his as-then 10 grand grandchildren, but where at the hearing the Applicant's oral evidence was that since 11 March 2021, four more children have been born i.e. the Applicant now has 14 grandchildren in Australia.
[103]
The Tribunal accepts that the Applicant has seven children and fourteen grandchildren living in Australia, who are all entitled in some form to permanently stay in Australia.
At the hearing, the Applicant confirmed that he has two brothers that live in Adelaide and Murray Bridge in Australia, but also a brother and a sister who live in or near Auckland in New Zealand (where the Applicant says that he has had little contact with his New Zealand siblings in recent years). The Applicant indicated that he had had a historical altercation with one of his siblings in New Zealand but has a stable relationship with the other. The Applicant's parents have both passed on.
In terms of the Applicant's work history, from his oral evidence provided at the hearing, he was already working as a linesman in New Zealand when he came to Australia - the Applicant chose to initially settle in Adelaide because of the good job prospects there. In Adelaide, after being a linesman, the Applicant did other work - notably working on road crews around Australia for the company Boral and also security work. After the Applicant moved to Geelong, he worked in car yards.
In terms of his social connections, the Applicant at the hearing stated that in Australia he had had always been very involved where his sons had played club rugby. He also confirmed that he had been a member of the Bandidos Motorcycle Club since 1999 and is a 'Life Member' of that club. During the hearing the Tribunal asked if the Applicant had been involved in any other community groups or charities and the Applicant replied 'No'.
The Tribunal accepts that the Applicant has developed various friends in Australia through his involvement in junior rugby and his motorcycle club and the report of Ms Ferrari refers to the Applicant having a close friend through that club.
The Tribunal has given weight to the aforementioned numerous personal letters or 'character statements' provided in support of the Applicant. The Tribunal is conscious of the many very positive comments made about the Applicant's emphasis on 'family life' and him being a friendly, positive, supportive and encouraging influence on others in his community. I accept that these letters and statements indicate that the Applicant is highly regarded in his community.
However, in reading these letters or statements in support, it is largely unclear whether their authors were made aware of the specific charges brought against the Applicant. This is in the situation where the Applicant went on to be convicted of the relevant charges as explained above and where the Applicant's subsequent appeal to the Supreme Court was rejected. Where one of the letters in support does suggest that the author was at least vaguely aware of the nature of the charges against the Applicant, the author states in the letter that the judicial system "...doesn't always get rulings and findings 100% clear and correct". This suggests that this author (like the Applicant) does not accept the verdict of Justice Sexton and of the Supreme Court.
I also refer to the comment by Justice Sexton at paragraph 45 of the sentencing remarks that where it was said in support of the Applicant that he is a 'great family man':
[104]
"What seems to have been forgotten by some writing those references is that [the victims of his offending] were your family too and equally entitled to your love, respect and protection, especially in their own home. In the early hours of 30 October 2016, they did not get that. Also, as I said to your counsel at the trial, I ignore any statements in the references that challenge the outcome of the trial".
[105]
The Tribunal acknowledges that the Applicant has been on a disability pension in Australia since he has been about 50. Whilst on that pension, I accept the Applicant's evidence that he has developed significant health issues and that two of his daughters (prior to his incarceration) provided daily support for the Applicant's living arrangements.
With respect to his children and grandchildren who are in Australia, I have given weight to the Applicant's evidence that he greatly values his relationship with them. All of the Applicant's children are now adults apart from his young son who is now 12, from his relationship with his SP. I shall discuss in more detail the situation with the young son in the next section of these Reasons.
The Applicant's oral evidence was that prior to him going into prison, he would play a significant role in the life and upbringing of his grandchildren, which was taken away from him and them. He opined that his grandchildren would miss him if and the support he can provide if the Applicant could not stay in Australia. I note however that all of his grandchildren already have at least one parent available to raise them.
The Tribunal has taken into consideration the Applicant's evidence that with his health issues and as most of his family live in Australia, he would find it difficult to live in New Zealand without the support of and contact with his family in Australia.
Turning to the Tribunal's findings, the Tribunal accepts affirming the decision under review would further disrupt the Applicant's relationship with his grandchildren, children and friends in Australia. The Tribunal acknowledges that this would cause some extent of distress and emotional hardship for many of the Applicant's family and friends. Where in particular the Applicant has mutually valued relationships with his children and grandchildren, the Tribunal accepts that affirming the decision under review would negatively affect their plans for the Applicant to play a nurturing and positive role in their lives.
In summary, the Tribunal finds that the Applicant has strong ties to Australia through his choice to move to Australia in 1990 and with particular reference to his seven children and fourteen grandchildren and friends in Australia. The Tribunal also has given weight to the Applicant's employment history and involvement in the community as evidenced by the letters and character statements of support provided to the Tribunal. Overall, the Tribunal finds that the strength, nature and duration of the Applicant's ties to Australia provide substantial weight in favour of revoking the original decision.
[106]
8.4 Best interest of minor children in Australia affected by the decision
[107]
Section 8.4(1) of Direction 110 in essence provides that the Tribunal must assess whether or not the non-revocation of the Applicant's visa is or is not in the best interests of any affected child. Section 8.4(2) confirms that for the purposes of s 8.4, this provision only applies to a 'child' if that child "...is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made". Section 8.4(3) clarifies that if there are two or more relevant children involved, the best interests of each child should be given individual assessment, to the extent that their interests may differ. Section 8.4(4) sets out certain factors which must be considered where relevant, where the Tribunal is considering the best interests of the child.
The Tribunal has made its decision with this Primary Consideration having regard to the provisions as summarised in the paragraph above.
At paragraph 35 of the Applicant's Statutory Declaration dated 10 February 2021, he states that "We are a close family" and that he has been an active part of his family growing up. At paragraph 20 he states that "Family is the most important thing to me".
The personal references or letters of support provided include two handwritten ones prepared by the Applicant's then 9-year-old grandchild, H, and the then 10-year-old grandchild, KB. They both refer to missing the Applicant and to activities that they used to do with the Applicant. Likewise, the Applicant refers at paragraph 32 of his Statutory Declaration dated 10 February 2021 to (prior to his incarceration) doing 5-6 days a week of babysitting for his daughter M, in relation to the grandchildren H and KB. It is said that H and KB would also stay over at the Applicant's house and that the Applicant in prison has spoken to them regularly on 'Zoom' and by phone.
I accept that the two grandchildren H and KB used to carry out regular activities with and miss the Applicant and that this carries considerable weight in favour of the Applicant.
Moving to my consideration of the young son who was born form the Applicant's relationship with the SP, the Respondent submitted at the hearing that:
The young son is now 12 and lives with the SP.
[108]
(a) The young son was home at the time of the Applicant's offending on the night of 29 October 2016 and accordingly witnessed the Applicant assaulting his mother.
(b) It is still unclear to what extent the young son would have been adversely affected by this trauma.
[109]
In the Applicant's first Statutory Declaration dated 10 February 2021, he acknowledges that he has not seen his young son since the 29 October 2016 offending due to the Intervention Order. However, the Applicant refers to previously having a close relationship with the young son and wanting to have custody of him.
At the hearing, the Applicant's oral evidence was that he is still keen to develop a meaningful relationship with his young son and play a role in his life. In his Statutory Declaration dated 6 April 2022, the Applicant refers to having recently spoken on the phone with his young son and it is said that this phone call went well. At the hearing, the Applicant likewise referred to having spoken with the young son by phone in 2022, but acknowledged that essentially none of his family from his first marriage have had any contact with the young son since the 29 October 2016 incident due to the Intervention Order.
Where the Applicant claims to have spoken with his young son in 2022 by phone and that this phone call went well, this is problematic to reconcile with:
[110]
(a) The Applicant's own evidence being that an Intervention Order was put in place after his 29 October 2016 offending.
(b) The Applicant at the hearing stating that he was unsure whether this Intervention Order is still in place or not.
[111]
In summary, given the Applicant's lack of contact with his young son over the last nine years, the possibility that the relevant Intervention Order is still in place and the uncertainty how much the trauma of the Applicant's offending of 29 October 2016 (which the young son witnessed) has negatively affected the young son, the Tribunal places little weight on the Applicant's submission that it would be in the best interests of the young son for the Tribunal not to affirm the decision under review.
Turning now to my assessment of the role of the Applicant's grandchildren beyond H and KB, the Tribunal has accepted that the Applicant now has 14 grandchildren living in and entitled to stay in Australia. Reviewing the 'date of birth' information for the Applicant's oldest 10 grandchildren shown at paragraph 29 of the Applicant's Statutory Declaration dated 10 February 2021, his oldest two grandchildren A and T are now legally adults.
At paragraph 33 the Applicant acknowledges that he has never met his grandchildren S, HA and R because they live in Brisbane and were born after the Applicant was incarcerated. However, he states that he has spoken to them in Zoom calls and that "It is important for me to be a part of their lives in the future".
It is also said in a very generic way at paragraph 34 that "We also set up Zoom calls so that I can speak to my kids and grandkids that way". However, beyond the Applicant having regular contact with Harlow and Karter, it is unclear from the Applicant's Statutory Declarations how many of his other grandchildren who are still minors he has actually maintained active contact with, before or after he went to prison. It is also unclear from the information provided by the Applicant about his grandchildren how many of them live in or near Geelong (where the Applicant's home is) and how many live in other parts of Australia.
In summary, in terms of the best interests of those other grandchildren beyond H and KB who are still minors and who would be affected by the Tribunal's decision, I give some limited weight to the Applicant's ties to them. However, the Tribunal puts this no higher than 'limited weight' where on the Applicant's own evidence:
[112]
(a) The Applicant has not physically met three of his grandchildren.
(b) With the remaining grandchildren who are still minors beyond H and KB, it is unclear how many of them the Applicant actually had regular active contact with, before or after he was incarcerated.
(c) It is unclear how many grandchildren live in or near Geelong where the Applicant's home is.
[113]
Overall, having considered all the factors in 8.4 of the Direction for each relevant child as the Tribunal has set out above, the Tribunal considers the best interests of minor children in Australia affected by the decision provides moderate weight in favour of the revoking the decision under review.
[114]
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct which does not comply with this expectation, or where there is an unacceptable risk that they may do so, the Australian community (as a norm) expects the Government to not allow such a non-citizen to enter or remain in Australia.
Clause 8.5(2) of the Direction sets out examples of conduct that would raise serious character concerns where the Australian community would expect that a person who undertook such conduct would not continue to hold a visa - this includes acts of family violence and the carrying out of serious crimes against children.
In determining whether to act in accordance with the deemed community expectations, it is well established that the Tribunal must not infer what the expectations of the Australian community would be by taking into account the personal circumstances of the Applicant. Rather, the Tribunal must proceed on the basis of the normative principles set out in ss 8.5(1) to (4), as per Ismail v Minister for Immigration, Citizenship and Multicultural Affairs[2024] HCA 2 at [52].
On the evidence before it, the Tribunal finds the Applicant has failed to obey laws while in Australia. Where the primary victim was the Applicant's then intimate partner, the Applicant carried out a protracted attack on the SP in her own home where two children were present, which left the SP hospitalised for three days. The Applicant also threatened harm to the SP's daughter with a wooden stick. The Applicant was sentenced to an aggregate jail term of seven years, where he was convicted of one charge of aggravated burglary, two charges of intentionally causing injury and one charge of common assault. The Tribunal finds the Applicant has engaged in serious conduct in breach of the Australian community's expectations.
The Tribunal finds that the expectations of the Australian community weighs significantly in favour of affirming the decision under review.
[115]
In making a decision under section 501CA(4), the Tribunal must also take into account the following considerations.
[116]
The Tribunal accepts that if it affirms the decision under review, the Applicant will remain an unlawful non-citizen, shall be placed in immigration detention and will be liable for removal from Australia as soon as reasonably practicable after he is released from prison. This will mean his desire to remain in Australia with his children and grandchildren as discussed further above will not occur.
The Applicant is not a person who is covered by a protection finding and he has not raised any specific claims that would bring into play or relate to Australia's non-refoulement obligations. There are no special circumstances affecting the Applicant that would result in indefinite detention.
The Tribunal accepts that the legal consequence of affirming the decision means the Applicant's ability to apply for another visa would be curtailed under s 501E of the Act. The Tribunal also accepts that the Applicant may be subjected to indefinite exclusion from Australia by operation of the Special Return Criteria in clause 5001(c) of Schedule 5 of the Migration Regulations 1994 (Cth) if the Minister has not, acting personally, granted the Applicant a permanent visa. Affirming the decision will also adversely affect the Applicant's capacity to meet the requirements of the Public Interest Criterion 4001 of Schedule 4 of the Migration Regulations 1994 in any future visa applications.
It was argued by the respondent that the considerations as just summarised in the three paragraphs above are the intended consequences that follow a decision not to revoke a visa cancellation and that accordingly this consideration should be given neutral weight, following Stonely v Minister for Immigration and Multicultural Affairs[2025] FCA 143.
However bearing in mind the inherent stress for the Applicant where his oral evidence was that he is very fearful of his potential deportation, together with the inherent uncertainty as to when this might occur, on balance the Tribunal finds that this consideration provides very limited weight in the Applicant's favour.
[117]
9.2 Extent of impediments if removed from Australia
[118]
The Tribunal must also consider the extent of any impediments the Applicant may face if he is removed from Australia to his home country, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account his age, health and whether there are substantial language or cultural barriers; and any social, medical and/or economic support available to him in that country.
The Tribunal has considered the Applicant's concerns about his potential deportation back to New Zealand as raised in his relevant written evidence and also discussed with him during the hearing. The Tribunal accepts that the Applicant will miss his extended family in Australia and that he may experience some emotional stress and emotional hardship due to this absence.
In this regard, the Tribunal has taken into account that the Applicant is now 65 years of age and that in Australia he has been on a disability pension for the last 15 years or so. In this context, the Tribunal accepts that if he returns to New Zealand, the Applicant is unlikely to return to employment again and may experience some extent of financial hardship.
Whilst acknowledging that most of the Applicant's family lives in Australia, the Applicant on his own evidence has a brother and a sister (and several nieces or nephews) who still live in or near Auckland in New Zealand. The Applicant in particular gave oral evidence that he has a stable relationship with his sister who lives in or near Auckland.
There will be minimal cultural or language impediments, given the similar culture of Australia and New Zealand and noting that English is a primary language spoken in both countries.
The Tribunal is mindful of the Applicant's limited mobility and various current health issues as discussed further above in this Reasons. The Tribunal accepts that these 'health constraints' will in the future need considerable management, but finds that the standard of available health care offered in New Zealand is broadly comparable to that in Australia.
The Tribunal places considerable weight on the following well-researched submissions taken from paragraphs 71 - 72 of the SOFIC:
[119]
(71) "In relation to the Applicant's health, the Respondent contends that the Applicant would have access to comparable health care services in New Zealand including health initiatives available to persons of Maori heritage (see Maori heath models, Ministry of Health NZ and Get publicly funded health services, New Zealand Government). The Applicant may also be eligible for the New Zealand state pension as he is over 65 years of age (see Find out if you can get NZ Super or Veteran's Pension - Work and Income).
(72)In addition, there appears to be a genuine prospect that the Applicant would receive structured support to re-establish his life in New Zealand if he returned. This is through the operation of the Returning Offenders (Management and Information) Act 2015 (NZ), which is designed to facilitate the safe reintegration of "returning prisoners" into the New Zealand community".
[120]
In summary, the Tribunal accepts the Applicant will face some extent of financial, social and emotional challenges if he is removed from Australia to New Zealand. Whilst acknowledging this extent of challenges and impediments, the Tribunal also considers some aspects of them to be somewhat temporary in nature. Certainly, the Tribunal does not see any of the relevant challenges and impediments as being insurmountable, noting that the Applicant will have the benefit of having two siblings and several nieces and nephews already living in New Zealand. The Applicant would have the benefit of the cultural and language similarities between Australia and New Zealand and their similar health care systems, albeit the Applicant may in fact be eligible (as a Māori) to utilise some Government assistance in New Zealand that would not be available in Australia.
Having considered all the factors noted above, the Tribunal finds that the 'extent of impediments if removed' provides some limited weight in favour of revoking the original decision.
[121]
The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to enter or remain in Australia, but where an employment link would usually only be given weight where the decision under section 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
While the Tribunal notes the Applicant's previous work in Australia, he has been on a disability pension in Australia for the last 15 years ago and it is self-evident that the Applicant is unlikely to return to employment. Accordingly, the Tribunal finds that the circumstances of the Applicant would not fall into the category contemplated by this consideration. Hence the Tribunal finds that this consideration counts neither for nor against revoking the decision under review.
[122]
As explained further above, the Applicant does not pass the character test under section 501 of the Act, and the Tribunal has to make a finding whether there is another reason why the original decision should be revoked pursuant to section 501CA(4), having regard to the Minister's Direction No. 110.
The Tribunal has given appropriate weight to information from independent and authoritative sources, and the primary consideration at clause 8.1 has been given greater weight than the other primary considerations, while the remaining primary considerations have been given greater weight than the other considerations, consistent with the Direction.
The Tribunal has taken the principles found at 5.2 of the Direction into consideration, including the principle that Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their lives, or from a very young age - the Tribunal has given weight to this principle where the Applicant has lived in Australia since 1990 when he was 30 years of age.
Having considered the particular circumstances of the Applicant, the Tribunal considers the protection of the Australian community from criminal or other serious conduct weighs heavily in favour of affirming the decision under review, as does the family violence committed by the Applicant. The strength, nature and duration of the Applicant's ties to Australia provides substantial weight in favour of revoking the original decision, and the best interests of minor children in Australia affected by the decision provides moderate weight in favour of revoking the original decision. The expectations of the Australian community provides significant weight in favour of affirming the decision under review. Of the other considerations as relevant, the legal consequences of the decision provides very limited weight in favour of the Applicant. The extent of the impediments to the Applicant if removed provides some limited weight in favour of revoking the original decision.
While the Tribunal has taken into account that the two relevant primary considerations 8.3 and 8.4 and the two other considerations (as summarised in the preceding paragraph) are favourable for the Applicant, it finds that overall this carries less weight compared to the primary considerations 8.1, 8.2 and 8.5 which count 'heavily', 'heavily' and 'significantly' against the revoking of the decision under review.
The Tribunal's key findings in the preceding paragraph are reinforced by the statement made at s 7(2) of the Direction that the primary consideration 8.1 (protection of the Australian community) is "...generally given greater weight than other primary considerations", and that "...primary considerations should generally be given greater weight than other considerations".
Having weighed up all the factors as part of a single evaluation as set out in the 'Conclusion' discussion and findings above, the Tribunal is not satisfied there is another reason why the original decision should be revoked under section 501CA(4), having regard to the Direction.
[123]
The decision not to revoke the cancellation of the Class TY (Subclass 444) Special Category (Temporary) visa is affirmed.
[124]
Solicitor for the Respondent: Ms Sarah Hardie, HWLE Lawyers
[3] With the oldest daughter being the one actually driving.
[127]
[5] See BSJ16 v Minister for Immigration and Border Protection[2016] FCA 1181, [568] per Moshinsky J, plus Hambledon v Minister for Immigration and Border Protection[2018] FCA 7, [41] per Kenny J.
Legislation Cited (5)
Offenders (Management and Information) Act 2015
Appeals Tribunal Act 1975
Review Tribunal Act 2024
Review Tribunal (Consequential and Transitional Provisions No.](/cgi-bin/viewdoc/au/legis/cth/num_act/artatpn1a2024807/index.html) [1) Act 2024
Amendment Act 2024
Cases Cited (5)
VXNS and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2295 (29 October 2025)
BSJ16 v Minister for Immigration and Border Protection[2016] FCA 1181
Hambledon v Minister for Immigration and Border Protection[2018] FCA 7
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs[2024] HCA 2
Stonely v Minister for Immigration and Multicultural Affairs[2025] FCA 143