Ali and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 5232

Ali and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5232 (9 December 2020)
Division:GENERAL DIVISION
File Number:2020/5659
Re:Aktar Irfan Ali
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member Theodore Tavoularis
Date of Decision: 9 December 2020
Date of Written Reasons: 24 December 2020
Place:Brisbane

The decision under review is affirmed.
........................................[sgd]................................
Senior Member Theodore Tavoularis
Contents
Introduction and Background
Issues
Does the Applicant pass the character test?
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
Primary Consideration A – Protection of the Australian Community
The Nature and Seriousness of the Applicant’s Conduct to Date
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Conclusion: Primary Consideration A

Primary Consideration B: The Best Interests of Minor Children in Australia
The Applicant’s written evidence
The Applicant’s evidence in chief
The Applicant’s evidence in cross-examination
The evidence of other witnesses about the Applicant’s relationship with the relevant minor children
The evidence of Dr Yoxall
Application of Factors in Paragraph 13.2(4) of the Direction
Conclusion: Primary Consideration B

Primary Consideration C: The Expectations of the Australian Community
The relevant paragraphs in the Direction
Factual circumstances relevant to this Primary Consideration C
The Evolution of the Australian Community’s “Expectations”
Analysis – Allocation of Weight to this Primary Consideration C
Conclusion: Primary Consideration C

Other Considerations
(a) International non-refoulement obligations
(b) Strength, nature and duration of ties
(c) Impact on Australian business interests
(d) Impact on victims
(e) Extent of impediments if removed
Conclusion
Decision
Annexure “A”
Annexure “B”
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class UK Subclass 820 Partner visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Ahori and Minister for Immigration and Border Protection [2017] AATA 601
Divane and Minister for Immigration and Border Protection (Migration) [2016] AATA 728
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs[2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Khalil v Minister for Home Affairs [2019] FCAFC 151
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Home Affairs v Stower [2020] FCA 407
PNLB and Minister for Immigration and Border Protection [2019] AATA 162
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
Secondary Materials
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member Theodore Tavoularis
24 December 2020
introduction and background

Mr Aktar Irfan Ali (“the Applicant”) is a 37-year-old citizen of Fiji.[1] Movement records indicate that the Applicant first arrived in Australia on 20 November 2005, aged 22 years. Ten days prior to his arrival, he was granted a tourist visa, more particularly described as “TR-676”.[2] He has a detailed history of inwards and outwards movements between Australia and Fiji, which can be described thus:
·Initial arrival 20 November 2005, departed 19 January 2006;
·Arrived 11 March 2007, departed 27 March 2007;
·Arrived 19 September 2009, departed 14 July 2010;
·Arrived 6 August 2010, departed 5 November 2010;
·Arrived 5 July 2011, departed 28 March 2012;
·Arrived 9 April 2012, departed 1 June 2013; and
·He finally arrived in Australia on 5 June 2013 and has not left Australia since that time.[3]
[1] Exhibit R2, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), page 2, paragraph [4].
[2] Exhibit G1, G31, page 335.
[3] Ibid, pages 332-335.
The most recent visa granted to him on 5 December 2014 was a Partner (Temporary) visa, more particularly described as UK-820 (“the visa”).[4]
[4] Ibid, page 332.
The Applicant’s history of criminal offending in Australia is one of relative brevity. He is not a serial offender, nor can he be said to have otherwise troubled law enforcement authority to any significant extent. His offending derives from a domestic relationship that went awry and that, on any reasonable view, he abjectly failed to properly manage his exit from. The offending derives from a singular – albeit very serious – episode of very violent offending towards his former spouse. That singular episode spawned the following convictions:

Court

Date

Offence

Result

Brisbane District Court

4.

23/5/2018

5.

Common assault – domestic violence offence (committed on 5 April 2015)[5]

Conviction recorded

Sentenced to a term of imprisonment for six months

This custodial term ordered to be served concurrently with other custodial terms imposed on that date

Common assault – domestic violence offence (committed on 5 April 2015) [6]

Conviction recorded

Sentenced to a term of imprisonment for 12 months

This custodial term ordered to be served concurrently with other custodial terms imposed on that date

Common assault – domestic violence offence (committed on 5 April 2015)[7]

Conviction recorded

Sentenced to a term of imprisonment for 15 months

This custodial term ordered to be served concurrently with other custodial terms imposed on that date

Grievous Bodily Harm – domestic violence offence (committed on 5 April 2015)[8]

Conviction recorded

Sentenced to a term of imprisonment for two years and 11 months, to be suspended for three years after serving 17 months in actual custody

This custodial term ordered to be served concurrently with other custodial terms imposed on that date

Brisbane Magistrates Court

21/6/2019

Contravention of domestic violence order (committed on 17 February 2015)[9]

On all charges, conviction recorded, not further punished

[5] Pursuant to s 335 & 564(3A) of the Criminal Code Act 1899 (Qld).
[6] Pursuant to s 335 & 564(3A) of the Criminal Code Act 1899 (Qld).
[7] Pursuant to s 335 & 564(3A) of the Criminal Code Act 1899 (Qld).
[8] Pursuant to s 320 & 564(3A) of the Criminal Code Act 1899 (Qld).
[9] Pursuant to s 177(2) of the Domestic and Family Violence Protection Act 2012 (Qld).

At the time of the common assault and grievous bodily harm offences committed on 5 April 2015, the Applicant was aged 31 years. Upon being charged with the subject offences in or about mid-2015, he was granted bail and went at large in the community until his sentencing in May 2018. Prior to his commission of the assault/grievous bodily harm offences, the Applicant had no prior criminal history in Australia. Upon his conviction and sentencing on 23 May 2018, the Applicant was incarcerated at the Borallon Training and Correctional Facility. There is no indication of his involvement in reportable incidents of misconduct during his time in criminal custody, which is otherwise recorded to have been one of compliance and good behaviour.[10]
[10] Exhibit G1, G15, page 122.
After serving the mandated 17 months in actual criminal custody (on and from 23 May 2018[11]), he was transferred to the Brisbane Immigration Transit Accommodation facility on 22 October 2019. While he was in criminal custody, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the “Minister” or “Respondent”), pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the “Act”), decided on 6 August 2018 to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test.[12]
[11] Note: The Applicant was in pre-sentence custody for 30 days prior to the sentencing event: Exhibit G1, page 36.
[12] Ibid, G10, page 41.
By a document dated 27 August 2018, the Applicant notified the Minister’s Department of a request for the revocation of the decision to mandatorily cancel his visa.[13] The delegate of the Minister decided on 15 September 2020, pursuant to s 501CA(4) of the Act not to revoke the cancellation of the subject visa.[14] The Applicant lodged an application with this Tribunal on 17 September 2020, seeking a review of the abovementioned decision dated 15 September 2020 not to revoke the cancellation of his visa.[15] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.[16]
[13] Ibid, G11, page 47.
[14] Ibid, G3, page 12.
[15] Ibid, G1, page 1.
[16] For the Tribunal to have jurisdiction to review the decision, the Applicant must also have lodged the application for review with the Tribunal within nine days after the day on which he or she received notification of the decision – see s 500(6B) of the Act.
The hearing of the instant application proceeded before me on 1, 2 and 4 December 2020. The hearing received oral evidence from: (1) the Applicant; (2) the Psychologist and Associate Professor in Allied Health, Dr Jacqui Yoxall; (3) the Applicant’s father, Mr Asgar Ali; (4) the Applicant’s stepmother, Ms Marleine Williams Ali; and (5) the Applicant’s brother, Mr Azad Imran Ali. The Tribunal also received written evidence. This written evidence was particularised into an agreed exhibit list, a true and correct copy of which is attached to these Reasons and marked “Annexure A”.
An Important Procedural Aspect of This Matter
This application was originally listed for hearing in this Tribunal on Tuesday, 1 December and Wednesday, 2 December 2020. The hearing was conducted by way of video conference. Technical difficulties with the video conferencing resulted in the loss of almost half a day of hearing time on 1 December 2020. This, in turn, impacted upon the availability of the expert witness sought to be called by the Applicant, namely, Dr Jacqui Yoxall. The Tribunal fully accepts and appreciates the exigencies and other requirements impinging upon the schedules and resulting availability of expert witnesses. The consequence of the delay in commencing the hearing on 1 December 2020 was that Dr Yoxall was not in a position to provide her evidence until 11am (Brisbane time) on Friday, 4 December. There followed (on that day) closing submissions resulting in the completion of the hearing at circa 3-4pm on that day.
The 84^th day[17] in this matter occurred on Wednesday, 9 December 2020. I was mindful that the Applicant had incurred the not-insignificant expense arising from his retention of competent and able legal representation, together with the expert evidence of Dr Yoxall. I was also mindful that the Respondent was also represented by able and competent legal representation. The upshot of this was that a deal of written and oral material was generated for my consideration and determination of this matter. I accordingly formed an intention to consider that material as fulsomely as possible and to deliver an appropriately detailed decision. I did not consider that I could deliver suitable detailed written reasons in the relatively short period between the end of the hearing on Friday, 4 December 2020 and the expiration of the relevant 84-day period on Wednesday, 9 December 2020.
[17] See s 500(6L)(c) of the Act.
Accordingly, on Wednesday, 9 December 2020, I caused the Tribunal to publish its Decision in this application pursuant to s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth). In so doing, the Tribunal also met the requirements of s 500(6L)(c) of the Act. Attached to these Reasons and marked “Annexure B” is a true and correct copy of that Decision.
In accordance with the principles outlined by the Full Federal Court in Khalil v Minister for Home Affairs [2019] FCAFC 151 (“Khalil”), the Tribunal now publishes the written Reasons to the parties. In Khalil, the Full Federal Court said:
“41. The AAT Act thus draws a clear distinction between the decision of the Tribunal under s 43 which is, relevantly, what causes the 84 day period to stop running, and the reasons for decision. In BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 the Tribunal had handed down a decision on a review of a decision of the Australian Securities Commission that was before it, confirming an exemption that the Commission had granted on certain conditions, but substituting different conditions. At the time of announcing the decision the Tribunal did not give any reasons. It delivered written reasons some 14 days later. Beaumont J held (at 271‑273, Lockhart and Hill JJ agreeing at 253) that the Tribunal's omission to provide reasons at the time of announcing its decision was not an error, as on the proper construction of s 43(2) of the AAT Act, the Tribunal was only required it to give its reasons, oral or in writing, within a reasonable time of the decision.
…
48. What the Tribunal had to do here within the 84 days was to deliver a decision, not necessarily express reasons…”
[My underlining]
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(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.
The Applicant has made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[18]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[19]
[18] [2018] FCAFC 151.
[19] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[20] I will address each of these grounds in turn.
[20] Ibid.
Does the Applicant pass the character test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant concedes the following:
“23. It is conceded the Applicant does not pass the character test because of s. 501(6)(a) of the Migration Act, read with s. 501(7)(c). That being so, the issue in this case is whether there is “another reason” why the cancellation should be revoked (s. 501CA(4)(b)(ii)).”[21]
[21] Exhibit A1, page 5.
I have had regard to the custodial terms imposed upon the Applicant on 23 May 2018. Those custodial terms comprise:
·Two years, 11 months (suspended for an operative period of three years after serving 17 months in actual custody);
·15 months (to be served concurrently with the other custodial terms imposed on that day);
·12 months (to be served concurrently with the other custodial terms imposed on that day); and
·Six months (to be served concurrently with the other custodial terms imposed on that day).
As at least three of the abovementioned custodial terms constitute ‘a term of imprisonment of 12 months or more’, the Applicant does not pass the character test by virtue of his “substantial criminal record” as defined in s 501(7)(c) of the Act. I therefore find that the Applicant does not pass the character test pursuant to s 501(6)(a) of the Act.
Pursuant to my finding that he does not pass the character test, the Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) has application.[22] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:[23]
(1)…a decision maker:
…
b) 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.
[22] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[23] The Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
a)    Protection of the Australian community from criminal or other serious conduct;
b)    The best interests of minor children in Australia;
c)    Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a
non-exhaustive list in paragraph 14 of the Direction. These considerations are:
a)    International non-refoulement obligations;
b)    Strength, nature and duration of ties;
c)    Impact on Australian business interests;
d)    Impact on victims;
e)    Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[24]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
[24] [2018] FCA 594 at [23].

Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(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 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;
(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;
(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 be allowed to come to or remain permanently in Australia; and
(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 for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to 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. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, this paragraph stipulates an expectation that those non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (b) those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
Initial concessions made by the Applicant
With specific reference to the capacity of paragraph 13.1 of the Direction to allocate weight to the relevant factors appearing in that paragraph, the Applicant’s Statement of Facts, Issues and Contentions (“SFIC”) records the following initial concessions:
“27. The Applicant’s assault-based offences against XD constitute crimes of a violent nature against a woman. Pursuant to the principles at paragraph 13.1.1(1)(a), (b) and (d), these offences ought to be categorised as very serious.
28. With regard to (d), we note the Applicant received sentences that were well below the maximum available penalties (14 years imprisonment for grievous bodily harm4 and 3 years imprisonment for common assault5). Nevertheless, we do not dispute that his receipt of a term of actual incarceration is a reflection of the seriousness of his offending conduct.
29. His conduct which gave rise to the contravention offence on 17 February 2015 did not attract any associated offence of violence, albeit conduct that breached the condition that he be of good behaviour. The Statement of Facts reflects they were engaged in a struggle over his phone while XD was holding their son. The Applicant’s recollection of the offence, and the circumstances leading to it, are contained at G 280 [40] – [47].
30. This crime was of course an offence of domestic violence. It was further aggravated by the fact that it occurred in the presence of the Applicant’s son who, while not harmed, was nevertheless exposed to a risk of harm. For these reasons, we concede it is open to the Tribunal to find it was serious in nature. That said, there are very different levels of seriousness of conduct. As has often been observed by the Tribunal, in one sense it could be said that any criminal activity is serious. In considering the specific circumstances, we submit this particular incident falls towards the lower end of the spectrum of seriousness.
…
36. These other sub-considerations do not disturb the inescapable conclusion that his domestic violence offences were very serious. However, they are relevant is in determining the extent to which this Primary Consideration weighs against revocation (if at all).”[25]
[25] Exhibit A1, pages 6-7.
In its SFIC, the Respondent makes the following contention about Paragraph 13.1.1(1) of the Direction as it relates to the nature and seriousness of the Applicant’s conduct: “30. The applicant’s offending should be viewed as very serious.”[26] While I appreciate the parties’ respective contentions about the nature and seriousness of the Applicant’s offending, I am of the view, for reasons that follow, that the most accurate assessment of the nature and seriousness of the Applicant’s offending can be derived from an application of the relevant factors contained in Paragraph 13.1.1(1) of the Direction.
[26] Exhibit R2, page 7.
The nature of the Applicant’s offending committed against his former spouse is such as to immediately attract the attention of the relevant Principles contained in paragraph 6.3 of the Direction. Principle (1) refers to Australia’s sovereign right to determine whether non‑citizens who are of character concern are to be allowed to enter into and/or remain in Australia. Principle (2) refers to the Australian community’s expectation that the Australian Government should cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere. Principle (4) mandates that in some circumstances the nature of a non-citizen’s 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.
Application of Factors in Paragraph 13.1.1(1) of the Direction
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant for present purposes are the following factors appearing at paragraph 13.1.1(1) of the Direction:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)…
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)…
(h)…
(i)....
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. The material contains references to the circumstances of the Applicant’s offending committed on 5 April 2015 resulting in his respective convictions for (1) one count of grievous bodily harm and (2) three counts of common assault. It is pertinent to, at this stage, have regard to the circumstances of the Applicant’s offending on 5 April 2015 as recorded by the learned sentencing Judge,[27] who made the following observations:
“HIS HONOUR: Yes, stand up, please. Aktar Irfan Ali, you have been convicted by a jury of three counts of common assault and one count of grievous bodily harm. Each of those charges is averred to be a domestic violence offence. At the time that you committed those offences, you were 31 years of age. You had no prior convictions – and I take that into account – and I note that there has been some reasonably considerable delay in this matter being finalised through no fault of your own.
You have taken the matter to trial by pleading not guilty which is, of course, your lawful right and you are not to be punished more severely simply because you exercised that lawful right. However, adopting such a course is indicative, of course, of there being no remorse whatsoever in this matter and that is a relevant consideration when determining an appropriate degree of leniency that might be necessary to recognise in a case such as this. You have spent 30 days in pre-sentence custody which cannot be declared but I will take that into account. An aggravating feature of this matter is the fact that you were the subject of a …Temporary domestic violence order at the time that you committed these offences and, of course, the fact that these are domestic violence offences is aggravating in and of itself. The offences all occurred on the one day, really, in the same incident. For count 1, you grabbed the complainant’s hair and pulled her to the ground. For count 2, you placed your hands around her throat and you squeezed for a period of time. You then punched her to the jaw when she was on the ground on her back. You did so with both fists simultaneously to each side of her jaw and you did that on two occasions. And in respect of count 4, you, again, placed your hands around her throat for some period of time.
She suffered a broken jaw as a consequence of those punches. It was a significant break. She required surgical intervention with the introduction into her bone structure of plates and screws. She suffered significant pain as a consequence of that injury. That is quite apparent. It appears to me that you very quickly realised the seriousness of your situation and then there was a delay in you taking her for medical assistance. A delay of some hours and the only explanation for that is that you were concerned that she would – or that the authorities would learn of how these injuries – or this injury – was occasioned to her and, in that regard, you were quite callous in allowing her to not receive medical attention for what, in the circumstances, can only be described as a significant period of time.
The complainant is the mother of your child who was about nine months of age at that stage. You and she had been in a relationship and were married, if I remember correctly. The relationship was in its death throes, it seems to me on all the evidence, at the time of this and there can be no doubt that there were many tensions within the relationship for a number of reasons. None of that, of course, excuses your behaviour. You attacked this woman, someone much smaller than you, and you did so with a significant degree of force. The medical evidence is really beyond doubt in that regard. And, of course, you inflicted punches to her jaw on two separate occasions. Doing that once was not enough to make you immediately wake up to yourself and stop yourself but you did it a second time. It is not known which of those punches broke her jaw.
The effect of this assault upon her has been substantial. She has suffered emotional, social, psychological and physical harm and adverse impacts as a consequence of your behaviour, all of which is completely understandable. As you would appreciate, and as your own counsel quite properly recognised in the course of his address to the jury, domestic violence is a scourge on society and is something that the Courts strive to impose sentences that will deter both offenders and others who might be like minded. General deterrence is a particularly significant consideration in a matter such as this. So too, though, are issues such as appropriate and just punishment, public denunciation and, I suspect to a lesser degree, at least in so far as the present circumstances are concerned, specific deterrence, although it does seems that anger management issues are a problem for you on all of the evidence before this Court.”[28]
[My emphasis and underlining]
[27] His Honour Judge Farr SC, DCJ, District Court of Queensland.
[28] Exhibit G1,G6, pages 33-35.
It is plain from Judge Farr’s sentencing remarks that the offences committed by the Applicant upon his former wife are of a serious and violent nature. This sub-paragraph (a) stipulates that “without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously”. I am hard-pressed to avoid a finding that the circumstances of the Applicant’s offending upon his former wife were indeed violent, regardless of whether the charges for which he was convicted ranged from common assault (in a domestic paradigm) to grievous bodily harm (also in a domestic paradigm). There can be no argument with the finding that his dreadful and cowardly offending upon a victim much smaller in physical stature than him, must surely be found to be very serious. This finding is consistent with the stipulation in this sub-paragraph (a) that such offending conduct is to be viewed “very seriously”.
It is difficult to find any directly causative external factor compelling the Applicant to have conducted himself in such a dangerous manner. At the time of the offending he was not intoxicated, nor was he under the influence of illicit substances. His propensity to offend appears to derive from a lack of self-control when he felt challenged in a domestic context. In the course of the sentencing remarks, there is a reference to Judge Farr having been taken to comparative cases as a guide for the imposition of the extent of any head custodial term. Interestingly, one of the comparative cases involved provocative behaviour exhibited by a victim towards an offender. As noted by Judge Farr, no such provocative behaviour emanated towards this Applicant from his victim. Indeed, it appears the offending resulted from displeasure experienced by the Applicant about whether his victim had or had not done an amount of laundry:
“It has been submitted that a head sentence of two and a-half years would be appropriate in all of the circumstances of this matter. I’ve been referred to two cases in that regard. I don’t intend to go through those cases in any detail. But in my view, this matter calls for a sentence, to properly reflect all relevant considerations, of three years as a head sentence. The matter of Clarke, I note, resulted in a sentence of two and a-half years but it was after a plea of guilty. That is a significant consideration on sentence and there was some very provocative behaviour – not using that in the legal sense – on the part of the complainant in that matter that was absent here. Here you simply lost your temper, it would seem, over something as ridiculous as laundry not having been done. The matter of RAP, of course, involved a much less serious charge. One of assault occasioning bodily harm. Notwithstanding that a two year term of imprisonment was imposed after the entry of a timely plea of guilty.”[29]
[29] Ibid, pages 35-36.
Thus, there cannot be said to be any externally imposed factor impacting upon the Applicant’s capacity to control himself during a moment of anger or frustration. His only explanation for his astonishing and very serious reaction, which saw him devolve into conduct amounting to very serious offending, is only to be found in his failure to control his own temper and propensity to lash out at a domestic spouse who, he felt, was frustrating him in the way he wanted things to be. It must have surely been clear to him that the relationship was in its “death throes” and that it was otherwise on the wane. He refused to accept his victim’s right to assert herself and her own status as his co-spouse in that scenario. If the laundry had not been done, the Applicant should have left well enough alone. Yet he failed to do so and his resulting conduct caused Judge Farr to have little or no hesitation in imposing a head custodial term of just under three years.
I am of the view that an application of this sub-paragraph (a) strongly militates in favour of a finding that the Applicant’s violent conduct has been very serious.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed.
The exercise of applying this sub-paragraph (b) to the instant factual matrix is, to my mind, rendered significantly more straightforward due to the words “regardless of the sentence imposed” appearing within it. It is clear that the draftsperson of Direction 79 intended for this Direction to readily facilitate a finding that violent offending towards women (or children) must be found to be “very serious”. In the instant case, the Applicant’s very violent conduct against his former wife resulting in necessary reconstructive surgical intervention is plain from the nature of those appalling injuries. As noted by Judge Farr, “The effect of this assault upon her has been substantial. She has suffered emotional, social, psychological and physical harm and adverse impacts as a consequence of your behaviour…” Little more need be said about the nature of the Applicant’s offending militating very strongly in favour of a finding than that his offending against the female person comprising his ex-wife has been very serious.
While the wording of sub-paragraph (b) refers to “regardless of the sentence imposed”, it is, to my mind, significant that as a first-time offender, Judge Farr saw fit to impose an almost three year head custodial term on this Applicant. Therefore, while the sentence may not be of essential relevance to this sub-paragraph (b) (for the purpose of ascertaining allocable weight to it), the sentence imposed by Judge Farr is nevertheless supportive of a finding that the Applicant’s conduct towards his ex-wife was, indeed, very serious.
There is authority for the proposition that the wording of this sub-paragraph (b) allows no discretion in the Tribunal to view the Applicant’s violent offences in anything other than a “very serious” light:
“45. That direction required the Tribunal to view the 2016 offences, and the 2011 offence against the respondent’s former partner, very seriously. I can only think that the words “very seriously” were chosen advisedly in drafting Direction 79. These words are not some flourish of the pen. There was no discretion reposed in the Tribunal to view the offences in some lesser or different light. But this is what the Tribunal did.”[30]
[30] Minister for Home Affairs v Stower [2020] FCA 407.
I consequently find that an application of this sub-paragraph (b) to the circumstances of the Applicant’s conduct towards his former spouse on 5 April 2015 most certainly merits the allocation of a heavy level of weight in favour of a finding that his offending has been of a very serious nature.

Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction provides that “crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the positions they hold, or in the performance of their duties, are serious.” I am mindful that material contains a reference to the Applicant having committed his very violent offending upon his ex-wife on 5 April 2015 in the presence of their then nine month old son. While not necessarily determinative of any weight in favour of a finding about the nature of the offending referable to this sub-paragraph (c), it is clear that the Applicant’s offending was committed in the presence of their nine month old son:
“On Easter Sunday 05/04/15, ALI and [name of ex-wife redacted] were at home with their nine month old son. At 3:15pm, [name of ex-wife redacted] requested to go and pick up her daughter from her mother’s house which result in ALI watching their son until her return. ALI became angered and told [name of ex-wife redacted] that he needed to pray at 4:30[m and that she had not completed her chores including the washing of the family clothes. [Name of ex-wife redacted] replied that she had not had time due to watching the children and preparing meals for the family.
[Name of ex-wife redacted] stated that she could take their son with her to her mother’s house and collect her daughter. [Name of ex-wife redacted] stated that if she did this she would like to spend time with her mother and wold come home with the children at 9pm. ALI replied that this was not ok and that [name of ex-wife redacted] had a job to do at home. ALI said to [name of ex-wife redacted] that if she didn’t like she could leave. [Name of ex-wife redacted] replied, “Ok.”
This conversation took place in the bedroom with their son present. ALI then [name of ex-wife redacted] by her hair and pulled her to the floor. [Name of ex-wife redacted] screamed out in surprise. ALI positioned himself on top of [name of ex-wife redacted] and started to choke her using both his hands around her neck.
Their son who sitting on the bed started to cry and [name of ex-wife redacted] pushed ALI back and said, “ALI the baby is crying, just control yourself.” ALI replied, “Why are you yelling, do you want me to get in trouble again?”
ALI was still on top of [name of ex-wife redacted] ALI then punched [name of ex-wife redacted] twice with a closed fist into her jaw. [Name of ex-wife redacted] felt immediate pain and blood spilled quickly from her jaw.
ALI then said to [name of ex-wife redacted] “You think I can’t kill you? I can kill you tonight”.”[31]
[My underlining]
[31] Exhibit R1, TB1, pages 45-46.
While I accept that the above-quoted portion of the relevant tender bundle is not demonstrative of the Applicant offending against a “vulnerable” member of the community (in the person of his then-nine month old son), it is clear that the circumstances of his offending occurred in the presence of their nine month old child. In the circumstances, deplorable though this may be, it does not constitute a crime “committed against vulnerable members of the community”. As such, no weight can be allocated to this sub-paragraph (c) towards any assessment of the nature and seriousness of the Applicant’s conduct to date.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) of paragraph 13.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending. It is broadly accepted that sentences involving a term of actual imprisonment are the last resort in any reasonably applied sentencing regime. The logical corollary of that observation is that any sentence must be viewed as a reflection of the objective seriousness of the offences involved.[32]
[32] See PNLB and Minister for Immigration and Border Protection [2019] AATA 162 at [22], per SM Poljak.
In terms of the allocation of weight to the nature of sentences imposed on a given Applicant, this Tribunal has previously said “"Dispositions involving incarceration are a last resort in the sentencing hierarchy and this weighs heavily against the revocation of the mandatory cancellation of Mr Saleh’s visa.”[33]
[33] Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50], per DP Kendall.
I have earlier summarised the sentences received by the Applicant for his very serious offending. It is also pertinent to have regard to Judge Farr’s sentencing remarks for the specific purposes of this sub-paragraph (d). In my view, those sentencing remarks amply demonstrate how an imposed sentence is demonstrative of the objective level of seriousness of a given offence/offending. Prior to imposing his sentence, Judge Farr sought to contextualise that offending. His Honour (with respect) rightly observed that:
“…domestic violence is a scourge on society and is something that the Courts
strive to impose sentences that will deter both offenders and others who might be like
minded. General deterrence is a particularly significant consideration in a matter
such as this. So too, though, are issues such as appropriate and just punishment,
public denunciation and, I suspect to a lesser degree, at least in so far as the present
[34] Exhibit G1, G6, page 35.
circumstances are concerned, specific deterrence, although it does seems [sic] that anger management issues are a problem for you on all of the evidence before this Court.”[34]
After contextualising the offending and receiving submissions about applicable comparative sentences, His Honour (again, with respect) rightly observed that one of those comparative sentences involved “…some very provocative behaviour.” After observing that the only “provocation” that the Applicant could have experienced from his victim involved “something as ridiculous as laundry not having been done” His Honour imposed the following sentence:
"As I say, in my view, taking all of those matters into account, a sentence of three years imprisonment on the most serious of the charges would be most appropriate. I will reduce that period by one month to recognise the 30 days you have spent in resentence custody that cannot be declared and I agree with your counsel’s submission that in the circumstances of this matter it would be appropriate to suspend the sentence that I impose after you have served half of it. And, again, it is appropriate to reduce that by that one month period of time.
So the order of the Court is as follows: on count 1, you are sentenced to six months imprisonment; on count 2, 12 months imprisonment; on count 3, two years, 11 months imprisonment; on count 4, 15 months imprisonment. All terms of imprisonment are to be served concurrently. I order that that term of imprisonment be suspended after you have served a period of 17 months. The operational period during which you must not commit any other offences potentially punishable by imprisonment is one of three years. And I declare, if such a declaration is necessary, each offence to be a domestic violence offence.
That means, Mr Ali, is [sic] that you’ll be released after you have served a period of 17 months imprisonment but you’ll have the balance of that term of imprisonment hanging over your head for a period of three years. If you were to breach that term of imprisonment by committing any other offence that was potentially punishable by imprisonment irrespective of whether you are, in fact, sentenced to imprisonment or not, then you would be in breach of that order and you will be brought before this Court at which time the onus would be upon you to show cause why it would be unjust to order that you serve the balance of that sentence. And, of course, I make those comments with the knowledge that it is very likely that upon your release from imprisonment you would be taken into immigration detention and deported soon thereafter.”[35]
[35] Ibid, page 36.
It is also pertinent to have regard to the cumulative period of time represented by the head custodial terms imposed on the Applicant on 23 May 2018. As I understood the sentencing regime imposed by Judge Farr, the Applicant was sentenced to cumulative custodial terms amounting to 68 months, or five years and eight months. I have earlier outlined the Applicant’s movements in and out of Australia. During the period November 2005 until June 2013, the Applicant spent something in the order of three years in Australia. I have noted that he arrived in Australia on a final “to settle here” basis in June 2013 and did not depart Australia since that time.
The nature of the sentences imposed upon him can be viewed in one of two ways in gauging the level of seriousness attributable to his offending. If one assumes his period of residence in Australia runs from November 2005 (his initial arrival) to May 2018 (his placement into criminal custody), his offending has been punished by cumulative head custodial terms representing just under half the totality of his time in this country. Alternatively, if one assumes he has resided here (on a final basis) from June 2013 to May 2018, the cumulative head custodial terms imposed upon him represents a period greater than the totality of the time he spent in Australia on a final basis in the general community of this country. It should also be noted that the imposition of an almost three year head custodial term for the Applicant’s first instance of offending in this country is inherently indicative of the very serious nature of his offending.
It should also be noted that the maximum penalty for the commission of a grievous bodily harm offence pursuant to s 320 of the Queensland Criminal Code comprises a maximum custodial term of 14 years. The head sentence imposed upon this Applicant for his grievous bodily harm offence was just under three years, or approximately 21% of the maximum. As can be noted from the sentencing remarks, Judge Farr was hard-pressed to find any specific features militating in favour of some type of discount to the head custodial term such as, for example, an early or timely plea. Instead, His Honour noted these things:
·“You have taken the matter to trial by pleading not guilty which is, of course, your lawful right and you are not to be punished more severely simply because you exercised that lawful right. However, adopting such a course is indicative, of course, of there being no remorse whatsoever in this matter and that is a relevant consideration when determining an appropriate degree of leniency that might be necessary to recognise in a case such as this,” and
·“An aggravating feature of this matter is the fact that you were the subject of a …Temporary domestic violence order at the time that you committed these offences and, of course, the fact that these are domestic violence offences is aggravating in and of itself.”
Judge Farr thought that “…a sentence of three years imprisonment on the most serious of the charges would be most appropriate.” The only “discount” or concessions Judge Farr afforded to the Applicant when sentencing him for the grievous bodily harm offence related to:
·“I will reduce that period by one month to recognise the 30 days you have spent in pre-sentence custody…” and
·“…it would be appropriate to suspend the sentence that I impose after you have served half of it.”
I find that an application of this sub-paragraph (d) to the sentences imposed for the Applicant’s offending merits the allocation of a heavy level of weight in favour of a finding that his offending has been of a very serious nature.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of non-citizen’s offending and whether there is any trend of increasing seriousness. This Applicant has, for all intents and purposes, a singular, albeit very serious, offending episode. As such, no level of frequency or trend of increasing seriousness can reasonably be found.
The following contentions appear in the Applicant’s SFIC:
“32. With respect to 13.1.1(1)(e), the Applicant does not have any prior criminal history and has not reoffended in any manner since. Consequently, there can be no doubt that he is neither a serial nor a frequent offender. While his crimes were of a serious nature from the outset, this must be tempered by the fact that it was condensed to two days, around seven weeks apart, in a total of eight and a half years of residence in Australia. They also arose in a very specific context, namely the deterioration of his marriage and stress resulting from several factors.
33. As to whether there is any trend of increasing seriousness, we accept the Applicant’s offending was serious from the outset and escalated to very serious on 5 April 2015. However, it cannot be said that he falls into the category of offenders who has a gradually evolving history of offending over a significant period. Nor has his offending evolved into either different or increasingly serious behaviour. When taking into account his behaviour subsequent to his offending while he remained in the community for three years, there has been a significant trend downwards (albeit from a high peak).”[36]
[36] Exhibit A1, page 7.
I am mindful of the Applicant’s traffic history and certain other pattern of conduct that his ex-wife/victim reported to the police in late December 2014, that, in turn, resulted in a signed or interim Protection Order on 27 December 2014, which was followed by a duly issued Protection Order on 7 January 2015. This previous conduct/offending must be approached with caution for the purposes of ascertaining allocable weight to this sub-paragraph (e). First, it cannot be safely found that a traffic history can somehow be viewed as a readily identifiable precursor or prelude to the very serious common assault/grievous bodily harm that the Applicant committed in a domestic context on 5 April 2015.
Second, while it may appear straightforward to suggest or find that the Applicant’s act of physical violence towards his ex-wife/victim on 27 December 2014 should be regarded as an indicator or precursor of his later very serious offending on 5 April 2015, I am mindful that his offending on 27 December 2014 was not the subject of any charge and subsequent conviction. It did, however, form the basis upon which an interim Protection Order was signed on that day and was then duly issued on 7 January 2015. Thus, I am cautious about finding that the Applicant’s conduct on 27 December 2014 can now be safely said to contribute towards a finding about the frequency of his offending and whether there is any trend of increasing seriousness to it. While the Applicant may escape the punitive effect of this sub-paragraph (e), as a result of his conduct on 27 December 2014, I will nevertheless refer to it in what I consider to be the chapeau of paragraph 13.1.1(1) of the Direction.
I thus find that this sub-paragraph (e) cannot be relied upon to make an adverse finding against the Applicant about the frequency of his offending and whether there is any trend of increasing seriousness behind it.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending.
To the extent the Applicant’s “offending” can be said to be repeated, any such contention should not carry much weight because the virtual entirety of his offending history emanates from the singular offending episode. Therefore, it cannot be safely said that the Applicant is responsible for “repeated offending” such that it is demonstrative of any specifically definable “cumulative effect”.
However, it is clear from the totality of the Applicant’s conduct that he has had significant difficulty with addressing domestic situations that he finds difficult or where his spouse/domestic partner directly challenges him and the way he wants things to be in that given relationship. While his conduct in December 2014 did not result in the bringing of any charge(s) or conviction(s), there can be no denying that the resulting Protection Orders (both temporary and final) were based on that conduct.
I therefore think that it is possible to glean some measure of “cumulative effect” from the totality of the Applicant’s conduct, in a specifically domestic context, leading up to his conviction and incarceration in May 2018. Stated briefly, those effects or adverse outcomes resulting from the totality of his offending and/or unlawful conduct may be broadly stated thus:
·His very serious conduct on 5 April 2015 occurred in the presence of his then-nine month old child. It can hardly be said that the commission of such serious offending with the capacity of drawing an infant child into its orbit is in any way a positive thing for that child. While we do not have any quantified or measured emotional impact levels upon that child as a result of what occurred in front of him, I nevertheless think this Applicant’s commission of such serious offending in the presence of the child does represent an adverse cumulative effect of his offending;
·Judge Farr was in no doubt that the Applicant did not demonstrate any remorse for his very serious offending committed on 5 April 2015. Noting that the Applicant took the four charges (three x common assault plus one x grievous bodily harm) to trial before judge and jury, only to be convicted by the jury on all four counts, was indicative of little or no remorse: “…adopting such a course is indicative, of course, of there being no remorse whatsoever in this matter…”
·Another discernible cumulative effect of the Applicant’s unlawful conduct is that it occurred in the context of domestic violence offending. This was not lost on Judge Farr, who noted “…the fact that these are domestic violence offences is aggravating in and of itself.” Judge Farr further noted that “…domestic violence is a scourge on society and is something that the Courts strive to impose sentences that will deter both offenders and others who might be like minded.”
oThis Tribunal has previously highlighted the gravity with which domestic violence offending us regarded with particular reference to the level of seriousness of a given applicant’s offending: “Domestic violence is a very serious matter. In no way can violence in a domestic situation by one partner against another be trivialised or downplayed. The implications of such violence on the children, broader family and friends of the parties involved can be serious and long lasting.”[37]
oIn a previous decision, I have noted the Government’s stated intention to broaden the community’s awareness of the adverse impacts of domestic violence on our community: “The Respondent has submitted that the Government also takes a very serious stance on domestic violence in particular. They pointed to the numerous and costly measures that it is currently taking to address domestic violence in Australia…that domestic and family violence has a devastating impact on the Australian community; that domestic, family or sexual violence is unacceptable in any circumstances, and that the issue must be elevated to our national consciousness.”[38]
·A starkly real cumulative effect of the Applicant’s offending comprises the injuries his offending caused his victim/ex-wife. At a general level, Judge Farr found that “The effect of this assault upon her has been substantial. She has suffered emotional, social, psychological and physical harm and adverse impacts as a consequence of your behaviour, all of which is completely understandable.” At a more specific level, Judge Farr detailed the specific injuries actually suffered by the victim: “She suffered a broken jaw as a consequence of those punches. It was a significant break. She required surgical intervention with the introduction into her bone structure of plates and screws. She suffered significant pain as a consequence of that injury. That is quite apparent,” and
·A further cumulative effect of the Applicant’s offending involved him breaching the Protection Order that had originally been made in January 2015, for which he was dealt with at the Brisbane Magistrates Court in June 2019. I accept the Applicant does not have repeated breaches of any orders, nor does he have any history of repeatedly refusing to follow a lawful direction. That said, I am mindful that he has breached the first Order lawfully imposed on him compelling him to refrain from doing a given thing, and that he did so (1) only a matter of weeks after that first Order was imposed upon him, and (2) very seriously breached the terms of that Order by virtue of his very serious offending committed on 5 April 2015.
[37] Ahori and Minister for Immigration and Border Protection [2017] AATA 601 at [53].
[38]Divane and Minister for Immigration and Border Protection (Migration) [2016] AATA 728 at [57]

I am mindful, as I mentioned earlier, that this Applicant cannot be said to be a repeat offender. As against that, I have noted the above bullet point items as cumulative effects or adverse outcomes of his offending history thus far. Given the absence of a lengthy history, I am prepared to ameliorate the level of weight I allocate to this sub-paragraph (f). I therefore find that an application of this sub-paragraph (f) to this aspect of the Applicant’s offending merits the allocation of at least some weight in favour of a finding that his offending has been of a very serious nature.
Sub-paragraph (g) of paragraph 13.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending. There is no evidence of such conduct by the Applicant, and, accordingly, this sub-paragraph (g) is not relevant to determination of this application.
Sub-paragraph (h) of paragraph 13.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. In terms of failing the character test, the Applicant only did so as a result of the nature of head custodial time he received at his sentencing episode in May 2018.
I am mindful of a reference in the Applicant’s oral evidence to him receiving a “letter from the Department of Home Affairs…in…June 2015”. According to the Applicant’s evidence, “The Department sent me a letter about cancelling my visa.”[39] The Applicant did not re-offend since receipt of this letter in June 2015. Thus, it is not possible for the Respondent to have previously warned him or otherwise taken adverse action in relation to his visa status. This sub-paragraph (h) is not relevant to determination of this application.
[39] See generally, Transcript, 1 December 2020, page 14, lines 27-32.
Sub-paragraph (i) of paragraph 13.1.1(1) of the Direction refers to a non-citizen who has committed a crime while in immigration detention in Australia. There is no evidence of such conduct by the Applicant, and, accordingly, this sub-paragraph (i) is not relevant to determination of this application.
As I have alluded to earlier, I am of the view that there is “other conduct” redolent from this Applicant’s offending history that, while not specifically referable to any of the specified sub-paragraphs to paragraph 13.1.1(1) of the Direction, is nevertheless captured by the chapeau to that paragraph. The chapeau to the factors at paragraph 13.1.1 of the Direction reads as follows:
“(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: …”
[My underlining]
There are two further aspects to the Applicant’s conduct which, although not directly captured by the nine factors at paragraph 13.1.1(1) of the Direction, nevertheless, to my mind, constitute “other conduct” relevant to an assessment of the nature and seriousness of the Applicant’s conduct.
First, while not necessarily the subject of a charge and/or conviction, it is clear that the Applicant was involved in the commission of an act of physical violence against his then-partner on 27 December 2014. As will be recalled, this is the conduct that spawned an interim Protection Order, followed by a final Protection Order on 7 January 2015. The relevant indicia of the conduct in late December 2014 comprise the following:
“The [Applicant] has gotten angry and grabbed the aggrieved by the arm quite hard and started to slap the aggrieved on the left and right side of the face. The aggrieved has attempted to defend herself and the child and held her left hand out, the [Applicant] has grabbed the [aggrieved] and put both of his hands around the aggrieved’s throat squeezing hard.
The aggrieved has felt very scared for her life and called police on 000 whilst on the phone the aggrieved was having trouble speaking to the 000 operator as her throat hurt from the respondent squeezing her neck.”[40]
[40] Exhibit R1, TB3, page 111.
Second, the Applicant has a traffic history. To be fair to him, his is certainly not the worst traffic history this Tribunal has seen in matters of this type. Between October 2012 and November 2019, his traffic history noted the following offences/events:
·Six speeding offences;
·One “fail to stop at ‘stop’ sign at intersection” offence; and
·One “fail to keep left of double continuous dividing lines” offence.
The Applicant’s driving privileges were suspended in November 2019, apparently as a result of unpaid fines. Those driving privileges were restored to him in January 2020.
Having regard to the totality of the evidence to which the abovementioned relevant sub‑paragraphs (a), (b), (d), (f) and the chapeau of paragraph 13.1.1(1) of the Direction are relevant, I am of the view that the Applicant’s offending conduct can be readily characterised as very serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
(i)paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)paragraph 13.1.2(1)(b) requires me to consider 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 reoffending.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The Respondent contends in its SFIC that:
“38. The nature of the harm if the applicant were to reoffend is very serious and could involve physical and psychological harm to members of the Australian community (including any domestic partner) with adverse consequences for public health and the justice system. Domestic violence, and the harm that would be caused to individuals such as the applicant’s partner if it were to be repeated, is so serious that any risk of reoffending is unacceptable.”[41]
[41] Exhibit R2, page 9.
In the Applicant’s SFIC, the following concession is made:
“37. It is beyond dispute that the Applicant’s crimes, if repeated, would cause a victim, and possibly her family, significant harm. The impact on [the Applicant’s ex-wife] was canvassed by the sentencing judge…The Applicant has appropriately conceded these impacts…”[42]
[42] Exhibit A1, page 8
In his own statement, the Applicant conditionally acknowledges the harm he inflicted upon his ex-wife/victim by (1) suggesting there was provocative and instigating behaviour on her part, and (2) purporting to express extreme regret and remorse:
“31. She did not say anything and tried to leave. I got angry and tried to stop her by taking the keys. She slapped me across the cheek because of this, and then matters escalated from there.
32. I am remorseful of the pain and harm my ex-partner endured physically and emotionally. I am extremely regretful and remorseful. The whole incident took maybe five minutes from the verbal arguing which escalated to violence and ultimately her injuries. The whole argument ended straight after she got hurt. It was not ongoing or ignorant of harm, but as soon as I realised she had been hurt I stopped at once.”[43]
[43] Exhibit G1, G20, page 279.
The sentencing remarks of Judge Farr leave us in no doubt about what His Honour thought about the nature of the Applicant’s offending. It is not a stretch to infer that, having regard to the nature of the harm inflicted on the victim, His Honour imposed the sentence he did for the specific purpose of deterring the Applicant from re-committing any similar kind of offending episode. As noted earlier, Judge Farr was in no doubt that the effect of the Applicant’s very violent conduct on his victim “has been substantial.” His Honour sentenced the Applicant on the basis that the victim has “suffered emotional, social, psychological and physical harm and adverse impacts as a result of your behaviour…” The critical point is that His Honour sentenced the Applicant on the specific basis of deterring the re-commission of any such conduct in future, either by this Applicant or other potential offenders:
“…domestic violence is a scourge on society and is something that the Courts strive to impose sentences that will deter both offenders and others who might be like minded. General deterrence is a particularly significant consideration in a matter such as this. So too, though, are issues such as appropriate and just punishment, public denunciation and, I suspect to a lesser degree, at least in so far as the present circumstances are concerned, specific deterrence, although it does seems that anger management issues are a problem for you on all of the evidence before this Court.”[44]
[44] Ibid, G6, page 35.
Paragraph 6.3(4) of the Direction stipulates that decision-makers should be guided by the principle that criminal offending 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. I am of the view that any such identical offending (or even closely similar offending) would be unacceptable to the Australian community. Put frankly, there is no way of credibly suggesting that the Applicant could re-commit the types of offences for which he was incarcerated to some kind of lighter of softer level. Physical violence – especially that perpetrated on vulnerable women in a domestic context – is physical violence simpliciter. There can be no acceptable degrees of the severity of any such conduct. On the basis of this paragraph 6.3(4), I think both the Applicant’s abovementioned concession and the Respondent’s abovementioned submissions (about the nature of harm from any future offending) are correctly made.
I am of the view, and I find, that were the Applicant to re-offend in an identical or similar way, there is a convincing inevitability that his offending will result in (to quote His Honour Judge Farr) very “…substantial…emotional, social, psychological and physical harm and adverse impacts as a consequence of [such] behaviour.” I am of the further view that were the Applicant to re-offend in an identical or similar way, there could be, quite conceivably, potentially catastrophic harm to a victim. It is therefore reasonable and safe to find that the potential consequences flowing from further similar or identical offending by this Applicant would be very serious.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant’s written submissions
The Applicant’s SFIC considers that the issue of recidivism is a pivotal consideration for determination of the instant application:
“38. The likelihood of recidivism is central to this case (para 13.1.2(1)(a)). As the Direction is ultimately minded towards the “unacceptability” of a risk of harm, the relevant test is whether any risk posed by him is at an unacceptable level (and not whether there is no risk at all). This approach is consistent with the principles enunciated in 6.2(1) and 13.3(1) of the Direction.”[45]
[45] Exhibit A1, page 8.
Certain salient factors are identified and discussed in the Applicant’s SFIC, which are propounded to suggest a low and not unacceptable risk of re-offending in this Applicant, whether for similar or other criminal conduct. Six such bases are identified:
“a) His crimes occurred in a very specific, interpersonal context that is highly unlikely to occur again in future;
b) His offending behaviour was uncharacteristic and he lacks any disorders or other tendencies that are known to increase a tendency towards recidivism;
c) his risk has been tested in a community setting over three years in a low-level of supervision, during which he did not offend or engage in any inappropriate behaviour;
d) He has engaged in relevant rehabilitation that has increased his insight into the triggers of his offending behaviour;
e) Risk assessments revealing a low risk of recidivism; and
f) The protective factors in place that mitigate his risk factors and more generally promote his return to a law-abiding lifestyle.”[46]
[46] Ibid.
First, in terms of the context of the Applicant’s offending, it is, for all intents and purposes, contended that “once his marriage [to his victim/ex-wife] ended, so did his offending.”[47] In my view, this is an unacceptably simplistic approach to addressing the issue of the Applicant’s risk of recidivism. To my mind, it is not enough to say that the Applicant will no longer offend because he is no longer part of the marital/domestic situation in which the offending occurred. The reality is that he failed to address and adequately deal with relationship stressors that arose in his previous marital relationship. The consequences of that failure are redolent in the circumstances of his offending. The reason this contention falls short is because it is based on the false premise that he will no longer offend because he is no longer connected to his former wife. The correct test or assessment can only be made when the Applicant has again been exposed to a new domestic relationship involving emotional and other investment on his part, which then gets tested via the superimposition of the inevitable relationship stressors that affect every interpersonal relationship. In this paradigm, the Applicant’s propensity to fail to control his impulse towards violence remains to be tested.
[47] Ibid, page 9, paragraph [43].
Second, it is propounded on behalf of the Applicant that his very violent conduct towards his ex-wife in April 2015 is uncharacteristic of the totality of his conduct in this country. Reference is made to those who speak of him as a “hard-working and kind individual who is a devoted family man”.[48] The uncharacteristic nature of his violence upon his ex-wife/victim is said to be that of “a first-time offender.” In support of these contended themes, it is said that the Applicant does not have a history of substance misuse, nor has he had negative or pro-criminal peer associations. It is also said that his offending is uncharacteristic because “the Applicant’s offending did not result from any psychological disorder. Nor does he present with any clinical or cognitive impairments.”[49] To my mind, the absence of these elements renders the Applicant’s offending to date even more concerning, because no clinical explanation or basis is provided for his predisposition to physically impose himself in circumstances of relationship difficulty. I am of the belief that Judge Farr held the same view because His Honour was particularly cognisant of the significant violence inherent in the unlawful conduct and of the need to sentence the Applicant with reference to both general and specific deterrence. Judge Farr was of the view that there were clinical or at least symptomatic issues around the Applicant’s failure to control himself when His Honour observed that “…it does seem that anger management issues are a real problem for you on all the evidence before this Court.”
[48] Ibid, paragraph [46].
[49] Ibid, page 10, paragraph [49].
Third, it is propounded that the Applicant’s propensity to further violently offend has, in fact, been tested in a community setting. The basis of this contention is that the Applicant was released on Supreme Court bail for a period of approximately three years and did not re-offend during that period. It is said that as a result of his satisfactory compliance with bail conditions granted to him “It necessarily follows that there has been substantial testing of his risk in the community.”[50] This contention is sought to be supported by an observation that there were external stressors upon the Applicant’s life during this three year bail period compelling him to “struggle…with the loss of his marriage”[51] as well as initial deprivation of contact rights for him to spend time with his infant son. It is also said that he experienced the stressor of personal debts during this three year period as well.
[50] Ibid, paragraph [51].
[51] Ibid, paragraph [52].
To my mind, the best that can be said about the Applicant during this three year period (i.e. while on bail) was that he did succeed in getting on with his life such that he (1) completed tertiary studies, (2) obtained full time employment at Griffith University, (3) maintained his family relationships and (4) provided a level of care and support to his ailing parents. It is also to the Applicant’s credit that he did not become involved in negative or troublesome conduct either during his time in criminal custody or to this point of his time in immigration detention.
However, to suggest that the Applicant’s risk of recidivism has been adequately “tested” in a community setting while on bail for a pre-sentencing period of three years is, respectfully, to miss the point. It was not external stressors such as the obtaining of academic qualifications, the looking after of ailing parents and/or other family members that predisposed or caused this Applicant to very seriously offend in a domestic context. Rather, his offending resulted from stressors within a domestic context. The real test for this Applicant is for him to be returned to the community, to commence a new interpersonal relationship to which he feels wholly and totally committed, and to then experience stressors from within that relationship that directly challenge his paternalistic views of his role therein.
Fourth, we are told that the Applicant is at a low risk of re-offending because of his engagement in relevant rehabilitation that has increased his insight into specific factors or triggers causative of his offending behaviour. Specifically, we are referred to the observations and findings of the psychologists comprising Ms Shelley Jacks in a report dated 25 November 2016 and Dr Jacqui Yoxall in her respective reports dated 8 January 2020 and 6 November 2020. It should be noted that the report of Ms Jacks[52] was prepared for solicitors previously acting for the Applicant with reference to the four criminal charges that eventually came before His Honour Judge Farr for sentencing in May 2018. Both of Dr Yoxall’s reports were prepared for the purposes of the instant application. For reasons I will recount later in this discussion, I am of the view that neither of the Ms Jacks’ or Dr Yoxall’s reports can be safely relied upon to reach a conclusion that the Applicant’s stated or assessed risk of further offending can be said to be at a level that would be acceptable to the Australian community.
[52] Exhibit A6.
Fifth, it is contended that “the sentencing judge made no express conclusions in relation to the Applicant’s risk of recidivism. This is perhaps unsurprising given it was his first sentencing episode and the Court could hardly be expected to engage in any predictive exercise about his risk.”[53] I will later in these Reasons discuss the two separate testing methodologies performed by Dr Yoxall upon the Applicant in order to form some kind of view about his level of recidivism. Suffice it to say that Dr Yoxall’s findings were predicated on the following observation:
“8. Mr Ali’s risk of reoffending may be increased if he is faced with events which overwhelm him and cause him significant stress (for example, further loss; a breakdown in key relationships or loss of employment) and is unable to engage in effective problem solving and critical decision making. Engagement in the noted interventions will support him to utilize health strategies to manage his emotions and relationships if such events were to arise.”[54]
[53] Exhibit A1, page 12, paragraph [58].
[54] Exhibit G1, G18, page 262.

Sub-paragraph (h) of paragraph 13.2(4) of the Direction looks for evidence that the child/ren have suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct. I have made certain comments about the Applicant’s violent conduct towards his ex-wife in the presence of Child A. In the absence of independent and expert evidence detailing any physical or emotional trauma actually suffered by Child A as a result of those episodes, I am of the view that this sub-paragraph (h) is of no weight and is not determinative of any finding about this Primary Consideration B.
Conclusion: Primary Consideration B
Having regard to:
(a)the evidence of the Applicant and his lay witnesses, which speaks of a loving relationship between him and all of the relevant children, and that such relationship would most likely be resumed were the Applicant to be returned to their lives in a physical sense;
(b)the conditional extent to which the Applicant will be able to resume any expanded parental role with Child A, given (1) the mother’s evident resistance towards any such expanded orders and (2) the yet-to-be-determined outcome of the contested pending Family Court proceeding;
(c)the significantly interrupted and presently almost non-existent parental role the Applicant has played in the lives of the children since May 2018 when he was taken into criminal custody, then into immigration detention;
(d)the reality that Child A is primarily cared for by his biological mother, and the Applicant’s two nieces and nephew are primarily (and undeniably) parented by their biological parents;
(e)while we have the unilaterally stated views of Dr Yoxall, there is an absence of any independent or expert evidence about the adverse impact upon the children as a result of the Applicant’s current or future absence from their lives provided by Dr Yoxall (or other clinicians) following an examination of any of the four children;
(f)the Applicant’s capacity to maintain contact with the four relevant children via electronic/digital means from Fiji or elsewhere;
(g)the limited written and oral concessions made by and on behalf of the Respondent about weight allocable to this Primary Consideration B; and
(h)the moderate level of weight I have attributed to factors (a) (b), (c), (d) and (e) of paragraph 13.2(4) of the Direction;
- I am of the view that the best interests of the four relevant minor children in Australia does weigh moderately in favour of revocation of the decision to cancel the subject visa. I qualify this finding by saying that the weight attributable to this Primary Consideration B is of a moderate level only and does not, in any way, outweigh the heavy weight I have attributed to Primary Consideration A.
Primary Consideration C: The Expectations of the Australian Community
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1)[173] of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to (1) the Government’s views in this respect and (2) any overarching principles and guidance provided by the Direction.[174] Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an Applicant’s offending is such that the Australian community would expect that he/she should not hold a visa.
[173] The terms of paragraph 13.3(1) of the new Direction 79 are identical to the terms of paragraph 13.3(1) of the now revoked Direction 65.
[174] See the Direction, paragraphs 6.2(1) and 6.3(1)-(7).
Factual circumstances relevant to this Primary Consideration C
In assessing the weight attributable to this Primary Consideration C, it is necessary to have regard to the following circumstances arising from this matter’s factual matrix:
·the Applicant arrived in Australia (on a final basis) in June 2013, at the age of approximately 30 years.[175] He is now 37 years of age;
[175] I have earlier recounted that he first arrived in Australia when he was 22 years of age, but there followed, between 2005 and June 2013, lengthy periods of absence from Australia.
·he has one minor biological child in Australia. He has, since May 2018, had minimal contact with that child, who is primarily cared for by his biological mother;
·he was first sentenced in Australia in May 2018, approximately five years after his final arrival from Fiji;
·post-2005, the Applicant’s visits to Australia occurred by way of tourist-type visas. In 2011, the Applicant took advantage of Australia’s higher education system and came to Australia on a student visa. He then met an Australian citizen in Australia and was granted a temporary partner visa in December 2014;
·while not frequent, I have found that his offending, committed exclusively in a domestic context, has been very serious. The sole victim of this very serious offending has been the Applicant’s ex-wife and mother of his biological child, Child A;
·I have found that, were it to be repeated, the Applicant’s offending could realistically have the potential of very serious or even catastrophic harm to members of the Australian community;
·his offending derives from unresolved issues within his psychopathology, most likely, an incapacity to control an impulsivity towards the imposition of violent resolutions towards difficult domestic situations with which he may be confronted;
·I acknowledge and do not necessarily cavil with the substantive findings of Dr Yoxall about the Applicant’s future risk of re-offending. Dr Yoxall performed the SARA and LSI-R testing methodologies on the Applicant and found the Applicant’s risk of recidivism was in the “low” risk category;
·I also acknowledge (with caution – for the reasons I have earlier outlined) the now four-year-old report of Ms Shelley Jacks, who (1) noted the Applicant responded well to treatment but who also noted that there were only seven sessions between her and the Applicant and that there “were a number of reasons why he may have felt unable to be completely open about his behaviour”, (2) believed “there are a number of outstanding treatment areas,” and (3) noted the Applicant “will benefit from intensive intervention over a number of months in order to reduce his risk of re-offending in the future.”;
·his offending has seen him removed from the Australian community on a continuous basis, be it in the form of criminal custody or immigration detention, since May 2018;
·for the totality of his offending in this country, the sentencing courts have seen fit to impose total cumulative custodial terms amounting to approximately five years and eight months; and
·my consequential finding that (1) the Applicant’s offending conduct to date is very serious, and (2) having regard to, inter alia, the conclusions of Dr Yoxall (and, to an extent, Ms Jacks) about the Applicant being at a low risk of re-offending, I nevertheless think there is a convincing and sufficiently unresolved and untested likelihood that he will engage in further very serious conduct (in a similar realm to that he has already committed) if returned to the Australian community.
The Evolution of the Australian Community’s “Expectations”
In 2003, Deputy President Block of this Tribunal said that in considering weight attributable to this Primary Consideration C, one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[176]
[176] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].
In 2017, Deputy President Forgie of this Tribunal considered that paragraph 13.3(1) of the Direction leads a decision-maker to:[177]
“102. …conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens 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 character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…”
[My underlining]
[177] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
In Afu v Minister for Home Affairs (“Afu”),[178] Justice Bromwich said:
“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…The Tribunal was required to give effect to those norms which is precisely what it did.”
[My underlining]
[178] [2018] FCA 1311 at [85].
In FYBR v Minister for Home Affairs (“FYBR”),[179] Justice Perry observed that:
“It follows, in line with the authorities, that cl 11.3 of Direction 65[180] 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...” [181]
[My underlining]
[179] [2019] FCA 500.
[180] Note: FYBR was concerned with a visa refusal. This means the relevant paragraph relating to expectations of the Australian community was paragraph 11.3 [et seq] of the Direction. The instant case is, of course, a matter relating to the non-revocation of a mandatory cancellation decision. In those latter circumstances, the relevant paragraph is 13.3 [et seq] of the Direction. Further, “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 13.3 for non-revocation matters.
[181] FYBR, paragraph [42] (Perry J).
FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld FYBR, confirming Justice Perry’s reasons and approach to the expectations of the Australian Community.[182]
[182] See FYBR v Minister for Home Affairs [2019] FCAFC 185.
Thus, the Full Court’s decision, along with the existing authority of Afu establishes that:
(a)the “expectations of the Australian community” cannot be measured or determined as in the case of a provable fact. It is an assessment of community values made on behalf of that community.[183]
(b)it is not for the Tribunal to determine for itself what such “expectations” are by reference to the Applicant’s circumstances or evidence about those expectations;[184]
(c)the Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks are the “expectations of the Australian community”, and the Tribunal should have due regard of those statements, if made;[185]
(d)in assessing the weight attributable to this Primary Consideration C, decision makers can have regard to the principles in paragraph 6.3 of the Direction, in particular, sub-paragraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision maker.[186]
[183] Afu at paragraph [85].
[184] FYBR at paragraph [42].
[185] FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[186] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).
Analysis – Allocation of Weight to this Primary Consideration C
The Applicant does have a work history in this country. He speaks of an involvement in the Australian workforce as follows:
“2011-2015: Air conditioner technician at AI Airconditioning
2015-2016: Flooring Specialist at Masters Home Improvements
2017-2018: Systems Analyst at Griffith University]”[187]
[187] Exhibit G1, G15, page 121.
I have earlier mentioned the Applicant’s impressive achievement that, whilst on bail during the approximate period of April 2015 to May 2018, he completed a Bachelor of Information Technology degree at Griffith University and commenced working full time at that university.
The totality of the Applicant’s very serious and unlawful conduct towards his ex-wife/victim (committed in the presence of their infant child) has surely breached the expectations of the Australian community. His offending has been very serious. It is clearly demonstrative of his failure to abide by the laws of Australia, particularly in the context of a domestic relationship. In ascertaining the weight attributable to this Primary Consideration C, I take into account the following factors and/or findings:
(i)the Applicant has made positive contributions to the Australian community and has largely paid his own way in this country;[188]
(ii)the Applicant has lived in the mainstream Australian community (1) on an intermittent basis for approximately 40 months between 2005 and 2013, and (2) on a permanent basis between 2013 to May 2018;[189]
(iii)the removal of the Applicant may have an adverse impact on the four relevant minor children in Australia;[190]
(iv)the very serious nature of the Applicant’s offending to date;
(v)while I do not cavil with the findings of Dr Yoxall (and, to a more cautious extent, Ms Jacks) about the Applicant’s risk of re-offending, I have found that the Applicant’s risk of recidivism upon any return to the Australian community remains unacceptable; and
(vi)my assessment of the quite significant risk of substantial and even catastrophic harm to the Australian community were he to re-offend.
[188] The Direction, paragraph 6.3(7).
[189] The Direction, paragraph 6.3(5).
[190] Ibid, paragraph 6.3(7).
Conclusion: Primary Consideration C
I am of the view that the above factors, read as a whole in the context of this case, militate in favour of not revoking the cancellation of the Applicant’s visa. I accordingly find that this Primary Consideration C is of heavy weight in favour of affirming the non-revocation decision under review.
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
With specific reference to this Other Consideration (a), the Applicant’s contention is as follows: “95. We submit that this matter is not relevant to our client’s circumstances.”[191]
[191] Exhibit G1, G15, page 133.
Likewise, the Respondent contends thus:
“57. The applicant acknowledged in his submissions that non-refoulement obligations and Australia’s business interests are not relevant. He also acknowledged there is no evidence going to the impact on victims.”[192]
[192] Exhibit R2, page 15.
The Applicant has not claimed to fear harm if returned to Fiji. None of the evidence suggests a risk of harm in those circumstances. This consideration is not relevant to the determination of this application.
(b) Strength, nature and duration of ties
There is the following limited concession made by the Respondent:
“59. Although the Minister accepts it would be open for the Tribunal to place weight on this consideration in favour of the applicant, this is a case that engages principle 6.3(4) of Direction 79 in that in the applicant’s circumstances, his criminal offending or other conduct, and the harm that would be caused if it were to be repeated, is so serious, that any risk of similar conduct in the future is unacceptable.”[193]
[193] Exhibit R2, page 16.
The Applicant is now 37 years old. He came to Australia on a temporary basis in 2005 and on a permanent basis in 2013. He has thus spent the majority of his life in Fiji. His offending history occurred in the early part of 2015, approximately two years after his final arrival in Australia. In accordance with paragraph 14.2(1)(a)(i) of the Direction, less weight should be given to this Other Consideration (b) in those circumstances. As against that, there is convincing evidence that he has made positive contributions to Australia via his strong employment and educational history in this country. As has been noted on his behalf, there can be no question that he has made positive strides in his life in Australia , both in the realm of earning income via remunerative employment and in the realm of bettering himself by completing a bachelor of information technology degree at Griffith University.[194] These elements do attract some weight in his favour pursuant to paragraph 14.2(1)(a)(ii) of the Direction.
[194] See Exhibit G1, G15, page 122, paragraph [22].
Greater (but not determinative) weight in favour of the Applicant pursuant to this Other Consideration (b) can be found in paragraph 14.2(1)(b). In Australia, in addition to his biological son, the Applicant has a father, stepmother, brother, an aunt and uncle, two cousins, two nieces and a nephew in Australia.[195] It is clear that his immediate and extended family in Australia would be impacted by the Applicant’s removal to Fiji. As against that, the Applicant does have two sisters in Fiji. [196] For the purposes of assessing allocable weight to this Other Consideration (b), I am prepared to accept that the Applicant’s immediate and extended family members in Australia are either Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain here.
[195] Exhibit G1, G11, page 64.
[196] Ibid.
The evidence of the Applicant at the hearing largely mirrored written contentions made on his behalf:
“84. The likely impact of the Applicant’s removal on his father and stepmother will be immediate and severe. Their evidence is that they are extremely close to the Applicant, who has been their primary support since the onset of their health issues in recent years. Their health and age are such that they cannot undertake a relocation overseas to accompany him or cope with the practical difficulties posed by long-distance travel to visit him. The reports of their mental health social worker, Ms Kholoud Abdulla, reveal their health has deteriorated over the past year and they now require a full-time carer. Given the Applicant’s intention to reside with them, and that he previously performed carer-type tasks for them on a daily basis, he is well-placed to care for his parents.”[197]
[197] Exhibit A1, page 18.
I have had regard to the written statements of the Applicant’s father, his stepmother, and that of the Applicant himself. To my mind, those statements are relatively sparse in terms of specific assistance rendered by the Applicant to either or both of his father and/or stepmother. This evidentiary position was augmented by, in particular, the oral evidence of the Applicant’s stepmother at the hearing. She spoke of having a carer and, indeed, there was a slight delay in her capacity to provide her oral evidence because she told the Tribunal “my carer’s here.” It is important for the purposes of this Other Consideration (b) to understand and define the extent of the care required by the Applicant’s father and/or stepmother.

It is notable that the nature of the care described in the abovementioned statements of the father, stepmother and Applicant contrasts sharply with the care received by the Applicant’s stepmother via her paid carer. As I understood the stepmother’s evidence, the carer attends her house every single day, stays for a couple of hours and assists her with basic domestic items such as bathing/showering three times a week. The paid carer also takes the stepmother into the community once per week. This level of paid care-based support is something that does not appear in any of the abovementioned three statements. This is perhaps consistent with the reality that the Applicant’s brother is not in a position to provide any significant level of domestic support to the father/stepmother, because he is otherwise busy operating his air conditioning business and attending to the needs of his family. At best, I will accept that the Applicant has provided a certain level of care and support to his father and/or stepmother, but that such care and support has been ancillary and otherwise secondary to the care and support provided by the paid carers.
There can be little or no argument with the proposition that the Applicant’s abovementioned immediate and extended family members in Australia will experience a level of emotional impact and difficulty upon his removal. Insofar as the father and stepmother are concerned, it should also be noted that the only time the Applicant ever spent an extended period of time at their residence was for the period he was subject to bail conditions requiring him to reside at that address. It is entirely reasonable to presume that, were he to be returned to the Australian community, the Applicant would, after a relatively brief re-settlement period at their home, eventually find his own lodgings, especially in circumstances where he re-partnered.
With specific reference to this paragraph 14.2(1)(b), I find that the strength, nature and duration of the Applicant’s relationships with members of the Australian community, most particularly, his father and stepmother, are strong and palpable. I find that this paragraph 14.2(1)(b) weighs in favour of a finding to restore the Applicant’s visa status to remain in Australia.
Accordingly, having regard to the totality of evidence relevant to this Other Consideration (b), I am of the view that it weighs moderately in favour of revocation, but is outweighed by Primary Considerations A and C, which favour non-revocation.
(c) Impact on Australian business interests
There is no evidence before me that the cancellation of the Applicant’s visa would have an impact on Australian business interests. This consideration is not relevant to determination of this application.
(d) Impact on victims
The Respondent has not called any evidence relating to the impact that the Applicant’s continued presence in Australia would have on the victim of his offending, specifically, his ex-wife. No doubt, his former wife, who was on the receiving end of his very serious and violent conduct, may have had something to say about the impact of the Applicant’s continued presence in Australia upon her.
However, in the absence of such evidence, it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact of the Applicant’s continued presence in Australia on his victim. Accordingly, I cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s visa and is thus neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is a man of 37 years of age. In response to question in his “Personal Circumstances Form” about “Do you have any diagnosed medical or psychological conditions?” the Applicant ticked the “No” box.[198] He did not list any medication that he was taking. Similarly, there is no reference to any treating clinician or therapist for any health difficulty. I accept that medical care and governmental social support in Fiji may not be at the same level as that available to the Applicant in Australia. However, he will have access to those things in the context of what is generally available to other citizens of Fiji.[199] Thus, the Applicant’s age and state of health are not factors that attract any measure of weight to this Other Consideration (e).
[198] Exhibit G1, G11, page 67; see also Section 14.5(1)(a) of the Direction.
[199] Section 14.5(1)(c) of the Direction.
The Applicant lived approximately the first two-thirds of his life in Fiji. I note there are no significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in Fiji.[200] As a citizen of that country, he will have access to social, medical and/or economic support in the context of what is generally available to other citizens of Fiji.
[200] Section 14.5(1)(b) of the Direction.
In his material, the Applicant speaks of adverse outcomes were he to be returned to Fiji as follows:
“Do you have any concerns or fears about what would happen to you on return to your country of citizenship?
[The Applicant ticked the ‘Yes’ box]
I will lose everything, I would not know how to start my life again. The conviction/punishment will be for whole of my lifetime. This is how I feel and it’s truly very fearful.” [201]
[201] Exhibit G1, G11, page 67.
I have also had regard to the Applicant’s written statement in the material. There is a heading in that statement bearing the words “Impediments to Returning to Fiji”. The difficulty with utilising this portion of the Applicant’s written statement for the purposes of ascertaining allocable weight pursuant to this Other Consideration (e) is that the Applicant has predicated his comments around being deprived of the opportunity to support his biological child (Child A) in the event of his removal to Fiji.[202] The orientation of the Applicant’s comments in his written statement are, to my mind, more relevant and applicable to a discussion around Primary Consideration B, which involves the best interests of minor children in Australia. None of the points the Applicant has raised in his written statement go to the three factors specified in paragraph 14.5(1) of the Direction.
[202] See Exhibit G1, G20, pages 284-285, paragraphs [99]-[106] (inclusive).
During his oral evidence, the Applicant’s father confirmed that he has two daughters residing in Fiji, one residing in New Zealand and a further daughter residing in the United Kingdom. There was reference in the oral evidence of the father of a planned trip back to Fiji. The evidence disclosed a level of close connectivity between the Applicant’s father and one of his daughters because he spoke of that particular daughter assisting him with preparation and completion of the statutory declaration that he has provided for the instant application. It is therefore reasonable to infer that the Applicant maintains current and live relationships with his sisters who reside in other countries.
In oral submissions made on behalf of the Applicant, the following exchange occurred between me and the Applicant’s representative:
“MS WHITE: There’s also the matter of the extent to which he could gain employment in Fiji. Now, he has a strong work history in Australia. He has qualifications. The only aspect I’d raise here is that we do have economic hardship of course caused by COVID globally. That point has been made a number of times. The only contrast I’d make here is that fine, I think there’s the potential he could get a job. The applicant has already said he’d survive. He said that. That was his evidence again very frankly put but compare that to what he has in Australia which is immediate employment that he has already worked in before, there’s also the contacts he has to pursue employment in the vocation that he wants to pursue.
SENIOR MEMBER: But Ms White, the assessment of weight allocable to other consideration E is not a comparative exercise I don’t think. It’s an examination and an evaluation of what problems he’s going to have if he is – where he to be removed to Fiji. So his age and state of health is good.
MS WHITE: M’mm hmm.
…
SENIOR MEMBER: And to extent of impediments, they’re in favour of your client, but not, in my respectful due, not determinatively so.
MS WHITE: I agree with that, Senior Member. Yes, and I think that comparative exercise, perhaps, that is more relevant in a context of other consideration (b) than an extent of impediments. I do take your point there. ”[203]
[203] Transcript, 4 December 2020, pages 150-151. Note: there are no line numbers in this portion of the Transcript.
In his own oral evidence, the Applicant said the following:
“MR HAWKER: …If you have to go back to Fiji…have you had a mature grown up conversation with anyone in your family about what your plans are to establish yourself back in Fiji?
WITNESS: Sir, I have to start work somewhere. I have to start work. That’s - I don’t have anything to get back to, but if that was the case, I have to start somewhere, like, I don’t know, I - but it’s not that - it’s not that I’m saying I’ll - I won’t be able to survive. It’s going to be difficult, but just living without your family I don’t think that is a life which is of value if you live without your family.
…
MR HAWKER: Yes. So I take it the response is you haven’t started that planning process?
WITNESS: Sir, it will - I mean, honestly I’m - if I have to go back it will - like, I will survive. That’s how I can put it.”[204]
[204] Transcript, 1 December 2020, page 50, lines 2-11 and 27-29.
As referred to earlier, the Applicant has a strong educational and employment history in Australia. There is little evidence in the material to cavil with the contention that the Applicant would be able to find similar work in either the air conditioning or information technology fields upon his return to Fiji.
Accordingly, while I accept the Applicant may face some difficulty in re-establishing himself in Fiji, this factor would present as a short-term hardship and would not preclude his successful re-settlement there.
Having regard to the totality of the evidence, I am thus of the view that this Other Consideration (e) is of moderate weight to the determination of this application.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C, which each weigh heavily in favour of non-revocation. The application of the Other Considerations in the present matter can be summarised as follows:
·international non-refoulement obligations: not relevant;
·strength, nature and duration of ties: moderate weight;
·impact on Australian business interests: not relevant;
·impact on victims: neutral; and
·extent of impediments if removed: moderate weight.
Conclusion
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs heavily in favour of non-revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·Primary Consideration B weighs moderately in favour of revocation;
·I have outlined the weight attributable to the Other Considerations. I do not consider that any of them, even when combined with each other or with Primary Consideration B, outweigh the heavy and determinative combined weight I have attributed to Primary Considerations A and C; and
·a holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
Decision
The decision under review is affirmed.

I certify that the preceding 297 (two-hundred and ninety-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

........................[sgd]................................................
Associate
Dated: 24 December 2020

Date of hearing: 1, 2 and 4 December 2020

Advocate for the Applicant:
Ms Caitlin White, Associate

Solicitors for the Applicant:

Advocate for the Respondent:

Solicitors for the Respondent:

Fisher Dore Lawyers

Mr Matthew Hawker, Partner

Sparke Helmore Lawyers

Annexure “A”

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (paged 1 to 369)

-

6 October 2020

R1

Respondent’s Tender Bundle (paged 1 to 201)

-

18 November 2020

R2

Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 17)

18 November 2020

18 November 2020

R3

Supplementary Tender Bundle (paged 1 to 22)

-`

27 November 2020

A1

Applicant’s Statement of Facts, Issues and Contentions (paged 1 to 19)

30 October 2020

30 October 2020

A2

Reports of Ms Kholoud Abdulla (3 x one page letters)

-

30 October 2020

A3

Statutory Declaration of Azad Imran Ali (paged 2 to 5)

4 November 2020

7 November 2020

A4

Statutory Declaration of Asgar Ali (paged 6 to 9)

4 November 2020

7 November 2020

A5

Statutory Declaration of Marleine Williams Ali

(paged 10 to 13)

4 November 2020

7 November 2020

A6

Report of Ms Shelley Jacks, psychologist (paged 14 to 23)

25 November 2020

7 November 2020

A7

Psychological Report of Dr Jacqui Yoxall, psychologist

(pages 24 to 54)

6 November 2020

7 November 2020

A8

Applicant’s Reply (3 pages)

25 November 2020

25 November 2020

A9

Protection Order (2 pages)

11 November 2015

26 November 2020

A10

Letter from Aged Care Provider (1 page)

29 September 2020

26 November 2020

A11

Transcript of Proceedings (6 pages)

21 June 2019

26 November 2020

A12

Certificate of Competition in the AVERT Family violence Basics course online with the Australian Institute of Social Relations

13 November 2020

26 November 2020

Annexure “B”

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (paged 1 to 369)	-	6 October 2020
R1	Respondent’s Tender Bundle (paged 1 to 201)	-	18 November 2020
R2	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 17)	18 November 2020	18 November 2020
R3	Supplementary Tender Bundle (paged 1 to 22)	-`	27 November 2020
A1	Applicant’s Statement of Facts, Issues and Contentions (paged 1 to 19)	30 October 2020	30 October 2020
A2	Reports of Ms Kholoud Abdulla (3 x one page letters)	-	30 October 2020
A3	Statutory Declaration of Azad Imran Ali (paged 2 to 5)	4 November 2020	7 November 2020
A4	Statutory Declaration of Asgar Ali (paged 6 to 9)	4 November 2020	7 November 2020
A5	Statutory Declaration of Marleine Williams Ali (paged 10 to 13)	4 November 2020	7 November 2020
A6	Report of Ms Shelley Jacks, psychologist (paged 14 to 23)	25 November 2020	7 November 2020
A7	Psychological Report of Dr Jacqui Yoxall, psychologist (pages 24 to 54)	6 November 2020	7 November 2020
A8	Applicant’s Reply (3 pages)	25 November 2020	25 November 2020
A9	Protection Order (2 pages)	11 November 2015	26 November 2020
A10	Letter from Aged Care Provider (1 page)	29 September 2020	26 November 2020
A11	Transcript of Proceedings (6 pages)	21 June 2019	26 November 2020
A12	Certificate of Competition in the AVERT Family violence Basics course online with the Australian Institute of Social Relations	13 November 2020	26 November 2020

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2020/5659

General Division )

Re: Aktar Irfan Ali
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent
DECISION
TRIBUNAL:              Senior Member Theodore Tavoularis
DATE:   9 December 2020
PLACE:                    Brisbane
DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 15 September 2020 to not revoke the cancellation of the Applicant’s visa.

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

.....................................[sgd]...........................
Senior Member Theodore Tavoularis

Court	Date	Offence	Result
Brisbane District Court 4.	23/5/2018 5.	Common assault – domestic violence offence (committed on 5 April 2015)[5]	Conviction recorded Sentenced to a term of imprisonment for six months This custodial term ordered to be served concurrently with other custodial terms imposed on that date
		Common assault – domestic violence offence (committed on 5 April 2015) [6]	Conviction recorded Sentenced to a term of imprisonment for 12 months This custodial term ordered to be served concurrently with other custodial terms imposed on that date
		Common assault – domestic violence offence (committed on 5 April 2015)[7]	Conviction recorded Sentenced to a term of imprisonment for 15 months This custodial term ordered to be served concurrently with other custodial terms imposed on that date
		Grievous Bodily Harm – domestic violence offence (committed on 5 April 2015)[8]	Conviction recorded Sentenced to a term of imprisonment for two years and 11 months, to be suspended for three years after serving 17 months in actual custody This custodial term ordered to be served concurrently with other custodial terms imposed on that date
Brisbane Magistrates Court	21/6/2019	Contravention of domestic violence order (committed on 17 February 2015)[9]	On all charges, conviction recorded, not further punished