Bennett and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2021] AATA 1462

Bennett and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1462 (27 April 2021)

Division:GENERAL DIVISION

File Number:          2021/0747

Re:Cameron Bennett

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member Theodore Tavoularis 

Date:27 April 2021

Date of written reasons:        25 May 2021

Place:Brisbane

The decision under review is affirmed.

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

Senior Member Theodore Tavoularis

Catchwords

MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) 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. 90 – decision under review affirmed.

Legislation

Acts Interpretation Act 1901 (Cth)

Criminal Code Act 1899 (Qld)
Domestic and Family Violence Protection Act 2012 (Qld)
Family Law Act 1975 (Cth)

Migration Act 1958 (Cth)

Cases

FYBR v Minister for Home Affairs [2019] FCAFC 185

Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Jagroop and Minister for Immigration and Border Protection (2016) 241 FCR 461
JNMK v Minister for Home Affairs [2019] FCA 1758
Kalm v Administrative Appeals Tribunal [2013] FCA 890
Khalil v Minister for Home Affairs [2019] FCAFC 151
Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548
Mehta v Minister for Immigration and Border Protection (2015) 238 FCR 439
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Nguyen and Minister for Immigration and Border Protection [2018] AATA 4664
SZRLY v Minister for Immigration and Citizenship [2012] FCA 1459
Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81

Tara Euna and Minister for Immigration and Border Protection [2016] AATA 301

Secondary Materials

Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

Decision

Catchwords

Legislation

Cases

Secondary Materials

Reasons For Decision

Background

Issues

Does the Applicant pass the character test?

Is there another reason for the revocation of the cancellation of the Applicant’s visa?

The principles in paragraph 5.2

The Primary and Other Considerations

PRIMARY CONSIDERATION 1 – Protection of the Australian Community

Application of Factors in Paragraph 8.1.1(1) of the Direction

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

The Applicant’s contention

The Respondent’s position

The Applicant’s written material

The Applicant’s oral evidence

Evidence of Partner T, the Applicant’s current de-facto partner

Evidence of the Applicant’s Mother

Findings about recidivism – positive factors

Absence of offending while in the community

Evidence of completed courses and attempts at rehabilitation

Re-defined relationship with the victim (Partner L)

The support of the Applicant’s family

The Applicant’s current domestic partner – Partner T

The Applicant’s prompt return to employment

The Applicant’s expression of remorse, embarrassment and regret for his offending

Findings about recidivism – negative factors

Extent of testing of rehabilitation in the general community

The proximity of the Applicant’s family

Employment as a mitigating factor

The existence of a domestic violence order

Expressions of remorse, regret and embarrassment

Testing and status of certain of the Applicant’s witnesses

Absence of independent psychological or psychiatric opinion about the Applicant’s risk of recidivism

Conclusions on risk

The Applicant’s level of recidivist risk

The extent of harm represented by further offending by the Applicant

Conclusion: Primary Consideration 1

PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

Who are members of the Applicant’s family?

Partner L?

The two relevant children?

Did any of the Applicant’s conduct constitute family violence?

Incident: 21 November 2017

Incident: 19 April 2018

Incident: 28 September 2018

Incident: 4 July 2019

Assessment of the seriousness of the Applicant’s family violence

Conclusion: Primary Consideration 2

Primary Consideration 3: The Best Interests of Minor Children in Australia

Identification of relevant children

Preliminary issue – status of unborn child

Consideration of factors

Conclusion: Primary Consideration 3

Primary Consideration 4: The Expectations of the Australian Community

Analysis – Allocation of Weight to this Primary Consideration 4

Conclusion: Primary Consideration 4

Other Considerations

(a) International non-refoulement obligations

(b) Extent of Impediments if Removed

(c) Impact on victims

(d) Links to the Australian Community

Strength, nature and duration of ties

1. Impact of non-revocation on the Applicant’s immediate family

2. Strength, nature and duration of “other ties” – length of residence

3. Strength, nature and duration of “other ties” – family and other social links

Impact on Australian business interests

Weight allocable to Other Consideration 4: links to the Australian community

Findings: Other Considerations

CONCLUSION

Is there another reason to revoke the cancellation of the Applicant’s visa?

Decision

Reasons For Decision

Senior Member Theodore Tavoularis

25 May 2021

Background

1. Cameron James Bennett (the “Applicant”) is a 25 year old citizen of New Zealand. Movement records indicate he initially arrived in Australia on 5 March 1998. His movement records in and out of Australia thereafter can be tabulated as follows:

Time in Australia
Arrive	Depart	Days	Years	Approximate Age On Arrival
5 March 1998	28 April 2004	2246	6yrs 2mo	2yrs 6mo
13 May 2004	18 March 2006	674	2yrs 10mo	8yrs 8mo
1 April 2006	10 September 2007	527	1yrs 5mo	10yrs 7mo
26 October 2007	1 April 2008	158	0yrs 5mo	12yrs 2mo
13 April 2008	27 April 2021 (decision date)	4932	14yrs 6mo	12yrs 2mo

1. The Applicant was two years and six months old when he first arrived in Australia and has spent a total of approximately 23 years and four months here. In that time, he has spent a total of about two months outside of Australia.

2. The Applicant has a relatively short criminal history in Australia. Due to the very young age he left New Zealand, there is no history of offending in that country. In Australia, there is the one sentencing episode that occurred at the Maroochydore District Court on 21 September 2020. On that day, the court convicted and sentenced the Applicant as follows:

Court date	Offence date	Offence	Result
21 Sep 2020	4 Jul 2019	Choking Suffocation Strangulation – Domestic Relationship – Domestic Violence Offence[1]	Conviction recorded Sentenced to imprisonment for 2 years and 3 months, to be suspended for 30 months after serving 6 months in actual custody
21 Sep 2020	4 Jul 2019	Contravention of Domestic Violence Order[2]	Summary Offences dealt with under s 651 of the Code Conviction recorded Not further punished
21 Sep 2020	4 Jul 2019	Possession of Dangerous Drugs[3]

[1]           Pursuant to Criminal Code Act 1899 (Qld) Sch 1 (“Code”) ss 315A(1)(a) & (b)(i), 564(3A).

[2]           Pursuant to s 177(2)(b) of the Domestic Violence and Family Violence Protection Act 2012 (Qld) (“DFVPA Act”).

[3] Pursuant to s 9(1) of the Drugs Misuse Act 1986 (Qld).

1. As is clear, the Applicant’s history of offending is one of brevity. It involves a singular offending episode resulting in convictions for (1) violent offending in a domestic context; (2) a breach of an extant domestic violence order (‘DVO’); and (3) possession of dangerous drugs.

2. However, the Applicant has a history of family violence (within the meaning of the Migration Act 1958 (Cth) (“Act”) which spans a number of years. I will detail this family violence later in these reasons.[4]

   [4]           See [‎146]–⁠[‎222], below.

3. On 10 November 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the “Minister” or the “Respondent”) mandatorily cancelled the Applicant’s Class TY (subclass 444) Special Category visa (the “Visa”) under s 501(3A) of the Act.

4. The Applicant made the necessary representations seeking revocation of the abovementioned mandatory cancellation decision. On 2 February 2021, a delegate of the Minister decided not to exercise the discretion in s 501CA(4) to revoke the original mandatory cancellation (the “reviewable decision”).

5. On 11 February 2021, the Applicant made the instant application to this Tribunal seeking review of the reviewable decision. The hearing of this application proceeded before me on 15 April 2021. The written evidence was compiled into an agreed Exhibit Register, a true and correct copy of which (anonymised) is attached hereto and marked Annexure A. The Tribunal also received oral evidence from the Applicant’s current domestic partner (Partner L), his Mother, and the Applicant himself.

6. Khalil v Minister for Home Affairs [2019] FCAFC 151 (“Khalil”) underscores that there is a distinction between the decision of the Tribunal and its reasons for that decision:[5]

   “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]

   [5]           Khalil, [41]–[48].

7. On 27 April 2021, I caused the Tribunal to publish my decision (in short-form) in this matter. A true and correct copy of that decision is attached to these Reasons and marked Annexure B. The within reasons are the detailed reasons of this Tribunal delivered within a reasonable time of my short-form decision.

   Issues

8. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this sub-section 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.

9. As mentioned, the Applicant has previously made the necessary 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:[6]

   “…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…”[7]

   [6] [2018] FCAFC 151.

   [7] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 [38] (North ACJ); Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548 [31] (Collier J, with whom Logan and Murphy JJ agreed).

10. 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.

11. If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal is compelled to find that the cancellation of the Applicant’s visa must be revoked.[8] I will address each of these grounds in turn.

    [8] [2018] FCAFC 151 [21].

    Does the Applicant pass the character test?

12. 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”.

13. The Applicant’s conviction on 21 September 2020 resulted in the imposition of a head custodial term of two years and three months. There is a ready concession by the Applicant that he does not pass the character test. There is a further concession that the only issue before the Tribunal is whether there are other reasons why the original mandatory cancellation should be revoked.[9] Both of these concessions are reflected by respective contentions to this effect in the Respondent’s Statement of Facts, Issue and Contentions (“SFIC”).[10]

    [9]           A1, 2[11].

    [10]          R1, 3[3]–3[4].

14. There can be no question that he does not pass the character test pursuant to s 501(6)(a) of the Act. It follows that he cannot rely on s 501CA(4)(b)(i) of the Act for the revocation of the mandatory cancellation.

    Is there another reason for the revocation of the cancellation of the Applicant’s visa?

15. 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. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction” or “Direction 90”) has application.[11] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:

    “Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”[12]

    [11]          Direction 90 commenced on 15 April 2021. It revokes Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.

    [12]          Direction, paragraph 6. See also Direction, paragraph 4(1) which provides that “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.

    The principles in paragraph 5.2

16. Paragraph 5.2 of the Direction is designed to “provide a framework within which decision-makers should approach their task” under s 501 or 501CA, as the case may be. Summarised where appropriate, the principles are:

    (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)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia.

    (3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).

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

    (5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

    The Primary and Other Considerations

17. Paragraphs 8 and 9 of the Direction respectively stipulate four “Primary Considerations”, and four “Other Considerations” which I must be guided by in making my decision.

18. The Primary Considerations I must take into account are:

    “(1) protection of the Australian community from criminal or other serious conduct;

    (2) whether the conduct engaged in constituted family violence;

    (3) the best interests of minor children in Australia;

    (4) expectations of the Australian community.”[13]

    [13]          Direction, paragraph 8.

19. The Other Considerations which, where relevant, I must take into account “include but are not limited to”:

    “a) international non-refoulement obligations;

    b) extent of impediments if removed;

    c) impact on victims;

    d) links to the Australian community, including:

    i) strength, nature and duration of ties to Australia;

    ii) impact on Australian business interests”[14]

    [14]          Direction, paragraph 9(1).

20. Paragraph 7 of the Direction also provides guidance as to how to take into account each primary and other consideration. Briefly summarised, the Direction instructs decision-makers that:

    (1)information from independent and authoritative sources should be given appropriate weight;

    (2)Primary Considerations should “generally” be given greater weight than Other Considerations; and

    (3)One or more Primary Considerations may outweigh other Primary Considerations.

21. The guidance in s 7 I have quoted above does not differ materially from the guidance which appeared in former directions. Colvin J said of the former Direction 65 that:

    “…Direction 65 [a predecessor to Direction 90] 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.”

1. I will now turn to addressing the abovementioned Primary and Other considerations.

   PRIMARY CONSIDERATION 1 – Protection of the Australian Community

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

3. In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(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.

   Application of Factors in Paragraph 8.1.1(1) of the Direction

4. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:

   (a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

   (i)violent and/or sexual crimes;

   (ii)crimes of a violent nature against women or children, regardless of the sentence imposed;

   (iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

   (b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

   (i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

   (ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

   (iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));

   (iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;

   (c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

   (d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;

   (e)the cumulative effect of repeated offending;

   (f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

   (g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).

5. Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.

6. The Applicant has been convicted of at least one offence which engages this sub-paragraph (a). The circumstances of the offending are amply canvassed in the sentencing remarks of His Honour Judge R S Jones of the Maroochydore District Court. His Honour noted the following while sentencing the Applicant:

   “This is a very sad case. You had been in a relationship with the complainant for in the order of seven years. You come before this Court as a 25 year old and at the time of the offending you were only 23. So you had obviously been in a relationship with the complainant from when you were both at a very young age. There were two children to that relationship and, as I said, the ramifications of your offending will really have dramatic, if not disastrous ramifications for any relationship between you  and your children.

   […]

   This offending is particularly vile and that is why Parliament introduced the specific offences such as choking in a domestic setting. As was pointed out by the prosecutor, choking is often a forerunner to more serious domestic violence up to and including, indeed, domestic homicide.

   […]

   Just returning briefly to the schedule of facts, at the time, as I said, you were 23 years of age. You had separated at least in an emotional sense from your complainant, but you were still living under the same roof at the time, with the two boys aged two and four years of age. On this particular night the complainant was home with the two children and you had been out drinking with one of your brothers or perhaps both of your brothers.

   In any event, when you returned home you were clearly intoxicated and your conduct towards the complainant became increasingly excessive. As I said, all of this occurred in the face of earlier domestic violence protection orders having been made. You got home at about 9.45pm, as I said, in an intoxicated manner. The complainant approached you and, in effect, said, “Well, look, either leave the house or go straight into the bedroom and sleep.”

   You then made a number insults towards the complainant, slammed the door into the wall with such force as to cause damage to the plasterboard. You were clearly in an emotional state as well as being intoxicated. You had made a number of comments to the effect that, “No one cares for me. If I leave here, I’m going to go and kill myself.” By this time at least one of the children was already crying. You then picked up one of the children’s tricycles and started to swing it towards the complainant. By this time both of the children were crying and asking you to stop.

   The complainant tried to defuse the situation by leaving and walking around to the front of the house. As was pointed out by the Prosecution, an aggravating feature was, in addition to this conduct being in front of the children, that you followed the complainant. You then came up behind her, grabbed her by the neck, pressed her against the chest and then then pushed your clenched fist up against her throat applying pressure to her windpipe. She was unable to breathe properly. She had to gasp for air and when she tried to move away, you just pressed your fist even harder into her throat.

   Particularly disturbingly, as I have already said, all of this occurred in front of the two children. In the victim impact statement that I will come to in a moment, clearly a traumatic episode in their life at such a young age.”[15]

   [My underlining and emphasis]

   [15]          G1, 35–36.

7. The material also contains a “Statement of Facts” presumably tendered by the prosecution at the time of sentencing. The sentencing remarks largely repeat and rely on this statement of facts. However, the statement includes certain other particulars of the Applicant’s offending which should be noted for present purposes:

   “As the defendant applied pressure to her throat, the complainant was unable to breathe. She was gasping for air and tried to speak but was unable to do so. She tried to move away and the defendant pressed his fist into her throat harder. He did not speak to her. He continued to apply pressure for one or two minutes. The complainant felt tingly and was having difficulty moving at all. The children asked the defendant to let her go.”[16]

   [16]          R3, 20[11].

8. There can be no cavilling with the finding that the Applicant’s conviction on 21 September 2020 involved a very serious and violent offence against his ex-partner (a woman). The conduct involved him choking her without her consent with such offending occurring in the context of the then-domestic environment he shared with her. This conduct fell squarely within the provisions of s 315A of the Code and carried with it a maximum penalty of seven years imprisonment.

9. When a person is charged on an indictment which states an offence is a “domestic violence offence”, in accordance with s 564(3A) of the Code, the effect is that the provisions of s 12A of the Penalties and Sentences Act 1992 (Qld) are triggered. Regardless of the effect of those provisions, the weight of authority means that I am precluded from going behind the circumstances of the conviction: the Applicant was convicted on the basis that the offence was a domestic violence offence.

10. For clarity, the abovementioned “weight of authority” is expressed in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202. There, His Honour Colvin J (McKerracher J concurring on this point)[17] noted:

    “179. […] I add some observations concerning the principles to be applied in cases where a party seeks to advance a factual position before an administrative decision-maker that is contrary to the necessary factual foundation upon which a conviction or custodial sentence is based.

    180. The procedure that must be followed in criminal proceedings requires a high standard of proof after a clear statement of the nature of the charges brought against an accused person.  There are many protections for the accused in the criminal trial process.  Therefore, a high degree of confidence may be entrusted in the truth of the factual matters that provide the necessary foundation for a criminal conviction or the imposition of a sentence.  It follows that it is a serious matter for a person convicted of a criminal offence to seek to contradict the factual matters that provide the foundation for the conviction or the imposition of the sentence.

    181. In an administrative law context, some decision‑making powers conferred by legislation depend upon the fact of a particular criminal conviction or sentence.  They require its existence and confer no power to go behind it in the course of the exercise of the power.  In such cases, the conviction or sentence becomes a foundation upon which the decision‑maker must proceed (there may be others).  The statutory authority reposed in the decision‑maker does not extend to questioning the very matter the existence of which enlivens the power conferred by the statute…

    […]

    183. In other instances, the fact of the conviction or sentence (or indeed the factual matters upon which the conviction or sentence is necessarily based) may be relevant to the exercise of a decision-making power which does not have, as its jurisdictional foundation or one of the factual matters that must be acted upon in the exercise of the power, the conviction or sentence. In such instances, the administrative decision-maker may reach a conclusion upon all the material before the decision‑maker to the effect that the true position is contrary to the factual foundation on which the conviction or sentence depends. There is no issue estoppel that operates. However, it is unlikely that an administrative decision‑maker would do so. The reason why that is so is due to the high degree of confidence that, in almost all cases, ought to be afforded to the veracity of factual matters that provide the necessary foundation for the conviction or sentence.

    […]”

    [My emphasis and underlining]

    [17]          HZCP, [77]–[79].

11. It should be noted, however, that there are material differences between the definition of “domestic violence” in the Code and the definition of “family violence” in Direction 90.[18] For reasons which I outline in my consideration of Primary Consideration 2, this very serious offending was not technically “family violence” as between the Applicant and his former partner. It was, however, family violence as between the Applicant and his children.

    [18]          The Code definition relevantly defines “domestic violence offence” as “an offence […] committed by a person where the act done, or omission made, which constitutes the offence is also “domestic violence or associated domestic violence, under the Domestic and Family Violence Protection Act 2012 [(Qld)], committed by the person”. The DFVPA definition of “domestic violence” (in s 8) turns on whether two people are in a “relevant relationship” of the kind enumerated in ss 13–⁠20 in the DFVPA. Importantly, a “couple relationship” exists where a person “have or had a relationship as a couple.” [My emphasis]

    Put another way, a domestic violence offence can exist where a relationship is no longer current. This singular example shows that proof that offence constitutes domestic violence under state legislation should not be treated as automatically satisfying the meaning of “family violence” for the purposes of Direction 90.

12. Contemporaneous with his conviction pursuant to s 315A of the Code, the Applicant was also convicted of contravening a previously-made DVO pursuant to s 177(2)(b) of the Domestic and Family Violence Protection 2012 Act (Qld). The relevant order contained the names of his former partner (as the aggrieved). It also included the names of his two infant children, Child C and Child K, as other named persons protected by the order. The order was made with an operative effect of five years, commencing on 23 April 2018 and remaining in force until 23 April 2023.

13. With reference to his former partner, the order directed the Applicant to:

    ·“[…] be of good behaviour to the aggrieved”;

    ·“not commit domestic violence against the aggrieved”.

14. With reference to Children C and K, the order further compelled him to:

    ·“[…] be of good behaviour towards [Children C and K]”;

    ·“not commit associated domestic violence against the [Children]”; and

    ·“not expose the children to domestic violence”.

15. The circumstances of the Applicant’s offending renders that conduct patently violent. It falls squarely within the ambit of paragraph 8.1.1(1)(a)(i) of the Direction.

16. It is conduct that has obviously been committed against a woman, and, as such, also falls squarely within the ambit of paragraph 8.1.1(1)(a)(ii) of the Direction. While the Applicant was not, strictly speaking, convicted of committing violent offence against a child or children, it nevertheless brought both Children C and K into its immediate orbit. The children were not bystanders or idle observers to the offending. They became actively involved in trying to convince the Applicant to desist from his violent and menacing behaviour.

17. Direction 90 provides that “family violence” includes violent conduct against a family member, or conduct which causes a family member to be fearful. For the reasons outlined at [‎148]–⁠[‎160] and [‎185]–⁠[‎189], below, I am satisfied that the Applicant’s commission of this very serious offence constituted family violence as between the Applicant and his children. I am thus satisfied that the offence constituted family violence. It therefore falls squarely within the ambit of paragraph 8.1.1(1)(a)(iii) of the Direction.

18. Taking into account all of the evidence, I find that sub-paragraph (a) of paragraph 8.1.1(1) of the Direction militates very strongly in favour of a finding that the Applicant’s criminal offending has been of a very serious nature.

19. Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

    (i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

    (ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

    (iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));

    (iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention.

20. As best as I understood the material, there is no contention from the Respondent that the Applicant’s conduct attracts the operative effect of any of the abovementioned sub-paragraphs (i)–(iv), inclusive. Thus sub-paragraph (b) is therefore not relevant to determination of the instant application.

21. Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker to consider the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. Its terms are expressed thus:

    “With the exception of the crimes or conduct mentioned in sub-paragraph (a)(ii) and (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes”

    [My emphasis and underlining]

22. This sub-paragraph (c) is thus expressed to have no application to sentences imposed for offending which attracts the operation of sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction. To my mind, this means that whatever sentence is imposed on an offender for the commission of crimes falling (for present purposes) within the ambit of (a)(ii) or (a)(iii), that offending must be viewed as “very serious” for the purposes of paragraph 8.1.1(1) of the Direction, even if the sentence imposed was at the low end of the range for that type of offending. 

23. Therefore, taking into account the “exception” provision in this sub-paragraph (c), I cannot have regard to the level of seriousness indicated by the custodial term of 2 years and 6 months imposed on the Applicant for the “Choking Suffocation Strangulation Domestic Relationship – Domestic Violence Offence”. I must treat that offence as indicative that the nature and seriousness of the Applicant’s offending viewed as a whole is “very serious” even though the Applicant received a sentence in the bottom one-third of the available sentencing range.

24. I turn next to the Applicant’s respective convictions for possession of a dangerous drug and contravention of a DVO. The difficulty with the sentences he received for these offences is that despite their summary nature, they were dealt with by the District Court under s 651 of the Code at the same time as the strangulation offence. Further, the sentencing regime stipulated that for those two offences comprised (1) the recording of respective convictions and (2) that the Applicant be “not further punished” for each of those two summary offences.

25. This means that the Applicant’s “punishments” for the two summary offences fell within the ambit of the head sentence of two years and three months. It is not appropriate to “double count” the head sentence of two years and three months against the Applicant in respect of the summary offences.

1. In the circumstances, this sub-paragraph (c) militates in favour of a finding that the totality of the Applicant’s offending must be viewed as very serious.

2. Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. It is necessary to approach this factor with some caution. At first blush, it would not appear to have any application to determination of the instant application. This is because the Applicant cannot be said to be a “frequent” offender for the types of offences for which he was convicted on September 2020, they being: (1) possession of dangerous drugs; (2) contravention of a DVO; and (3) choking/strangulation-type offending. Accordingly, there can not be found to be any “trend of increasing seriousness” in the Applicant’s commission of such offences.

3. On the other hand, it should be noted that the Applicant is not entirely free of offending during the period leading up to his commission of the offences for which he was sentenced in September 2020. This is because there is reference in the material to his commission of traffic offences during the period 2016 and 2017. Stated concisely, those traffic offences involved:

   ·leaving the scene after crashing into a stationery car in a shopping centre car park against an unoccupied vehicle – recorded by police as a hit and run incident on 27 November 2014;[19]

   ·failure to display legible green plates at front and rear of car on 27 May 2016;[20]

   ·exceed speed limit by at least 13 km/h but not more than 20 km/h on 27 May 2016;[21]

   ·exceed speed limit in school zone by less than 13 km/h on 12 September 2017.[22]

   [19]          R3, 114.

   [20]          R3, 116.

   [21]          R3, 116.

   [22]          R3, 118.

4. The material also contains reference to the Applicant being involved in the commission of two drink-driving offences. The material is silent about whether any actual charges were proffered and whether any conviction ensued. The drink driving activity is recorded in the material thus:

   ·driving a motor vehicle over the middle alcohol limit, but not over the high alcohol limit on 4 July 2019; and

   ·failure to provide a specimen of breath when required to do so by a lawfully empowered police officer on 4 July 2019.[23]

   [23]          R3, 95.

5. My abovementioned caution around how to approach the exercise of allocating weight to this sub-paragraph (d) derives from the following:

   (i)there is no discernible frequency in the Applicant’s commission of offences of the type for which he was convicted in September 2020;

   (ii)the four traffic offences are unremarkable and are also of an entirely different genre to the Applicant’s crimes sentenced in September 2020. To my mind, the traffic offences do not speak to any discernible frequency in the totality of the Applicant’s offending. While the offences punished in September 2020 are clearly more serious than the four traffic offences, it would, to my mind, be unsafe to allocate any significant weight to this sub-paragraph in the assessment of the nature and seriousness of the Applicant’s total offending conduct;

   (iii)the two abovementioned drink-driving offences were committed contemporaneously with the offences punished in September 2020. They are thus not informative of any frequency or trend of increasing seriousness in the Applicant’s offending.

6. At best, only a slight level of weight is allocable in favour of a finding that the Applicant’s conduct has been serious pursuant to this sub-paragraph (d) on the basis that it may be said to be either frequent or that there is a discernible increasing trend in its seriousness.  

7. Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending. While it is not too difficult an exercise to locate and describe cumulative effects of the Applicant’s offending, I am mindful that the application of this sub-paragraph is predicated on such cumulative effects resulting from an applicant’s “repeated” offending. Here, the discernible cumulative (and negative) effects of the Applicant’s offending derive from a singular offending episode. There is no “repeated” element to the offending. Out of an abundance of caution, I will refrain from engaging the provisions of this sub-paragraph for the purposes of assessing the nature and seriousness of the Applicant’s conduct. I will, however, be referring to certain cumulative effects of the Applicant’s domestically violent offending in my discussion about paragraph 8.2(3)(b) of the Direction.

8. Sub-paragraph (f) of paragraph 8.1.1(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. I have carefully perused the material and have not been able to locate any circumstance where the Applicant has falsely or misleadingly responded to any request for information about his offending either from the Respondent or, for that matter, any other lawfully constituted entity competent to make such request of him. Accordingly, this sub-paragraph (f) is not relevant to determination of the instant application.

9. Sub-paragraph (g) of paragraph 8.1.1(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. I have carefully perused the material and have not located any formal or other written warning either from the Respondent or any other lawfully constituted entity duly empowered to warn the Applicant about adverse consequences his offending has had or may have on his visa status to remain here. This sub-paragraph (g) is not relevant to determination of the instant application.

10. I have had regard to all of the sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction. With particular reference to my analysis of the weight allocable to sub-paragraphs (a) and (c), I am of the view that the Applicant’s offending can be readily characterised as “very serious”. The offending punished in September 2020 was of a violent nature against a woman, and it was family violence because it was committed in the presence of children who were adversely affected by it.[24] 

    The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

    [24]          See [‎185]–⁠[‎189], below.

11. Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

12. Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:

    (a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;

    (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

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

    (ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and

    (c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

    The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct

13. Sub-paragraph 8.1.1(2)(a) compels an inquiry into the risk to the Australian community in the event the Applicant were to re-engage in further criminal or serious conduct. Specifically, this sub-paragraph requires an assessment of the nature of the harm likely to be suffered by or occasioned upon individuals or the Australian community were the Applicant to re-offend.

14. I have earlier outlined the nature of the harm that the Applicant’s offending occasioned upon his victim when he committed the “choking suffocation strangulation – domestic relationship – domestic violence” offence. There is no requirement to repeat the circumstances of that offending. However, it is necessary to have regard to paragraph 8.1.2 to the general policy of paragraph 8.1.2(1) of the Direction. Specifically, that paragraph stipulates: “Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.” The further salient point arising from paragraph 8.1.2(1) is that “[…] the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of potential harm increases.”

15. It is, to my mind, significant to note that the learned sentencing judge was aware of why the Queensland Parliament amended the law in relation to domestic violence offending to include choking-type conduct in a domestic setting:

    “This offending is particularly vile and that is why Parliament introduced the specific offences such as choking in a domestic setting. As was pointed out by the prosecutor, choking is often a forerunner to more serious domestic violence up to and including, indeed, domestic homicide.”[25]

    [25]          Transcript, 35, lines 24–37.

16. The circumstances of the Applicant’s very serious domestic violence offending culminating in his conviction in September 2020, to my mind, squarely comprises conduct that, if repeated, is “so serious that any likelihood that it may be repeated is unacceptable” to the Australian community. Having regard to the Applicant’s offending in its totality that came before the court in September 2020, I am also of the view that the Australian community’s tolerance for any risk of future harm arising from any of (1) domestic violence – choking/suffocation/strangulation offending; (2) a contravention of an extant domestic violence order; and (3) possession of dangerous drugs would become lower were he to re-commit offences in any of these realms.

17. The Applicant’s conduct constituting the choking/suffocation/strangulation offending committed in July 2019 had the effect of directly threatening the life of his victim. Were the Applicant to be returned to the Australian community and re-commit similar violent and very serious offending within a domestic context, there can be little said by him to cavil with the finding that harm resulting to a future victim(s) would parallel that suffered by his victim in July 2019.

18. Regard should be had to the abovementioned paragraph of the Direction: it is reasonable and safe to find that were the Applicant to repeat such offending in a domestic context, its impact and consequences “may be so serious, that any risk of similar conduct in the future is unacceptable.”

19. Were he to re-commit an offence like choking/suffocation/strangulation in a domestic context, his offending could conceivably result in significant physical and emotional harm to a quite realistically catastrophic level.

    The likelihood of the non-citizen engaging in further criminal or other serious conduct

    The Applicant’s contention

20. The Applicant contends his risk of re-offending is “unlikely” for the following reasons:

    “It is contended that the evidence before the Tribunal is that the likelihood of the Applicant engaging in further criminal or other serious conduct are that it is unlikely. No evidence of the risk of the Applicant reoffending is before the Tribunal and there is strong evidence of rehabilitation achieved by the time of this Hearing. The Tribunal can take into account that the Applicant was on bail from approximately 10 July 2019 until he was sentenced on 29 September 2020, a period of approximately one year and two months on bail living in the community with [Partner T]. It is further contended that strong evidence of rehabilitation such as the behaviour report from Woodford Correctional Centre, the acknowledgement by the sentencing Judge of the Applicant’s initiative towards his rehabilitation, the Applicant’s participation in Men Seeking Change and evidence of the Applicant seeking assistance with his mental health issues are relevant and it is contended that this weighs in favour of revocation.”[26]

    [Internal footnotes omitted]

    [26]          A1, 5[26].

    The Respondent’s position

21. The Respondent takes the position of noting and accepting that “[…] the Applicant has taken some actions towards his rehabilitation since the time of his offending (including participation in relevant behaviour and substance courses and counselling).”[27] The Respondent also helpfully summarises the evidence possibly militating in favour of a finding of a low risk of recidivism.[28] I will address each of these elements in turn.

    [27]          R1, 16[45].

    [28]          See R1, 15[43].

    The Applicant’s written material

22. There is a certificate and accompanying letter from Uniting Care dated 11 October 2019 confirming the Applicant has concluded the “Men Choosing Change” program. The certificate of completion confirms the Applicant completed 16 sessions of this course and otherwise completed all of its requirements by 17 March 2020. Following an intake interview on September 2019, the 16 sessions in which the Applicant participated covered “topics such as accepting responsibility for yourself, the journey of accountability, ways of calming your emotions, the cycle of violence, exploring masculinity, impacts of domestic violence on women and children, and the challenges of changing.”[29]

    [29]          G1, 133–134.

23. The maker of this letter was not called to give oral evidence and therefore the Respondent was not able to cross-examine her.

24. The material also contains evidence of the Applicant’s participation in and completion of relevant drug and alcohol courses. There are respective letters from QuIHN dated 4 September 2019, 14 May 2020, and 16 July 2020. QuIHN is described as, essentially, “counselling and group work for people wanting to cease, reduce or moderate their alcohol and/or illicit drug use and manage any co-occurring mental health issues that may be present.”[30] The Applicant initially contacted QuIHN on 9 August 2019 making a request to become involved in this counselling and was eventually placed on QuIHN’s waitlist.

    [30]          G1, 122–124.

25. These three letters from QuIHN were prepared for sentencing purposes in relation to the Applicant’s offending punished in September 2020. The most recent of those letters, dated 16 July 2020 confirms the Applicant first attended on QuIHN on 21 August 2019 and completed the relevant assessment process. Following the undertaking of psychometric testing QuIHN and the Applicant agreed that he would attend on a fortnightly basis “in order to focus on relapse prevention, emotional regulation, and mental health concerns.”[31] This particular letter from QuIHN confirms that the psychometric testing conducted on the Applicant resulted in “a major reduction in depression, anxiety and stress […] as well as a healthy self esteem.” This particular letter also notes that the reduction in these symptoms “is due to increased self awareness, abstinence from alcohol, and his continued practise of new skills and strategies learnt during individual sessions and group program.”

    [31]          G1, 124.

26. This latest letter from QuIHN concludes with the observation that the Applicant “has strong values regarding being the best father he can be for his children. He consistently affirms his determination to remain abstinent from alcohol, as continue to improve his mental health (including anger management) and overall wellbeing […]”[32]

    [32]          G1, 124.

27. It can be noted that the writer of these three letters was the same person. She described herself as an “Accredited Mental Health Social Worker” and “Dual Diagnosis Counsellor”. She was not called to give oral evidence and therefore the Respondent was denied the opportunity of testing her evidence in cross-examination.

28. The material contains a letter from “Lives Lived Well Youth Outreach Drug & Alcohol Service” (“Lived Lived Well”) dated 29 August 2019. The letter is written by a social worker who has particular expertise as a “Alcohol and Other Drugs Counsellor”. The letter confirms that the Applicant commenced engagement with this service on 24 July 2019 and that the relevant social worker had “met with him on 3 occasions with he last being 28^th August2019 [sic]”. The letter also noted a further appointment was scheduled for 30 August 2019. The letter went on to note the Applicant:

    “Mr Bennett has been engaged with our service, recognising that his substance use had become problematic. Cameron has indicated great insight into abstaining from his alcohol use as he recognized it had been impacting on his decision making ability as evidenced by his appearance before you today. Cameron has reported abstinence from his alcohol beginning prior to his engagement with our service. Discussion to date has encompassed the effect of alcohol and use on brain functioning, identifying individual and community risk factors, goal setting, relapse prevention strategies to minimize the risk of future harm.”[33]

    [33]          G1, 163.

29. The writer of this letter was not called to give oral evidence and the Respondent was thus denied the opportunity of testing her evidence in cross-examination.

30. In his various written statements, the Applicant propounds a position of having addressed and resolved the issues previously predisposing him to so very seriously offend. The Applicant’s statutory declaration made on 3 December 2020 appears in the material. With reference to the former (ie, the factors predisposing him to offend), he said the following:

    “Factors that I believe help explain my offending, that I want the decision maker to take into account.

    34. In providing an explanation I do not attempt to in any way diminish the seriousness of my offence for which I am deeply remorseful.

    35. I have struggled with my mental health for some time, namely depression and anxiety. These conditions were diagnosed in 2019.

    36. I used to drink, smoke marijuana and occasionally take ecstasy.

    37. Under the influence of alcohol, I acted in a way that I am now ashamed about and I have made significant attempts to change my behaviour and make better choices in the future.”[34]

    [Underlining in original]

    [34]          G1, 82[34]–82[37].

31. With specific reference to the rehabilitative and other courses he has completed, his statutory declaration said the following:

    “I have completed courses and programs that will help me avoid further offending.

    38. I have completed Men Choosing Change, presented by the UnitingCare Community. This entailed 16 sessions and I found this very helpful, insightful and I am confident that this will help me with better choices throughout my life. I completed this on 17 March 2020.

    39. I have also obtained a mental health care plan from MediCrew Buderim.

    40. I consulted with and were receiving psychological support from Integrative Clinical Psychology prior to my incarceration.

    41. I also engaged in counselling from an accredited mental health social worker at QuIHN.”[35]

    [Underlining in original]

    [35]          G1, 82[38]–82[41].

32. With specific reference to his risk of recidivism, his statutory declaration says the following:

    “43. I have never thought that my depression and anxiety, my alcohol abuse and bad choices will have me end up where I am now.

    44. Being in jail is my worst nightmare and I live for the knowledge that this will soon be over.

    45. The thought of ever having to do this again scares me to death.”[36]

    [36]          G1, 82, 83[43]–83[45].

1. To my mind, weight in favour of the Applicant can be found via an application of paragraph 9.4.1(2)(a)(ii) of the Direction. The Applicant has compiled an impressive level of work experience in Australia. He has worked as a labourer during 2011–2012, then as a scaffolder between 2012–2014. His primary area of work experience has been in concrete pumping in which field he has worked from 2014–2020. I have previously outlined the apparent quality of his work in the concrete pumping field and the esteem in which he is held by his former employer. The Respondent is respectfully correct to acknowledge “[…] that the applicant’s employment history demonstrates ties to the Australian community.”[163] The level of his work contributions to the Australian community can be further seen in respective notices of taxation assessment appearing in the material for the years of incoming ending 30 June 2016–2020.[164] Therefore, a strong measure of weight is allocable to him pursuant to this sub-paragraph 9.4.1(2)(a) of the Direction.

   [163]         R1, 25.

   [164]         See G1, 175–188.

   3. Strength, nature and duration of “other ties” – family and other social links

2. The first people who, to my mind, fall within the ambit of this specific category are the Applicant’s immediate family members. In summary the Applicant’s relationships with immediate family members who have a right to remain in Australia indefinitely can be summarised as follows:

   ·he has a strong mother-son relationship with his mother which has lasted his entire life;

   ·he has a strong sibling connection with his two brothers which has lasted his entire life;

   ·he has a relationship with the domestic partner of his Mother which has lasted (presumably) for the length of their domestic relationship;

   ·he has a strong de-facto relationship with Partner T. According to her evidence, they commenced their relationship on 25 July 2019 and moved in together in May 2020.[165]

   [165]         Presumably towards the end of the Applicant’s time on bail.

3. The next person that, to my mind, falls within the ambit of this specific category is Partner L. Although their previous domestic/de-facto relationship came to an end in or about 2019, the Applicant and Partner L were in that domestic relationship for something like seven years. I have previously outlined the nature of both her VIS and her subsequent affidavit. It suffices to say that the Applicant does have – indeed, is compelled to have – due to the parental arrangements for Children C and K a defined social link with Partner L. At the risk of “double counting”, it is arguable that the Partner of the Applicant’s mother also falls into this category. However, for the purposes of the within determination, I have included him as part of my discussion of the Applicant’s “immediate family members in Australia”.

4. I take into account and have regard to all of the evidence relating to the: (1) the extent of of the Applicant’s removal on his immediate family members in Australia; (2) the length of time he has resided in Australia; and (3) the extent of the strength, duration and nature of his family or social links with people who have an indefinite right to remain in Australia.

5. Therefore, I am of the view that these three elements to paragraph 9.4.1 of the Direction militate in favour of a finding that the strength, nature and duration of the Applicant’s ties to Australia weigh strongly, but not determinatively, in favour of the restoration of his visa status to remain here.

   Impact on Australian business interests

6. I am mindful that paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on “Australian business interests”. This phrase is sought to be given some measure of definition in the text of paragraph 9.4.2(3) because weight can “generally only” be allocated in this instance where a non-revocation decision “would significantly compromise the delivery of a major project, or delivery of an important service in Australia.”

7. I have previously recounted the Applicant’s impressive work history in Australia. I have also accepted that he has obtained a significant level of expertise in the field of concrete pumping and that he is well-regarded by his peers and valued by his employer. That said, it cannot safely be found that the Applicant’s removal from Australia would significantly compromise the delivery of a major project, or that it would otherwise compromise the delivery of an important service in Australia. Accordingly, this second part of Other Consideration 4 is not relevant to determination of the instant application.

   Weight allocable to Other Consideration 4: links to the Australian community

8. With specific reference to the first part of this Other Consideration (the strength, nature and duration of the Applicant’s ties to Australia), I am of the view that having regard to the three specific components of this first part of Other Consideration 4, the totality of the evidence points to a strong, but not determinative weight, in favour of the Applicant. As mentioned, the second part of this Other Consideration (impact on Australian business interests) is not relevant to determination of the instant application. 

   Findings: Other Considerations

9. 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 1, 2 and 4, each of which weigh in favour of non‑revocation. The weight allocable to the Other Considerations relevant to the present matter can be summarised as follows:

   (a)international non-refoulement obligations: not relevant;

   (b)extent of impediments if removed: slight weight in favour of the Applicant;

   (c)impact on victims: neutral; and

   (d)links to the Australian community: strong, but not determinative, weight in favour of the Applicant.

   CONCLUSION

   Is there another reason to revoke the cancellation of the Applicant’s visa?

10. Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of 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.

11. 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 1 weighs strongly in favour of non-revocation;

    ·Primary Consideration 2 weighs heavily in favour of non-revocation;

    ·Primary Consideration 3 weighs strongly, but not determinatively, in favour of revocation;

    ·Primary Consideration 4 weighs heavily in favour of non-revocation; and

    ·I have outlined the weight attributable to the Other Considerations. I do not consider that the totality of the weight attributable to the relevant Other Considerations 2 and 4, even when combined with the strong, but not determinative, weight I have attributed to Primary Consideration 3, outweigh the significant, combined and determinative weight I have attributed to Primary Considerations 1, 2 and 4;

    ·A holistic view of the considerations in the Direction therefore favours the non-revocation of the decision to cancel the Applicant’s visa.

12. Consequently, I cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.

    Decision

13. The decision under review is affirmed.

I certify that the preceding 332 (three hundred and thirty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

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

Associate

Dated: 25 May 2021

Date(s) of hearing:	15 April 2021
Advocate for the Applicant:	Mr Hendrik de Korte
Solicitors for the Applicant:	TdK Law
Advocate for the Respondent:	Ms Isla Tobin
Solicitors for the Respondent:	Clayton Utz

ANNEXURE A

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1-G8, paged 1‑400)	-	23 February 2021
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1-28)	1 April 2021	8 April 2021
R2	Bundle of Summonsed Material (paged 1-119)	-	29 March 2021
R3	Annexure A – Ministerial Direction 90	8 March 2021	29 March 2021
A1	Applicant’s Statement of Facts, Issues and Contentions (paged 1-11)	24 March 2021	25 March 2021
A2	Affidavit of Ms L F (1 page) which includes the following: ·     Parenting Agreement dated 4 February 2021 (2 pages)	23 March 2021	25 March 2021
A3	Photos of Applicant’s children with the Applicant’s family (5 pages)	-	25 March 2021
A4	Affidavit of Ms T F dated 20 March 2021 (1 page) which includes the following documents relating to Ms Francis: ·     Letter of Dr Kiran Varna dated 8 February 2021 (1 page) ·     Letter of Clinical Psychology Registrar Samantha Johnstone dated 10 March 2021 (2 pages) ·     GP Mental Health Care Plan dated 22 December 2020 (2 pages) ·     Ultrasound images (1 page) ·     (Duplicate copy of Exhibit A5 in this proceeding omitted as it was not Exhibited to Ms Francis’ affidavit)	Various	25 March 2021
A5	Letter of Dr Timothy Craven regarding the Applicant’s children (1 page) (duplicate of Annexure to A2)	5 March 2021	25 March 2021
A6	Letter from the Applicant’s Solicitor covering ‘Parenting Agreement’ between the Applicant and Ms L F (2 pages)	8 April 2021	9 April 2021
A7	Statutory Declaration of Juan Bennett (2 pages)	14 January 2021	12 April 2021

ANNEXURE B