Bou and Minister for Immigration and Border Protection (Migration)

Bou and Minister for Immigration and Border Protection (Migration) [2017] AATA 2781 (22 December 2017)
Division:GENERAL DIVISION
File Number(s): 2017/6113
Re:Mr Chanphanna Bou
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:22 December 2017
Place:Melbourne

The Tribunal affirms the decision under review.
[sgd]........................................................................
Senior Member A. Nikolic AM CSC
MIGRATION – cancellation of visa – substantial criminal record – failure to pass character test – violent and repeat nature of offending – unacceptable risk of reoffending – risk to the Australian community established – where Australian community would expect application to be refused – best interests of minor children in Australia – decision affirmed
Legislation
Migration Act 1958
Cases
Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146
Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65
Uelese v Minister for Immigration and Border Protection [2016] FCA 348; (2016) 69 AAR 8 Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Re Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
Secondary Materials
Ministerial Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
22 December 2017

Mr Chanphanna Bou seeks review of a decision by a delegate of the Minister for Immigration and Border Protection on 20 September 2017, to cancel his visa under section 501(2) of the Migration Act 1958 (the Act). The delegate found that Mr Bou did not pass the character test by virtue of sections 501(6)(a) and 501(7)(d) of the Act, as a consequence of his criminal convictions and imprisonment.
The hearing was conducted on 18 December 2017. The Applicant was represented by Mr Guy Gilbert SC of counsel, instructed by Bardo Lawyers. The Respondent was represented by Mr Tal Aviram, a solicitor from Clayton Utz.
For the reasons that follow, I have decided to affirm the decision under review.
BACKGROUND
Mr Bou was born in Cambodia on 23 July 1985 and is a citizen of that country. He arrived in Australia on 16 July 2000[1] and is currently 32 years of age. He held a Class AH Subclass 101 Child Visa from arrival in Australia until it was cancelled on 20 September 2017.
[1] G Documents numbering 93 pages and hereafter referred to as Exhibit R1, p.34.
On 4 August 2017 Mr Bou received a Notice of Intention to Consider Cancellation of his visa (the Notice),[2] referring to and enclosing a copy of a National Police Certificate dated 21 June 2017. That certificate details a number of criminal convictions as follows:
[2] Exhibit R1, pp.30-32.

COURT

COURT DATE

OFFENCE

COURT RESULT

Dandenong Magistrates’ Court

02 Nov 2016

Contravene Family Violence Final Intervention Order – Intentionally Cause Harm / Fear.

Possess heroin.

Contravene Community Correction Order.

Breach re 11/01/2016.

Threat to Inflict Serious Injury / Assault With Weapon.

6 months imprisonment. Concurrent.

1 month imprisonment. Concurrent.

Proven. 1 month imprisonment. Concurrent.

Aggregate 6 months imprisonment. Concurrent.

Dandenong Magistrates’ Court

11 Jan 2016

Contravene Family Violence Intervention Order.

Contravene Community Correction Order.

Breach re 10/06/2015 Threat to Inflict Serious Injury.

Assault With Weapon.

With conviction, adjourned to 10/01/2017.

Proven.

Original order has been varied. Convicted and a community corrections order for 12 months.

Melbourne Magistrates’ Court

20 Dec 2015

Contravene Family Violence Safety Notice (2 charges).

Possess Drug of Dependence (not

named).

With conviction, fined an aggregate of $750.00.

With conviction, fined $300.00.

Dandenong Magistrates’ Court

10 Jun 2015

Threat to Inflict Serious Injury.

Assault With Weapon.

Convicted and a community corrections order for 12 months. Unpaid community work – perform 80 hours of community work.

Dandenong Magistrates’ Court

20 Jan 2011

Recklessly Cause Injury (2 charges).

Fail to Answer Bail Granted (2 charges).

Aggregate 4 months imprisonment. Concurrent. Sentence is wholly suspended under s.27 of the Sentencing Act 1991. Operational period is 6 months.

Mr Bou was invited to respond to the Notice and did so via a Personal Circumstances Form dated 11 August 2017 (Personal Circumstances Form).[3] After considering his response, a delegate of the Minister decided to cancel Mr Bou’s visa, notifying him of the decision on 11 October 2017.[4]
[3] Exhibit R1, pp.50-60.
[4] Exhibit R1, pp.10-13.
By application dated 16 October 2017, Mr Bou asked the Tribunal to review the delegate’s decision, submitting that:
the delegate failed to exercise the discretion available to him under s501(2) of the Migration Act 1958 by failing to take into account all relevant circumstances as guided by Ministerial Direction no. 65.
LEGISLATIVE FRAMEWORK
Section 501(2) of the Act provides for the Minister or their delegate to cancel a visa if the Minister reasonably suspects that the person does not pass the character test, and the person does not satisfy the Minister that the person passes the character test. The Tribunal’s jurisdiction to review such decisions is provided for at section 500(1)(b) of the Act.
The term character test is defined at section 501(6) of the Act. A person does not pass the character test if any one of the 11 sets of circumstances detailed in that section applies to them. A delegate of the Minister has cancelled Mr Bou’s visa on the basis that he has ‘a substantial criminal record,’ within the meaning of section 501(7)(d) of the Act, in that he has been ‘sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more.’
DIRECTION No. 65
If an applicant does not pass the character test, this enlivens a discretion under section 501(2) of the Act whether or not to cancel the person’s visa. Guidance in exercising the discretion is found in Ministerial Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (the Direction). Section 499(2A) of the Act mandates that the Tribunal must comply with the Direction (see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J).
Paragraph 6.1 of the Direction sets out the following objectives:
6.1 Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2) Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
…
(4) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
By way of general guidance, paragraph 6.2 of the Direction provides:
6.2 General Guidance
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501…
The principles referred to under General Guidance are reproduced below and constitute a framework within which decision-makers must apply the considerations in Parts A, B, or C of the Direction:
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7.1(a) of the Direction states that a decision-maker ‘…must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa.’ Paragraph 8(1) of the Direction explains that the considerations in Part A and Part C for existing visa holders and in Part B for visa applicants are different:
Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
If it is determined that Mr Bou does not pass the character test, three primary considerations at paragraph 9(1) of the Direction must be applied to the specific circumstances of his case:
(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 10(1) of the Direction requires that the other considerations be taken into account in deciding whether to cancel a visa, includes but is not limited to:
(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.
Paragraph 8(4) of the Direction states that …Primary considerations should generally be given greater weight than the other considerations. Paragraph 8(5) states that …One or more primary considerations may outweigh other primary considerations.
ISSUES
The issues to be resolved in this case are:
(a)whether Mr Bou passes the character test set out in section 501(6) of the Act; and
(b)if not, whether the discretion in section 501(2) of the Act to cancel his visa should be exercised, after applying the considerations at Part A of the Direction to the specific circumstances of his case.
CONTENTIONS
Applicant’s Contentions
Mr Bou accepts through his legal representatives that he has a substantial criminal record and therefore does not pass the character test.[5] He contends, however, that notwithstanding the seriousness of his past offences, there is a proper basis for the Tribunal to exercise the discretion under section 501(2) of the Act in his favour. He submits that his two young children need his care and support and, in light of his family’s limited financial means, removal to Cambodia is effectively a ‘permanent separation.’[6] He states that because he has lived in Australia since 2000, coupled with his epilepsy and other health-related issues, a ‘greater degree of tolerance should be extended to him than might otherwise be the case.’[7] He submits that removal to Cambodia, where he does not have the same level of income and health support, nor capacity to find employment, is a particularly harsh consequence.
[5] Applicant’s Statement of Facts and Contentions dated 27 November 2017, paragraph 7.
[6] Ibid, paragraph 26.
[7] Ibid, paragraph 27.
Respondent’s Contentions
The Respondent contends that Mr Bou does not pass the character test and that the discretion under section 501(2) of the Act should be exercised to cancel his visa.
CONSIDERATION – DOES MR BOU FAIL THE CHARACTER TEST?
Lander J (Carr and Sundberg JJ concurring) of the Full Court of the Federal Court of Australia explained the nexus between the character test and Parliament’s intent in Akpata:[8]
The definition of a person passing the character test in s 501(6) shows that Parliament intended that persons who have been convicted of relatively serious crime; associate with criminals; have a history including an immediate history of criminal conduct or general conduct indicating bad character; are a significant risk of engaging in criminal conduct or undesirable conduct (s 501(6)(d)), should not be permitted to travel to or remain in Australia. Shortly put, persons who have committed or are likely to commit criminal or other like conduct should not be permitted to travel to or remain in Australia. Because the purpose is to exclude those persons, the matters that are relevant to the exercise of the Minister’s discretion will include any fact or circumstance which would suggest that a person of otherwise bad character (as it is defined in the Act) should be allowed to travel to or remain in Australia.
[8] Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65 at [105].
Having regard to Mr Bou’s criminal history, which includes sentences of two or more terms of imprisonment, where the total of those terms is 12 months or more, I am satisfied that he has a substantial criminal record within the meaning of section 501(7)(d) of the Act. I find that Mr Bou does not pass the character test. Having made that finding, I must make a supervening determination regarding the discretion granted under section 501(2) of the Act, which requires application of the considerations in Part A of the Direction, to the specific circumstances of his case.
WITNESS EVIDENCE
Evidence of Mr Bou and His Family
Mr Bou, his mother, his godmother, and the biological aunt of his step-brothers (a close family friend) submitted statements and gave oral evidence at the hearing as follows:
(a)Evidence of Mr Chanphanna Bou.
(i)I have had regard for Mr Bou’s Statutory Declaration, which was taken into evidence.[9] He also gave oral evidence at the hearing with the assistance of a Cambodian interpreter and was cross-examined.
[9] Statement of Mr Chanphanna Bou dated 24 November 2017 (Exhibit A1).
(ii)Mr Bou said he had never worked since arriving in Australia and receives a Disability Support Pension. He submits that he has not returned to Cambodia since 2000 and apart from his grandmother and approximately 5-6 aunts and uncles, has no other relatives there. He submits that he has not been in contact with his Cambodian relatives or school friends, whose contact details he has lost. Mr Bou stated that his grandmother is almost 80 years of age and ‘couldn’t do much’ because of her health. When asked if he could live with her if returned to Cambodia, Mr Bou replied: ‘only her – I don’t have anybody else,’ but he expressed concern that if he ‘became sick, who can look after me?’
(iii)Mr Bou was taken through his criminal history, but often responded that he was unable to remember due to his epilepsy or the passage of time. When asked about a violent incident he was involved in requiring police attendance in January 2008, he stated: ‘I don’t know what I did – I went out with my friends – I forgot what I did.’ When asked if he could remember repeatedly punching his mother in the face and head during that incident, Mr Bou replied ‘I can’t remember that.’ When asked if he had taken up a knife during this incident, he responded: ‘it was a long time ago, I don’t remember.’ Mr Bou was also unable to recall many of the circumstances relating to his offending in 2011 and 2015, but was able to recall an incident in June 2015, when he chased his stepfather from the house with a meat cleaver. He stated: ‘Yes I remember that, but I didn’t chop him, I just chased him.’ Mr Bou was also taken through his breach of a Family Violence Safety Notice in late 2015, responding that he had breached it because ‘I missed my mum and I wanted to see her and see my daughter and son.’ When asked why he stopped attending court-ordered sessions linked to his Community Corrections Order (CCO) after only a few meetings, he replied ‘I can’t remember.’ In relation to an incident in September 2016 where he was heard yelling aggressively at his mother while holding a machete, Mr Bou responded: ‘I just wanted the whole family to be quiet.’
(iv)Mr Bou was asked why he wasn’t released from prison when eligible for parole in December 2016, responding that he couldn’t read English and had not been told about bail applications. When it was pointed out to him that his parole application was in the Corrections Victoria file, Mr Bou agreed he had applied for parole with the assistance of ‘Legal Aid.’ Mr Bou also agreed that Corrections Victoria had recorded his involvement in verbal and physical aggression on a number of occasions while imprisoned, and that he had been assessed by prison authorities as being a high risk of re-offending. In response to questions about an incident on 6 June 2017 where he struck another prisoner in the head while holding pool balls, Mr Bou responded:
‘If I don’t do that he’ll hit me. I can’t just stand there – he’s the one who said something to make me angry – teasing me…they tease me all those Aussie people.’
(v)Mr Bou submitted that ‘living in prison is like living in the dark…if I don’t protect myself they will keep attacking me or bullying me.’ When asked if he had gotten angry and decided to hit the other prisoner, Mr Bou responded ‘yes,’ contending that ‘all those problems in prison making my anger getting worse…’. When asked why he had become angry in prison, Mr Bou said he wanted to come out and see his family, but in prison he couldn’t do anything. When asked if he felt angry often, Mr Bou responded: ‘yes, when someone comes to try and talk to me, but I try and close my mouth and not talk.’ Mr Bou submitted that he had not completed any rehabilitation courses relating to drugs, alcohol or anger management in the past.
(vi)When asked about reports from his general practitioner about non-compliance with epilepsy medication, Mr Bou stated that he sometimes forgot to take it, but now took it daily.[10] In response to questions about his alcohol use, Mr Bou initially said he only drank occasionally and ‘not until drunk.’ In response to subsequent questions, however, he agreed that his consumption of alcohol in the past had resulted in a pattern of alcoholic blackouts. When asked why he had denied alcohol problems while in prison, he stated ‘they didn’t ask me about alcohol.’ When it was pointed out that Corrections Victoria had noted on 8 November 2016 that Mr Bou ‘denied any history of problematic alcohol use,’ Mr Bou responded: ‘I forget – it was a long time ago.’
[10] General Practitioner reports contained within Exhibit A11.
(vii)Mr Bou was also referred to a St Vincent’s Hospital discharge summary, which states: ‘’…displays some anger when discussing his victims. Says that he has trouble managing his anger but will try to do so.’[11] Mr Bou acknowledged the report and his inability to control his anger while in prison, but stated: ‘now I don’t have any trouble controlling my anger anymore. I know how to control it.’ In relation to conflict with his three step-brothers, Mr Bou said he felt no anger towards them and even though plans were in place to keep him separated from his step-brothers, he claimed not to ‘have any problems’ with them.
[11] Exhibit A11, p.31. St Vincent’s Hospital discharge summary dated 11 September 2017.
(viii)Mr Bou said he had no contact with his former wife and that arrangements to see his children were coordinated by his mother. He said he had not seen his children for ‘over two weeks,’ since they had visited him in the detention centre. When given an opportunity to describe his relationship with his children, Mr Bou responded: ‘I like to ask them what they like to play and I play with them.’ In response to questions, Mr Bou was ‘not sure’ if his former wife had formed another relationship. He ‘forgot’ what grade his children were at in school or when he last took them to the movies, or what they saw. He was ‘not sure’ about the financial contribution he made to the living expenses of his children. If allowed to remain in Australia, Mr Bou said he would stop taking heroin, would only drink alcohol occasionally, avoid contact with his step-brothers, change ‘past mistakes to do good things,’ and see his children more frequently.
(b)Evidence of Ms Mary Bou.
(i)A Statutory Declaration from Ms Mary Bou, the Applicant’s mother, was taken into evidence.[12] She also gave oral evidence at the hearing with the assistance of a Cambodian interpreter. Ms Bou is a 59 year old woman who lives with her three male children aged 23, 25 and 27. They are all employed and assist their mother financially with rent, expenses and with requirements like attending medical appointments. She submits that her health has deteriorated in recent years, resulting in the payment of a Disability Support Pension since October 2014. Ms Bou currently suffers from a serious illness requiring chemotherapy.[13] Although Mr Bou does not live with his mother and step-brothers, Ms Bou contends he is ‘the only child that has constantly and unwaveringly provided…emotional and material support.’ As a consequence she has ‘become extensively reliant upon’ him and ‘cannot live without him.’[14] She states that Mr Bou visits her home frequently to complete daily household chores like cleaning and tidying the house, and gives her $150-200 fortnightly from his Disability Support Pension. She submits that since Mr Bou’s detention she has experienced great emotional distress with ‘suicidal thoughts every night’ at the prospect of his absence from her life, stating: ‘If he goes back I will be very stressed, depressed…I will kill myself.’[15] Ms Bou worries about her son’s physical and psychological health if returned to Cambodia due to the absence of medical, social and financial support, fearing his epilepsy will be left untreated and he will become homeless. Ms Bou states that her elderly mother lives alone in a commune a little outside of Phnom Penh, supported by a neighbour, nephews and nieces who visit occasionally. She sends money to her mother at times, describing her as ‘very frail and alone.’ She submits that the 5-6 aunts and uncles referred to by Mr Bou are her mother’s younger siblings. She considers that if her son is returned to Cambodia, contact will be difficult as it is unlikely he could regularly access a mobile phone or the internet.
[12] Statutory Declaration of Ms Mary Bou dated 23 November 2017 and bundle of medical documents from Monash Health (Exhibit A2).
[13] I note in this regard a bundle of medical documents from Monash health, including appointments with the Oncology Outpatient Clinic.
[14] Ibid, paragraph 7.
[15] At paragraph 11 of her Statutory Declaration, Ms Bou states: Without his constant presence and support in my life, I want to hang myself.
(ii)If her son is allowed to remain in Australia, Ms Bou submits that she has made arrangements for him to live in the spare bedroom of her friend, Ms Hung Song, who is Mr Bou’s godmother, until other rental accommodation can be arranged. She submits that after being released on bail, Mr Bou previously lived with Ms Song, her husband and their son, who helped him ‘gain some insight into his behaviour.’ Ms Bou believes that if her son receives ‘continuous medical assistance’ and lives with Ms Song, he is less likely to re-offend. She submits that is partly because he will be ‘separated from his three step-brothers, thereby preventing any provocation...’[16] Ms Bou contends that her other three sons, who are currently employed, will assist with the bond for separate rental accommodation for herself and the Applicant. Ms Bou’s sons did not attend the hearing and when asked about their relationship with the Applicant, she replied: ‘I haven’t heard them talking.’ When asked if she was concerned that Mr Bou would become angry again with his step-brothers, Ms Bou responded: ‘Yes, that’s what I’m afraid of,’ contending it was best that she lived in separate accommodation with Mr Bou away from his three step-brothers. She said that their combined DSP payments were sufficient to pay the rent on a separate, small apartment and the two of them would look after each other.
[16] Ibid, paragraph 21.
(iii)Ms Bou attests to the close relationship between her son and his two children, stating he was ‘committed to seeing his children every weekend,’ taught them about Cambodia’s history and instilled values in them ‘such as being responsible, hardworking and honest.’ She submits the children have felt Mr Bou’s absence since his imprisonment and detention, contending they ‘need the constant presence of both their mother and father.’ She stated at the hearing that a member of her family collected Mr Bou’s children every Friday after to school to facilitate his access visits and that she coordinated those arrangements with Mr Bou’s former wife. Ms Bou said she had not taken the children to visit their father in jail, but had done so at the detention centre.
(iv)Ms Bou said that she loves her son very much and expressed her commitment to look after him and ensure he receives all of the support needed to live a stable and peaceful life.
(c)Evidence of Mr Mandy Ear and Mr Veng Hong Ear.
(i)An undated statement from Mr Mandy Ear, the Applicant’s step-brother was accepted into evidence.[17] He submits in his statement that it makes him sad to see Mr Bou separated from his two children. He says his mother is so distressed by her son’s situation that she cries every day. He states ‘please don’t take away my brother he has not done anything bad to hurt anyone.’
(ii)A statement from Mr Veng Hong Ear, another step-brother of the Applicant, was accepted into evidence.[18] He submits in his statement that the Department of Immigration should release Mr Bou from detention, because if he is returned to Cambodia, their ‘family life will not be normal.’ He contends that Mr Bou has never harmed anyone in the community, but that they sometimes argue, which Mr Ear attributed to Mr Bou’s epilepsy and stress.
(iii)The Applicant’s step-brothers were not available for cross-examination. Their statements are of a very general nature and their assertion that Mr Bao has never hurt anyone in the community is clearly erroneous. I therefore place little weight on their evidence.
(d)Evidence of Ms Hung Song.
(i)A Statutory Declaration from Ms Hung Song, the Applicant’s godmother was accepted into evidence.[19] She is 65 years of age and lives with her husband and 22 year-old son. Ms Song states she has a very close association with the Bou family, is best friends with the Applicant’s mother, and considers the Applicant to be her ‘second son.’ She is aware of Mr Bou’s struggle with ‘drug addiction…[and] the effect of his substance abuse on his behaviour.’ Ms Song submits that her family rents a three-bedroom house and that Mr Bou resided for some weeks in their spare bedroom after being released on bail in September 2017. She contends he was pleasant to live with and confided in her family about his offending, allowing him to develop some insight into his behaviour.
(ii)Ms Song states that she and her family are committed to providing Mr Bou with accommodation and social support for as long as required. She believes this will help prevent him from re-offending and ‘help keep his life on track,’ because he will be ‘physically separate from his three step-brothers, thus avoiding the occurrence of confrontation.’
(e)Evidence of Ms Sonny Kim. A Statutory Declaration from Ms Sonny Kim, the biological aunt of Mr Bou’s step-brothers was accepted into evidence.[20] Ms Kim says she has enjoyed a close relationship with Mr Bou since 2006 and visits his mother daily. Prior to Mr Bou’s detention, she claims to have seen him ‘every day as he used to help Mary with house work.’ Ms Kim submits she is aware of Mr Bou’s epilepsy and struggle with substance abuse, and that her family has provided him with social support in the past. She claims to have visited Mr Bou in detention a few times, finds his situation ‘heart breaking’ and believes he should be with his family and two children. Ms Kim contends that if Mr Bou received ‘continuous medical assistance,’ she would do her best to help. She contended that Mr Bou had learned a lot from being imprisoned, but that it was important he lived separately from his step-brothers, who he was jealous of.
[17] Exhibit A7.
[18] Exhibit A8.
[19] Exhibit A3.
[20] Exhibit A4.
Expert Medical Evidence

A report from psychologist Mr Tim Watson-Munro dated 20 November 2017 was accepted into evidence.[21] Mr Watson-Munro met with Mr Bou on 3 November 2017. He also spoke with Mr Bou’s two children, his mother, and Ms Kim during a home visit on 11 November 2017. Mr Watson-Munro’s opinion is reproduced in part below:
[21] Exhibit A5.
Due to language restrictions, no formal psychometric testing was undertaken on this occasion…
…
The relevant clinical issues in this case relate to long-standing Epilepsy, which has been poorly managed in the past, a Substance Misuse Disorder referable to heroin and alcohol, as well as significant psychological problems arising from these issues. His epilepsy has precluded any form of employment and indeed interfered with his education when he arrived in Australia in 1999. He has been on a Disability Support Pension for many years and understandably has been highly depressed about his circumstances over the years. This is amply demonstrated in his expressions of despair at being unable to work or drive, or indeed really have much of a life beyond staying at home.
He acknowledged a pattern of heroin use over the years, although his primary problems appear to relate to alcohol. His substance misuse has impacted upon the efficacy of his Epilim medication. It is significant and as noted in the report of the Monash Medical Centre (Neurology Department) dated 28 May 2015, that during a period of abstinence and compliance with his medication he had no seizures. This clearly speaks to the need for regular monitoring, supervision and treatment beyond medication in this case. This seems to have been singularly lacking in terms of his overall management whilst in the community.
The documents further speak to the consequences of not complying with medication as reflected in numerous attendances…arising from seizures. Against this backdrop, his family’s concern is genuine and entirely understandable and no doubt contributed to the escalating tensions in the home prior to his offending.
That said, the family has now forgiven him and are mortified by the prospect of him being forced to leave the country. This will impact upon not only your client but in addition his two young children who are desperate for him to return home and his mother who was in poor health. She is supported to an extent by her other children, although it would seem that the primary bond in terms of the care relates to Mr Bou.
Mr Bou has reflected long and hard about his situation and the process which has led to his current predicament. He has now been drug and alcohol free for in excess of a year and in this context is in a state of remission. He has clearer insight to the dynamics regarding the need for him to comply with medication in a drug and alcohol free state and the consequences which will accrue if he does not abide by these strictures. In addition, he expressed a desire for professional assistance at a psychological level. This could be facilitated within the community locating a therapist who is fluent in Cambodian. Treatment can focus upon the development of relapse prevention strategies, in addition to supportive and motivational psychotherapy concerning his depression and feelings of despair regarding the future. He will once again enjoy regular contact with his children at his house rather than a penal or custodial environment and in order to maintain his motivation, he could undertake regular urinalysis.
I note that you seek my opinion regarding this man’s risk of reoffending. I note a prior forensic history, although it would appear that the sentence which he has recently completed has been his first exposure to the harsh realities of jail. His insight arising from this has been galvanised by his current placement at Maribyrnong Immigration Detention Centre. This has reinforced his motivation to be more compliant with treatment considerations and of equal significance, his desire to cease substance misuse. This relates to not only heroin but also alcohol. It is clear from the medical documentation and indeed as reflected through discussions with his family, that in the absence of drug and alcohol use, his behaviour dramatically improves and his epilepsy is stable. The absence of seizures provides a greater sense of comfort for the family, whereby reducing internecine tensions within the household. Consequently, it is arguable that with treatment, involving total abstinence from drugs and alcohol, support and motivational psychotherapy, as well as the structure afforded to him within the family constellation, the likelihood of him reoffending is remote.
Mr Bou clearly understands the consequences which will accrue both medically, psychologically and logistically referable to deportation if he reoffends in any way.
In the alternative, he will clearly struggle in Cambodia. Epilepsy is an unremitting condition which even in Australia, with considerable medical attention and supervision, has been poorly managed by him. He will lose any form of income benefits derived in this country and consequently he will be highly vulnerable and at risk of serious illness if not worse. His family will suffer a great deal and in particular his children who are fretting for him.
I note beyond the current offending which led to his incarceration there was no suggestion of broader criminality, which in my view suggests that with continuing support, supervision and treatment, the gains that he has made will continue and be consolidated in terms of his overall prognosis.
Mr Watson-Munro gave oral evidence at the hearing and was cross-examined. He submits that Mr Bou has complex medical and psychological problems, with no evidence that he had received appropriate therapy for issues like substance abuse, anger management and impulse control. When asked why this was not provided during Mr Bou’s imprisonment, Mr Watson-Munro said rehabilitation courses ‘were hard to get in prison,’ and the ‘logistics of custodial life’ was such that there was a ‘long waiting list’ for psychological support. In response to questions about Mr Bou’s denials regarding heroin addiction and alcohol misuse, Mr Watson-Munro said that a level of denial was very common in addicts, but Mr Bou’s level of heroin and alcohol ingestion was ‘troubling’ and agreed ‘it would be better if [Mr Bou] had better insight into his problems.’ He submitted that Mr Bou had ‘detoxified’ from heroin and alcohol while in custody and that his judgement was currently ‘better and stronger.’ In relation to Mr Bou’s misconduct in prison, Mr Watson-Munro said this was unsurprising given the absence of treatment and the hostile nature of prison environments. While he had no personal knowledge of these incidents, he opined the situation may have been exacerbated by Mr Bou’s status as the ‘solitary Cambodian’ in prison and bullying by other inmates.
Mr Watson-Munro said Mr Bou’s risk of re-offending depended on compliance with the conditions identified in his report. He considered that if Mr Bou was more compliant with his medication and remained drug and alcohol free, his associated psychological problems would ease, hence reducing his likelihood of acting impulsively and offending.[22] If Mr Bou was in his care, Mr Watson-Munro said he would recommend periodic breathalyser and urinalysis tests to monitor compliance. He felt that Mr Bou had reflected on his situation while in prison and now better understood the implications of any further offending. Mr Watson-Munro said he was not surprised by Corrections Victoria’s ‘High’ assessment regarding Mr Bou’s risk of re-offending, characterising their approach as ‘actuarial’ in nature. He agreed, however, that if Mr Bou did not totally abstain from drugs and alcohol, or receive supervised treatment and motivational therapy from a therapist fluent in Cambodian, or maintain separation from his step-brothers, or if a strong family support structure was not provided, Mr Bou’s prospect of offending would be greater. He stated: ‘all those things are necessary to ensure compliance.’
PRIMARY CONSIDERATION A: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
[22] Exhibit A5, p.10.
Paragraph 9.1 of the Direction states:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2)Decision-makers should also 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 conduct
Paragraph 9.1.1(1) of the Direction sets out factors that I must have regard to in determining the nature and seriousness of Mr Bou’s offending or other conduct. Those factors include: violent crimes are viewed very seriously; the sentence imposed by the courts for a crime or crimes; the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness; and the cumulative effect of repeated offending.
Violent crimes are viewed seriously
Although Mr Bou was sentenced to a term of imprisonment for his initial offences in January 2011, that sentence was wholly suspended and the first term of actual imprisonment followed his 2016 convictions. His criminal history shows a concerning number of violent offences in which he armed himself variously with a knife, meat-cleaver and machete. His initial convictions included two charges of ‘Recklessly cause injury,’ which was followed by three convictions for assault with a weapon on 10 June 2015, 11 January 2016 and 2 November 2016. The 2011 convictions relate to serious assaults by Mr Bou against his mother and her then partner in 2008. His mother is an elderly member of our community and in that respect, Mr Bou’s offending can be considered an assault upon a vulnerable citizen, under section 9.1.1(1)(b) of the Direction. The circumstances of this assault are elaborated upon in an Incident Summary Report by Victoria Police dated 10 January 2008, which was tendered into evidence by the Respondent.[23] The Report states in part:
The Defendant is the son of the AFM[24] and they live together at…
At approximately…the AFM and the defendant had an argument over money. The Defendant has started to hit the AFM in the face repeatedly. The Defendant then pushed the AFM to the ground, grabbed her by the throat and continued punching her in the head and face. A friend off the AFM has then pulled the Defendant off the AFM and then took the Defendant outside. The Defendant…went back inside the residence and went itno [sic] the AFM’s bedroom where the AFM had moved to. The Defendant once again started to yell at the AFM and punch her in the face. The family friend has once again pulled the Defendant off of the AFM and took him outside for about two minutes. The Defendant went back inside and went into the kitchen. The Defendant then picked up a knife and went into the AFM’s bedroom and said to the AFM, “If you want to kill me kill me, if you don’t I will kill myself.” The AFM took the knife off the Defendant and the family friend once again took the Defendant outside. Police arrived at this stage. The AFM sustained extensive bruising to her face, bruising on her body and had a large patch of hair pulled out.
[23] Exhibit R2.
[24] AFM in Victoria Police Reports is an acronym for Aggrieved Family Member – in this case, Ms Mary Bou.
Mr Bou was also convicted of three other offences with a violent dimension, namely ‘Threat to inflict serious injury,’ on 10 June 2015, 11 January 2016, and 2 November 2016. On 2 November 2016 the sentencing Magistrate provided this summary in relation to Mr Bou’s violent offending:
…he’s got a prior history now, going back eight years…On this occasion, he used a machete. He previously used a meat cleaver and he’s previously used a knife.[25]
[25] Transcript, The Police v Chanphanna Bou, Magistrates’ Court Dandenong, 2 November 2016, p.4.
His Honour went on to say:
Mr Bou…you pleaded guilty to a charge of breaching an intervention order. That event occurred on 20 September of this year where following a disturbance in your house the police were called. When you became aware the police were called you went to the garage, you took possession of a machete and you waved it in a way that raised concern for the affected or protected person. You were arrested the following day on Chandler Road. In your possession was a small quantity of heroin.
…
Also before the court today is a breach of a community corrections order. That breach relates to a community corrections order that you were initially placed on in 2015. The offences the community corrections order related to are charges of threat to inflict serious injury and assault with a weapon. You have also since been initially put on the community corrections order breached a family violence safety notice twice, in December 2015 and breached a final family violence intervention order in January of this year.
In January of this year, the community corrections order was heard by way of a breach hearing. It was varied and you were ordered to continue on that community corrections order for a period of 12 months. You attended on four occasions, and essentially the Office of Corrections had no contact with you when you started breaching the order one month later.
…
…you have struggled with drugs for some time and weighing against that you have been continually breaching family violence intervention orders, and then on the last three occasions in breaching those orders you have armed yourself with a machete, a meat cleaver, and a knife.
I am going to sentence you to 12 months’ imprisonment and order that you be eligible for parole within three months’. Had you not pleaded guilty I would have sentenced you to 14 months imprisonment with a non-parole period of eight months.
…the only way to manage the risk of you reoffending is to a parole order now as I am not confident that a further community corrections order sufficiently protects your family from you committing further family violence.
…
On the charges of threat to inflict serious injury and assault with a weapon, you are sentenced to an aggregate term of imprisonment of six months.
In relation to the contravention of the community corrections order, you are sentenced to one month imprisonment…
On the charge of breaching a family violence intervention order…you are sentenced to 6 months’ imprisonment.
On the charge of possess heroin, you are charged [sic] to one month imprisonment…
Sentence imposed by the Courts
I have had regard for the comments favourable to Mr Bou at his court appearances, including the challenges he has experienced since arrival in Australia. Magistrate Connellan, in the Certified Extract for Mr Bou’s appearance at the Dandenong Magistrates’ Court on 20 January 2011, noted that Mr Bou had a borderline intellectual disability and his moral culpability must therefore be reduced as a consequence.[26] The Magistrate at his November 2016 court appearance also acknowledged Mr Bou’s ‘potential intellectual disability…epilepsy which is significant,’ social isolation, and drug use.[27] The sentencing Magistrate also noted the ‘social and cultural dislocation’ Mr Bou experienced as ‘a 15-year-old coming to this country in 2000’ and leaving what was probably a very strong relationship with his grandmother in Cambodia, which could ‘create so many issues for a young person.’[28]
[26] Exhibit R2.
[27] Exhibit R1, p.40.
[28] Exhibit R1, p.45.
But notwithstanding those factors, the seriousness and repeated nature of Mr Bou’s offending was such that sentences of imprisonment were imposed, which is the last resort in the sentencing options available to Australian courts. Although the courts initially dealt with Mr Bou’s offending in 2011 through a suspended sentence of imprisonment, and then in 2015 through community corrections orders (CCO), fines, and unpaid community work, the presiding Magistrate in 2016 noted these were insufficient to deter him from committing further violence:
…if he didn’t have priors that he does with weapons I’d be with you but I’m not too sure because a CCO is just so dependent on the accused complying with it…I mean he hasn’t complied, he had three meetings with them, he dropped off in February and Corrections initiated a breach… He had not been compliant since February and you can just see the elevation of the risks to the victim during that period… He’s not turning up to anything, he’s not turning up for supervision, treatment, I mean basically - he’s had three months to comply, he didn’t.
I note the Full Court of the Australian Federal Court has previously held that sentences of imprisonment, even if fully suspended, are nevertheless regarded as a very serious form of punishment.[29] I also note that had Mr Bou not pleaded guilty at his 2016 court appearance, the sentencing Magistrate intended to sentence him ‘to 14 months’ imprisonment with a non-parole period of eight months.’[30]
[29] See, for example, Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146 at [184]).
[30] Exhibit R1, p.48.
Frequency of offending and trend of increasing seriousness
After an approximate four-and-a-half year gap between his initial convictions in 2011 and those in 2015, the frequency of Mr Bou’s offending increased, with convictions six months later in December 2015, then January 2016, and finally November 2016. As a consequence of being found guilty of breaching court orders and committing further violent offences, the courts felt it necessary to imprison him. The sentencing judge’s remarks on 2 November 2016 elaborate upon this issue:
But then, aren’t the victims entitled to some protection? I mean if he’s having a difficult [sic] on a CCO and on parole, doesn’t that increase the risk of further family violence as demonstrated. He was on the CCO in 2015 and he’d breached the family violence intervention order or safety notice twice in December. He’s then before the court again on 11 January.
Consideration
The evidence reflects the repeat nature of Mr Bou’s offending, the heightened risk to his victims, and recurring costs incurred by law enforcement and the courts in managing the consequences of his criminal conduct. Although Mr Bou’s offences have primarily been committed against members of his own family, including his mother, this in no way mitigates their seriousness. I find that his criminal conduct over a six-year period is very serious in that he has caused and threatened harm to members of the Australian community.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 9.1.2 of the Direction states:
(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle 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.
(2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(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 their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of potential future harm

The violent and repetitive nature of Mr Bou’s offending, his failure to complete the rehabilitation requirements of his CCOs, and misconduct in prison, gives rise to concerns about further offending. That is particularly so given his previous dependence on heroin, alcohol misuse, and the involvement of weapons in his offences. The latter in particular exacerbates concerns about the potential for serious injury. Moreover, Mr Bou’s contention to psychologist Mr Watson-Munro that he was not addicted to heroin, and to prison authorities that he did not have an alcohol misuse problem, reflects an unwillingness to fully accept the consequences arising from his substance abuse. I have noted Mr Watson-Munro’s evidence in this regard that a level of denial was very common in addicts. If Mr Bou was again to engage in the sort of violent behaviour that led to his convictions, the potential consequences to victims, from a law and order, public health and social perspective are potentially very serious. I note in particular the sentencing remarks dealing with his 2016 offences, which referred to him arming himself with a machete on learning that police had been called, and the potentially ‘high’ risk identified by the sentencing Magistrate on 2 November 2016 regarding one of Mr Bou’s family members being seriously injured or killed:
Physical attendance is a very significant breach of an order because of the immediate risk to the victim…I don’t know how to get around this issue of weapons being used, knife, meat cleaver, machete…become a point where if he doesn’t stop or engage properly in treatment rehabilitation, the risk of a family member being seriously injured or killed is quite high.
Mr Bou attributes his CCO breaches to heroin use, which affected his capacity to prioritise and organise compliance with court orders. He contends that if given another opportunity, he will comply with orders in the future. But Mr Bou’s breach of his original CCO did not arise through a failure to prioritise or compliance with conditions, but through re-offending. He pleaded guilty to violent conduct against family members, which he said was because:
I was feeling bad about my brothers growing up and being successful. I was stupid and lashed out. I did not really mean it. I was stressed at the time and feeling frustrated.[31]
[31] Exhibit R1, p.57.
Likelihood of engaging in further criminal or other serious conduct
Mr Bou contends that he now has much better control of his temper, has ‘really grown up in jail,’ and is more mature. His evidence, however, is that he has not completed any rehabilitation courses relating to his substance abuse or anger issues.
In accordance with the Direction, I must consider information and evidence on the risk of the Applicant re-offending, giving appropriate weight to evidence from independent and authoritative sources. In this regard I note:
(a)A pre-release report dated 6 April 2017 by Corrections Victoria’s Sentence Management Unit, notes Mr Bou’s involvement in a concerning number of prison incidents.[32] By way of example, the report states:
(i)On 6 June 2017: ‘…Prisoner Bou walked backwards towards the pool table, then Prisoner Bou grabbed a couple of pool balls in his fist and began to strike Prisoner [redacted] in the head…’
(ii)On 1 May 2017: ‘…He began arguing with the Supervisor, who then placed cuffs on him for the escort. On the way to Eastern Chanphanna started to resist, pulling on the handcuffs, then shouting, stating that he was going to kill himself and the Supervisor.’
(iii)On 13 March 2017: ‘Prisoner Bou was in Officer’s Station yelling and being disruptive, he then returned to his cell where he slammed the door and began abusing the unit. Prisoner locked down under violence reduction program.’
(iv)On 18 November 2016: ‘Staff observed Prisoner Bou throw his remote for the TV to the floor and breaking [sic] it. He was instructed…to pick it up and hand back to the TO, which he refused and sais [sic] you pick it up. The broken item was removed from the cell by staff. Prisoner interviewed and informed he will face a GDH. Reports submitted. Duty Manager notified.’
(b)The report from Corrections Victoria states that a General Risk of Re-Offending Assessment had been completed, with Mr Bou’s level of risk assessed as ‘High.’ I note also a Parole Application Report by the Sentence Management Unit dated 2 May 2017, which states in part:[33]
‘Chanphanna has been identified as a serious violent offender…Chanphanna’s risk of reoffending as per the LS/RNR is high. Chanphanna does not have sufficient time in his sentence to complete treatment programs. During his current term of incarceration Chanphanna has been involved in a number of incidents such as verbal aggression and threatening…’
[32] Exhibit R2, Attachment C.
[33] Ibid.
In considering the more recent report by Mr Watson-Munro about Mr Bou’s risk of re-offending, I note in particular the highly conditional nature of his assessment. He states that Mr Bou ‘requires more intensive professional supervision’ in managing his epilepsy, compliance with medication, and in treating longstanding psychological issues.[34] Although he states that Mr Bou’s risk of re-offending is arguably ‘remote,’[35] that opinion is conditional on his receiving more intensive professional supervision, total abstinence from drugs and alcohol, close family support, and engagement in motivational psychotherapy provided by a ‘Psychologist who is fluent in Cambodian.’[36] There is no evidence before me, however, as to whether the services Mr Bou may need to assist his rehabilitation into the future are available. Moreover, Mr Watson-Munro agrees that Mr Bou’s risk of re-offending is greater in the absence of any of these factors. I also remain concerned about Mr Bou’s denials regarding his heroin addiction and alcohol misuse, despite previously admitting to a five-year history of heroin use,[37] the ability to ingest ‘up to half a point per day at his peak’[38] and alcoholic blackouts. I note also that in November 2016 the sentencing Magistrate referred to a record of violent offending, which pre-dated Mr Bou’s five year history of heroin use: ‘…you’ve got offending now going back to 2008.’ Given Mr Bou’s eight year history of offending, there is an approximate three year period from 2008-2011 where his criminal conduct does not appear to be linked to heroin use. Mr Watson-Munro’s opines that alcohol was likely the main catalyst for his offending at that time.
[34] Exhibit A5, p.4.
[35] Ibid, p.13.
[36] Ibid, p.4.
[37] Transcript, The Police v Chanphanna Bou, Magistrates’ Court Dandenong, 2 November 2016, p.3.
[38] Ibid, p.5.
I note a report by Corrections Victoria’s Case Management Review Committee dated 16 April 2017, stating that Mr Bou ‘denied any history of problematic alcohol se [sic]....’ This denial is inconsistent with the findings of Mr Watson-Munro. At the hearing, Mr Bou agreed that he had a heroin addiction and a problem with alcohol. The evidence shows that he did not become abstinent from either heroin or alcohol until being imprisoned.[39] Given that Mr Bou was subsequently taken into immigration detention after release from prison, any benefits resulting from either heroin or alcohol abstinence, or the beneficial effects he contends have resulted from his incarceration, are yet to be tested in the community. In that regard I note paragraph 9.1.2(2)(b)(ii) of the Direction states I must take into account ‘evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).’
[39] Exhibit A5, p.5.
Consideration
The Direction implicitly acknowledges the Australian community will accept some risk regarding the conduct of non-citizens, depending on its seriousness. The Australian community expects that people will be given a chance to redeem themselves and realign their behaviour with expected social norms. That is evident from provisions in Australia’s criminal justice system. In Mr Bou’s case, he has been afforded a number of opportunities to redeem himself and engage in the rehabilitative opportunities associated with non-custodial sentences in particular, but has chosen instead to commit further violent offences.
It is difficult to reconcile Mr Bou’s claims that imprisonment has had a salutary effect on him given his involvement in the incidents recorded by Corrections Victoria. Moreover, the situational circumstances Mr Bou would return to if allowed to remain in Australia appear relatively unchanged. While I do not doubt the love his mother has for him and her intent to try and provide a supportive family environment commensurate with his needs, the specific circumstances of this case leave me unconvinced regarding an acceptable reduction in Mr Bou’s risk of re-offending. There is a dearth of evidence regarding rehabilitation, and the conflict between Mr Bou and his step-brothers is intended to be managed by maintaining physical separation between them.
I have had regard for the circumstances in which Mr Bou contends his offending occurred and have noted his submissions, which demonstrate some insight into his criminal conduct. But I find that his repetitive violent offences and breaches of intervention orders reflect a concerning pattern of behaviour and that there is an ongoing risk he will re-offend. This finding is informed by the comments of the presiding Magistrate at his November 2016 sentencing, Corrections Victoria’s ‘High’ risk assessment, the conditional nature of Mr Watson-Munro’s opinion, Mr Bou’s lack of insight into his conduct, and his inconsistent evidence regarding the extent of his addiction on heroin and alcohol. These lead me to conclude that the risk of harm he poses to the Australian community is unacceptably high.
Mindful of the framework principles and after considering the nature and seriousness of Mr Bou’s criminal conduct, coupled with an assessment of the risk he poses to the Australian community, I find that primary consideration A weighs heavily in favour of cancelling his visa.
PRIMARY CONSIDERATION B: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 9.2 of the Direction requires that I consider whether the cancellation of Mr Bou’s visa application is, or is not, in the best interests of minor children in Australia affected by the decision. Paragraph 9.2(2) provides that this consideration only applies if the child is under 18 years old at the time when the decision to cancel a visa is expected to be made. Paragraph 9.2(3) requires that the best interests of each child should be given individual consideration to the extent that their interests may differ. Paragraph 9.2(4) sets out factors that must be considered regarding the best interests of a child where relevant.
Mr Bou has two biological children; a daughter and a son who are both Australian citizens and under 18 years of age. Given that the children’s best interests are affected by cancellation of Mr Bou’s visa, primary consideration B clearly applies in this case.
Mr Bou is divorced and states in his Personal Circumstances Form that he does not know the current address of his former wife, who is the primary carer of their children. He stated at hearing that he has not had any contact with her for a long time. No evidence was adduced of any deficiency in his former wife’s parental role. Mr Bou contends that prior to his imprisonment he had access to his children on weekends with her consent. Arrangements for this access were organised by Mr Bou’s mother. He does not have any daily responsibilities in caring for his children, but submits that he teaches them about their ‘family history and cultural history of Cambodia.’ He says he also assists with discipline, encourages them to be honest and hardworking, and takes them shopping and to the movies. Mr Bou expresses concern that if he has to leave Australia, his children ‘will not have a strong male role model in their life’ and that ‘kids struggle more in life if their dads are not around.’
In his Personal Circumstances Form Mr Bou incorrectly stated the birthdates of his children as 2009 and 2012. During the hearing he had to refer to notes in responding to a question about their correct birthdates in 2006 and 2008. He is unaware of the school his children attend and his evidence was unconvincing in relation to his actual involvement in their lives.
Beyond the evidence of Mr Bou’s interaction with his children on weekends prior to his imprisonment, there is little evidence of his playing an active or meaningful role in their lives, or that he has been the strong male role model he aspires to be. To the contrary. The violent nature of his convictions since 2011 – particularly the repeat nature of offences against members of his own family, his history of heroin and alcohol use, and long periods of absence without meaningful contact, means that I am unable to reliably conclude Mr Bou will play a more positive parental role in the future. I particularly note that Mr Bou’s sense of responsibility towards his children has not so far been a protective factor in moderating his substance abuse or violent conduct, although I acknowledge it may assist him in the future. The evidence of Mr Bou is that he will have increased visitation with his children should he be allowed to remain in Australia. But there is no evidence about current or intended access arrangements from the children’s mother, who is their primary caregiver and did not attend the hearing or provide a statement.
Paragraph 9.2(4)(f) of the Direction requires that I have regard for any known views of a child, with those views being given due weight in accordance with the age and maturity of the child. In that regard I note a statement from Mr Bou’s eldest child, who is 11 years of age and states: ‘I am a wonderful and lovely daughter to my father Champanna [sic] Bou…I don’t want my father to be sent back to Cambodia because it effects my life…My dad is a good dad because he will always puts [sic] a warm smile on my face…without my father I feel sad…Please don’t send my dad to Cambodia because he doesn’t belong there. He belongs to a home with the family he loves, including me and my lovely younger brother.’[40]
[40] Exhibit A6, Statement dated 12 November 2017.
While I have no doubt Mr Bou loves his children and may wish to play a more significant role in their lives, the weight of evidence does not demonstrate that he has played a prominent role in their care and upbringing to date. I accept that if he was required to leave Australia, Mr Bou’s children would be denied easy access to their father, depriving them of the opportunity to maintain regular and meaningful contact. This would likely result in significant emotional hardship for them.
On balance I find that primary consideration B weighs somewhat in favour of not cancelling Mr Bou’s visa.
PRIMARY CONSIDERATION C: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
As Robertson J held in Uelese:[41]
‘…In my opinion it is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community and for the Tribunal to act on that statement.’
[41] Uelese v Minister for Immigration and Border Protection [2016] FCA 348; (2016) 69 AAR 8 at [65]; 22-23 per Robertson J.
Paragraph 9.3(1) of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Consistent with the Direction, there is an expectation in the Australian community that non-citizens will respect Australia’s laws and the Australian Government can and should cancel the visa of those who commit serious crimes in Australia or elsewhere.[42] In this regard I note the framework principles within the Direction highlight that the Australian community may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life or from a very young age.[43] In considering this primary consideration, I am mindful that the expectations of the Australian community are best determined with reference to ‘…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.’[44]
[42] Direction, paragraph 6.3(2).
[43] Ibid, paragraph 6.3(5).
[44] Re Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].
Mr Bou arrived in Australia just prior to his 15^th birthday and by 26 years of age, had been sentenced to a term of imprisonment, albeit wholly suspended. In the subsequent six years he was convicted of further violent and serious offences, most recently in November 2016. On each occasion he was afforded an opportunity to learn from the consequences of his conduct, strictly abide by court directions, and change his ways. Mr Bou has instead breached court orders and betrayed the Australian community’s trust by being convicted of further violent offences. I note that on one occasion Mr Bou armed himself with a machete after learning that the police had been called[45] and as previously detailed, his conduct while imprisoned reflects concerning instances of aggressive misconduct and violent behaviour. This demonstrates a disregard and disrespect for Australian laws, law enforcement agencies, and the corrections system.
[45] Exhibit R1, p.41.
I accept that Australia may afford a higher level of tolerance to Mr Bou given that he has lived in the Australian community for the last 17 years. But the violent and repeat nature of his offending, including against his own mother, unresolved substance abuse issues, and misconduct while imprisoned, is such that an informed, reasonable member of the Australian community would expect that Mr Bou should not continue to hold a visa. I find that primary consideration C weighs heavily in favour of cancelling Mr Bou’s visa.
OTHER CONSIDERATIONS
International Non-refoulement obligations
Paragraph 10.1(1) of the Direction requires consideration of whether returning Mr Bou to Cambodia would breach Australia’s obligation …not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. In response to the question on his Personal Circumstances Form: Do you have any concerns or fears about what would happen to you on return to your country of citizenship, Mr Bou ticked the box marked No. There is no evidence before me of international non-refoulement obligations being relevant to this case. It therefore follows that this consideration does not weigh in favour of or against the cancellation of Mr Bou’s visa.
Strength, nature and duration of ties
Reflecting the principles at paragraph 6.3 of the Direction, paragraph 10.2(1) requires that I have regard to:
a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of cancellation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

Mr Bou has established ties to Australia since arriving here in 2000 under his mother’s sponsorship. Prior to that he lived with his grandmother in Cambodia. He claims not to have known his biological father well. After arriving in Australia he initially resided with his mother, step-father and step-brothers. Two of his step-brothers are of Cambodian nationality and the third is an Australian citizen. He has received a Disability Support Pension (DSP) for some years and the evidence of his solicitor at the November 2016 court hearing is that he has never worked. Mr Bou submits that as a result of his epilepsy he cannot drive or work.
A statement in support of Mr Bou was provided by the President of the Cambodian Association of Victoria Inc., Mr Youhorn Chea,[46] which refers to Mr Bou having previously been ‘a very active member’ by assisting preparations for celebrations and helping to clean up afterwards. He refers to Mr Bou as a ‘reliable, honest and good citizen who helps his family to settle in Australia.’ Mr Chea’s character reference does not mention the duration of Mr Bou’s membership of the Association or his offending. The very general nature of the comments provided does not greatly assist judgements about Mr Bou’s contribution to the Australian community. Without reflecting at all on Mr Chea, I place little weight on his statement. I find that the evidence before me does not support a conclusion that Mr Bou has made a positive contribution to the Australian community within the meaning of paragraph 6.3(7) or 10.2(1)(a)(ii) of the Direction.
[46] Exhibit A9.
Mr Bou submits that his strongest links are with his mother and I have noted his submission that his mother would suffer emotional and financial hardship if he was not allowed to remain in Australia. While I have no doubt about the adverse emotional effect on his mother in that circumstance, the reference to financial hardship is less clear. Ms Mary Bou lives with her three sons who all work and who she submits provide her with financial assistance for rent and other expenses to supplement her DSP. While I accept that Mr Bou may make a financial contribution to his mother from his DSP payments, there is no evidence before me to the effect that she would suffer financial hardship if those contributions ceased.
It is clear from the evidence that Mr Bou does not enjoy a positive relationship with his step-brothers, noting the previous history of violent confrontation and at least one of them taking out a Family Violence Protection Order against Mr Bou. I note also the evidence of Mr Bou’s mother, his godmother, and Ms Sonny Kim who believe it is necessary to keep Mr Bou physically separated from his step-brothers to avoid further confrontation. If Mr Bou was permitted to remain in Australia, the strategy for managing that interpersonal conflict requires Ms Mary Bou to leave her current home and reside with the Applicant in new accommodation, which she states she is willing to do but which is yet to be arranged.
The evidence shows that the strength of Mr Bou’s ties to Australia and close relationship with his children, mother, godmother and Ms Sonny Kim have not mitigated his violent offending in the past. That said, I accept that those closest to him express a commitment to try and help him as much as they can in the future and would miss him very much if he was not permitted to remain in Australia. I note Mr Bou’s submission that he has many friends in Australia from many different communities who would also miss him, but no specific evidence was tendered in that regard.
On balance, I find that the consideration Strength, nature and duration of ties weighs against the cancellation of Mr Bou’s visa.
Impact on Australian business interests
Paragraph 10.3(1) of Direction states:
Impact on Australian business interests if the non-citizen’s visa is cancelled, noting that an employment link would generally only be given weight where visa cancellation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence that Australian business interests will be affected by cancellation of Mr Bou’s visa. It therefore follows that this consideration does not weigh in favour of or against the cancellation of his visa.
Impact on victims
Paragraph 10.4(1) of the Direction states:
Impact of a decision not to cancel a visa on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for visa cancellation has been afforded procedural fairness;
There is no specific evidence before me in relation to the impact on victims. It therefore follows that this consideration does not weigh in favour of or against the cancellation of Mr Bou’s visa.
Extent of impediments if removed
Paragraph 10.5(1) of the Direction requires that I consider:
(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) The non-citizen’s age and health;
b) Whether there are substantial language or cultural barriers; and
c) Any social, medical and/or economic support available to them in that country.
In his Personal Circumstances Form, Mr Bou advises he has epilepsy, for which he takes the anticonvulsant drug Epilim. In court on 2 November 2016 Mr Bou’s legal representative stated that while his ‘epilepsy is an ongoing issue,’ it was ‘essentially controlled.’[47] He also referred to a ‘dated report’ referring to Mr Bou’s ‘non-organic psychosis and some personality disorder – an emotional unstable personality disorder,’[48] as well as ‘registrations and admissions to various hospitals.’ His lawyer stated, however, that on the date of the court hearing he had spoken to Mr Bou who was ‘clear-headed, quite lucid, answered all questions directly and…was quite forthright in his answers…He has indicated…he does not want to go back to using heroin.’ At the current hearing, notwithstanding inconsistencies in some of Mr Bou’s responses and inability to recall the circumstances of much of his offending, Mr Bou was able to understand and respond to questions.
[47] Exhibit R1, p.38.
[48] In this regard I also note Mr Watson-Munro’s reference to a past history of Schizophrenia at p.6 and p.9 of Exhibit A5, referable to a history taken at the Emergency Department of the Dandenong Hospital on 9 September 2013.
In terms of language, Mr Bou’s lawyer at his 2016 court appearance stated that ‘he did his schooling in Cambodia but no schooling in Australia. He can’t read English and he essentially needs a Khmer interpreter.’[49] At the hearing Mr Bou was able to respond to some questions in English, but was clearly more comfortable conversing in Khmer. He retains a degree of familiarity with the culture and lifestyle in Cambodia, which he seeks to impart on his children.
[49] Ibid.
Mr Bou is still relatively young and spent the first approximately 15 years of his life in Cambodia before arriving in Australia in 2000. But after spending the last 17 years of his life here, he would undoubtedly encounter significant impediments if returned to Cambodia. This encompasses finding somewhere to live, providing for basic living expenses, and accessing healthcare for his epilepsy and mental health issues. It is unclear what income or healthcare support is available for Mr Bou in Cambodia, given it is one of the poorest countries in Asia.[50] Based on publicly-available information, human development, particularly in the area of health, remains an unresolved development priority for Cambodia. I have also noted three journal articles from 2012/13[51] lodged by the Applicant, relating to epilepsy in Cambodia. Although these articles are somewhat dated, I accept that Mr Bou would only receive government support and healthcare in Cambodia at the same level available to other Cambodian citizens. This would cause difficulties for him in establishing himself and maintaining basic living standards, which would undoubtedly be well below what is available for him in Australia. Mr Bou may be able to reside with his grandmother as he did prior to arrival in Australia, although I note the evidence about her advanced years and increasingly frail health. It is also likely Mr Bou would not have easy contact with his mother, children, other family members and friends in Australia. It is clear that if returned to Cambodia, Mr Bou is likely to experience significant hardship and emotional distress, which weighs strongly against the cancellation of his visa.
[50] Approximately a third of Cambodia’s budget coming from donor assistance See, for example: accessed on 18 December 2016.
[51] Including: Bhalla D., et al., (2012), ‘Epilepsy in Asia: A Cambodian Experience,’ Neuroepidemiology, 40, pp.260-263.
No other factors were raised by the parties or by the evidence, within the meaning of section 10(1) of the Direction.
CONCLUSION
After weighing up all of the evidence and the applicable law, I find that Mr Bou does not pass the character test as defined at section 501(6) of the Act. In making a supervening determination regarding the discretion granted by section 501(2) of the Act, I have had regard to the relevant considerations in the Direction and applied them to the specific circumstances of Mr Bou’s case.
The evidence shows that when Mr Bou becomes angry, he arms himself. His violent conduct since 2011, including a violent assault against his own mother, has resulted in convictions for very serious offences. Despite opportunities to learn from his mistakes and engage with the rehabilitative provisions of Australia’s justice system, Mr Bou has instead committed further violent crimes and failed to comply with court orders. There is no evidence of rehabilitation.
Mr Bou’s previous unwillingness to acknowledge his alcohol and drug addictions elevates concerns about his ability to be abstinent in the future. Were he to reoffend in similar fashion, members of the Australian community would again be exposed to serious harm. In addition, there are also consequences arising from a law and order, public health and social perspective. I note in particular that the strategy to prevent further offending by Mr Bou against his step-brothers is premised on maintaining physical separation between them and Mr Bou’s strict observance of the conditions identified by Mr Watson-Munro. Given his previous history, most notably Mr Bou’s non-compliance with court orders and directions, I am unconvinced of his ability to be fully compliant with these conditions in the future. This is in no way intended to reflect on the good intentions of Mr Bou’s mother, godmother and family friends like Ms Sonny Kim. I have no doubt his mother loves him and is willing to go to great lengths to support him, but she is currently battling a serious illness. Moreover, her efforts, and those of Mr Bou’s godmother and others, have previously been insufficient to moderate his violent conduct.
I find that there is an unacceptable risk of Mr Bou engaging in further violent conduct, which the Australian community should not have to accept. Notwithstanding the higher tolerance extended to him as a visa holder since the age of 14, the violent and repeat nature of his offences is such that he has been given a number of chances to change his ways. The Australian community would therefore expect his visa to be cancelled, despite the significant challenges Mr Bou would experience in re-establishing himself in Cambodia and the emotional impact on his mother, his two children and others in Australia who will miss him. I acknowledge in particular that it is in the best interests of Mr Bou’s children that his visa is not cancelled, which I have treated as a primary consideration. I also acknowledge that his ties to the Australian community and extent of impediments if removed are countervailing considerations weighing against cancellation of his visa. But having applied the considerations in Part A of the Direction, to the specific circumstances of Mr Bou’s case, the primary considerations of protecting the Australian community and the expectations of the Australian community outweigh any other considerations in this matter.
DECISION
It therefore follows that the decision under review is affirmed.

83.

84. I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

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

Dated: 22 December 2017

Date of hearing: 18 December 2017

Counsel for the Applicant:

Solicitors for the Applicant:

Mr Guy Gilbert, SC

Mr Nazim El-Bardouh, Bardo Lawyers

Solicitor for the Respondent:

Mr Tal Aviram, Clayton Utz

[2017] AATA 2781

22 December 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Standing

Jurisdiction

COURT	COURT DATE	OFFENCE	COURT RESULT
Dandenong Magistrates’ Court	02 Nov 2016	Contravene Family Violence Final Intervention Order – Intentionally Cause Harm / Fear. Possess heroin. Contravene Community Correction Order. Breach re 11/01/2016. Threat to Inflict Serious Injury / Assault With Weapon.	6 months imprisonment. Concurrent. 1 month imprisonment. Concurrent. Proven. 1 month imprisonment. Concurrent. Aggregate 6 months imprisonment. Concurrent.
Dandenong Magistrates’ Court	11 Jan 2016	Contravene Family Violence Intervention Order. Contravene Community Correction Order. Breach re 10/06/2015 Threat to Inflict Serious Injury. Assault With Weapon.	With conviction, adjourned to 10/01/2017. Proven. Original order has been varied. Convicted and a community corrections order for 12 months.
Melbourne Magistrates’ Court	20 Dec 2015	Contravene Family Violence Safety Notice (2 charges). Possess Drug of Dependence (not named).	With conviction, fined an aggregate of $750.00. With conviction, fined $300.00.
Dandenong Magistrates’ Court	10 Jun 2015	Threat to Inflict Serious Injury. Assault With Weapon.	Convicted and a community corrections order for 12 months. Unpaid community work – perform 80 hours of community work.
Dandenong Magistrates’ Court	20 Jan 2011	Recklessly Cause Injury (2 charges). Fail to Answer Bail Granted (2 charges).	Aggregate 4 months imprisonment. Concurrent. Sentence is wholly suspended under s.27 of the Sentencing Act 1991. Operational period is 6 months.