Chandra and Minister for Home Affairs (Migration)

Chandra and Minister for Home Affairs (Migration) [2019] AATA 4894 (19 November 2019)
Division:GENERAL DIVISION
File Number(s): 2019/5452
Re:David Vishant Chandra
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Member Shane Evans
Date:19 November 2019
Place:Sydney

The decision under review is affirmed.
..........................[SGD]..............................................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation – Class UK Subclass 820 Partner visa – where Applicant does not pass the character test – sentenced to 12 months imprisonment – whether there is another reason to revoke the cancellation of the Applicant’s visa – application of Ministerial Direction 79 – decision under review affirmed.
LEGISLATION
Acts Interpretation Act 1901 (Cth) s 15A
Commonwealth of Australia Constitution Act 1900 (Imp)
Migration Act 1958 (Cth) ss 499, 501, 501CA
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Djalic and Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292
Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration & Border Protection (2016) 153 ALD 337
Marzano v Minister for Immigration & Border Protection (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
PNLB v Minister for Immigration and Border Protection [2018] AATA 162
Saleh v Minister for Immigration and Border Protection [2017] AATA 367
Stone and Minister for Immigration & Ethnic Affairs (1981) 3 ALN 81
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Senior Member Theodore Tavoularis
Member Shane Evans
19 November 2019

David Chandra (“the Applicant”) is a citizen of Fiji who has travelled regularly to Australia since first arriving here in 2000, aged 10 years. In January 2017 he was granted a Class UK Subclass 820 Partner visa (“the visa”). The Applicant’s visa was mandatorily cancelled on 13 December 2018 under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”). On 19 December 2018 the Applicant applied to have the mandatory cancellation of his visa revoked. On 23 August 2019 a delegate of the Minister (“the Minister” or “the Respondent”) decided not to revoke the mandatory cancellation decision.
The Applicant has applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of the decision not to cancel the revocation of his visa.
The instant application was heard on 4 November 2019. The Applicant appeared in person and was legally represented. The Applicant also gave oral evidence at the hearing before us. Further oral evidence was received from his wife, his wife’s uncle, Mr Vishal Patrick Gounder, and his aunt, Ms Praveena Ali. The Tribunal also had the benefit of written evidence, particulars of which appear in the Annexed Exhibit List. The totality of the evidence has been carefully considered by us in our consideration of this matter.
We have decided to affirm the decision under review. Our reasons follow.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
There is no question that the Applicant made the representations required by s 501CA(4)(a). Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, we must refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[1]
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…[2]
[1] [2018] FCAFC 151.
[2] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration & Border Protection (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration & Border Protection (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; and
(b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[3] We will address each of these grounds in turn.
[3] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
At the hearing, there was no significant resistance by or on behalf of the Applicant to a suggestion that he does not pass the character test due to him having a substantial criminal record. The Applicant’s offending history does, however, place him at the very margin of what qualifies as a substantial criminal record for the purposes of s 501(6). His primary offence was assault occasioning actual bodily harm (domestic violence) for which he was sentenced to 12 months’ imprisonment with a six month non-parole period. This non-parole period was reduced from six months to three months on appeal. Although the sentence stipulated a three month period after which the Applicant was eligible for parole, what matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they actually served.[4]
[4] See Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409, 415-416.
Consequently, we are satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) for the revocation of the mandatory cancellation of his visa.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with any directions made under the Act. In this case Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA (“the Direction”) applies.[5] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[6]
[5] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79. Direction 79 is a Ministerial direction made pursuant to s 499 of the Act and must be applied by decision makers, including this Tribunal, on and from 28 February 2019.
[6] The Direction, sub-paragraph [7(1)(b)].
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
(a)protection of the Australian community from criminal or other serious conduct;
(b)the best interests of minor children in Australia;
(c)expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(a)international non-refoulement obligations;
(b)strength, nature and duration of ties;
(c)impact on Australian business interests;
(d)impact on victims;
(e)extent of impediments if removed.
We note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[7]
Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[8]
[Our insertion]
[7] [2018] FCA 594.
[8] Ibid, [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(i)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(ii)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;
(iii)a non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia;
(iv)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;
(v)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;
(vi)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(vii)the length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
We will now turn to addressing these considerations.
Primary Consideration A: Protection of the Australian community from criminal or other serious conduct
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further provides that 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 Applicant’s conduct to date
The Applicant’s criminal history consists primarily of convictions relating to the unprovoked assault of his then-pregnant wife, his mother-in-law and brother-in-law. In addition the Applicant has convictions for possessing prohibited drugs and driving a vehicle with illicit drugs present in his bloodstream.
The Applicant’s criminal history in Australia can be chronologically summarised as follows:
on 21 August 2018 the Applicant was charged with possessing a prohibited drug for which he was convicted on 12 September 2018 and fined $300 (“the possession offence”); and
(b)on 26 August 2018 the Applicant committed the offence of common assault, destroy or damage property less than $2000 value, assault occasioning actual bodily harm (domestic violence) for which he was convicted and sentenced on 10 October 2018 to 12 months’ imprisonment (“the assault”).
(c)on 6 August 2018 the Applicant was charged with driving a vehicle while illicit drug present in blood for which he was convicted on 14 November 2018 and fined $300 and disqualified for driving the three months (“the driving offence”);
The Tribunal notes that all the offences occurred in the month of August 2018. This issue is relevant and will be considered in the context of some of the Applicant’s evidence. The Applicant’s sentence for the 26 August 2018 offences was confirmed in the District Court of New South Wales on 31 October 2018. His Honour’s sentencing remarks provide a clear indication of the circumstances surrounding the Applicant’s offending and aptly summarise the seriousness of the offence:
“…

On this occasion the appellant and other family members including his wife who was then four months pregnant were in the evening of 25 September [sic] involved in a family dinner at a restaurant. They then went back to one of the victim’s houses and then ultimately consumed a lot of alcohol as indicated in the evidence of the appellant.
On the 26^th in the morning the victims and the appellant was socialising. The appellant became grumpy and agitated with other family members and his wife decided that she and the appellant should go home. The victim one the wife was occupying the drivers seat and the [sic] started to argue and the argument was “Why do you always take my family’s side over me? You never take my side.” But whilst the car was moving the appellant attempted to get out of the car, opened the door and as they approached around about the victim slowed down and the appellant fell out of the vehicle.
The victim stopped the vehicle and she was heard [sic] the accused yell out in pain. Victim one got out of the vehicle and walked over to the accused and then the appellant has kicked the victim in the arm to prevent her being able to dial for an ambulance, only trying to help him. The wife then tried to do her best. He then started punching her. Punched her in the face, her nose began to bleed. These punches continued over a period of time. He stumbled and fell to the ground, obviously seriously affected by alcohol and began to lash out. He then punched the victim so hard that she fell to the ground and unable [sic] to move. He then started to walk around the car yelling and screaming before he approached the victim, tried to pick her up off the pavement and then punched her again pulling her hair.
Ultimately the second victim said he did not want the appellant to enter the property, but she was - that person was pushed away and victim two kicked out at the appellant - this enraged him and he punched her in the face several times. He stopped punching and then kicked her on the left wrist. Then a third victim approached, tried to intervene and was kicked in the face. These things continued until eventually damage was done to property as well.”[9]
[9] Exhibit 9, s 501G Documents, G4, pages 31-32.
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)...
(h)…
(i)…
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction stipulates that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously.
The predominant theme of the Applicant’s offending for which he was sentenced at first instance in the Liverpool Local Court on 10 October 2018, was that of violence towards others. The Applicant’s offending resulted in three victims being assaulted. The learned sentencing Magistrate, Magistrate Holdworth’s remarks provide salient additional details regarding the Applicant’s violent conduct:
“HER HONOUR:
…
It’s important that I go through on the facts exactly the nature of the assault. It tells me that when she [the Applicant’s wife] was trying to get you up off the road and telling you to go home and sleep it off, that you started punching her in the face numerous times and that her nose started to bleed heavily. You were kicking out with your feet. She’s still trying to get you up off the ground and into the car. She managed to get you up onto your feet and whilst you were on your feet, you punched her in the face with enough force to knock her to the ground.
… Once you both got in the car, you continued to lash out at her and punch her in the face. In relation to your mother-in-law, who also tried to intervene once you were all at home, the facts tell me that you punched her in the face numerous times and she had to raise her arms above her head and cover her face to try and stop you from raining blows upon her. You then kicked her, and when you kicked her, you made contact with her arm. At this stage, your brother-in-law gets involved. Your brother-in-law tries to come in and stop the assault that’s happening on your mother-in law and he’s kicked in the face.
Although you didn’t have much physical dexterity, Mr Chandra, because of your intoxication and you managed to get out of a moving car, because of your intoxication, you still had enough physical dexterity to cause significant harm to persons around you who were simply trying to assist you…”[10]
[10] Ibid, G5, page 39, lines 27 – 48.

As mentioned earlier, even though the District Court of New South Wales (per His Honour, Judge Delaney) reduced the non-parole period from six months to three months, His Honour nevertheless formed a dim view of the Applicant’s conduct and his explanations for it:
“I have heard the explanations given by the appellant in evidence today. The explanations ring hollow to me and it seems to me that appropriate punishment requiring general deterrence [sic] is the appropriate course to take. It has been submitted on his [the Applicant’s] behalf that because of his history of no previous convictions that it would be appropriate to approach the matter otherwise than on a fulltime custodial basis. Whilst that may well be appropriate in many cases, having regard to the history that has been given in this case, in the evidence of the appellant himself I am satisfied that there should be a sentence of fulltime custody…”[11]
[Our underlining]
[11] Ibid, G4, page 32.
Having regard to (1) the nature of the offending involving multiple victims of the Applicant’s patently violent conduct, and (2) the impression that at least two sentencing judicial officers have formed about the nature of that conduct, we find that this sub-paragraph (a) of paragraph 13.1.1(1) of the Direction militates in favour of a finding that the Applicant’s conduct must be viewed very seriously.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction refers to the principle that crimes of a violent nature committed against women or children are viewed very seriously, regardless of the sentence imposed.
It is clear that Applicant’s primary offending involved acts of violence directed towards three victims, two of whom were women. The Applicant’s mother-in-law was “punched… in the face several times” as she and the male victim tried to prevent the Applicant from entering their property. The learned sentencing Magistrate aptly summarised the nature and extent of the attack on the Applicant’s mother-in-law:
“In relation to your mother-in-law, who also tried to intervene once you were all at home, the facts tell me that you punched her in the face numerous times and she tried to raise her arms above her head to cover her face to try and stop you from raining blows upon her. You then kicked her, and when you kicked her, you made contact with her arm.”[12]
[12] Ibid, G5, page 39, lines 36-41.
The Applicant’s attack on his wife is, in our view, rendered more serious by the fact that he knew she was pregnant at the time of the attack. The learned sentencing Magistrate made these observations about the violent conduct towards the wife:
“Because of the seriousness of these matters, the fact that the assault upon your wife was not just a single act of battery but multiple physical contacts with her, including knocking her to the ground when she is pregnant, what I have to consider is community safety before I consider the imposition of a penalty that requires you remain in the community. In my view, the seriousness of these offences is just too high for the Court to consider imposing a sentence to be served in the community and you will be subject to a full-time sentence of imprisonment”[13]
[Our underlining]
[13] Ibid, page 40, lines 47-50, and page 41, lines 1-4.
The evidence before the Tribunal confirms that the Applicant’s wife terminated her pregnancy on 28 August 2018, two days after she was assaulted by the Applicant.[14] In her witness statement tendered in evidence, the Applicant’s wife wrote:
“In the week of the incident I made a tough decision to have an abortion as I thought that saving my marriage was more important than bringing our baby into this life at this moment may not be the best idea…”[15]
[14] See Exhibit 10, Respondent’s Tender Bundle, page 13, Report of Dr Meaghan Heckenberg dated 28 August 2018.
[15] Exhibit 3, Statement of Applicant’s wife, dated 2 October 2019, paragraph [9].
The Applicant’s wife told the Tribunal that the assault had made a difference to the way in which she viewed the prospect of having a baby. She added that the Applicant’s conduct contributed to her feeling a sense of uncertainty which, in addition to the financial stress the couple was experiencing, caused her to determine that it was not the right time to have a child.
We do not suggest, nor do we find, that the Applicant is solely responsible for his wife’s decision to terminate the pregnancy It is, however, noteworthy in the context of sub-paragraph (b) of paragraph 13.1.1(1) of the Direction, because it is demonstrative of a dimension of the effect of violent offending against women, particularly vulnerable women. The Applicant’s wife was in the early stages of pregnancy, and she and the Applicant had only just reached the point where it was considered appropriate to inform others that she was expecting. In her witness statement the Applicant’s wife writes that the “night of the incident we had planned to tell my family as my 3 months would finally be coming to an end safely”.[16] This being the case, there can be no question that the Applicant knew of his wife’s pregnancy when he assaulted her.
[16] Ibid, paragraph [6].
Thus, for present purposes, the ambit of sub-paragraph (b) ought not be exclusively limited to an investigation into or finding about whether the Applicant’s violent conduct towards his wife terminated – on a physical basis – the medical reality of her pregnancy. It is clear from the evidence that his extraordinary and violent conduct towards her – in circumstances where he plainly knew she was carrying a child (their child) – was a significant catalyst that convinced her to terminate the pregnancy. Put simply, there is absolutely no evidence to suggest she was contemplating any such thing before the Applicant subjected her to this violence.
We accept that the Applicant’s history of offending is of relatively short compass. Be that as it may, viewed through the lens of this sub-paragraph (b), his offending must be construed as very serious involving, as it does, wanton and deliberately violent offending against two women and an unborn child. We are therefore of the view that an application of this subparagraph (b) of the Direction to the factual matrix of this Applicant’s offending strongly militates in favour of not revoking the mandatory cancellation decision.
Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction provides that crimes committed against vulnerable members of the community are to be regarded as serious. To an extent, this sub-paragraph (c) dovetails into our findings about the immediately preceding sub-paragraph (b).
There can be no question that the Applicant’s middle-aged mother-in-law and his then-pregnant wife can be considered “vulnerable members of the community” for the purposes of this sub-paragraph (c). The mother-in-law’s vulnerability is evident not just from her age, but from the circumstances of the Applicant’s violent conduct towards her. The evidence convincingly indicates that he persisted in delivering blows to her face in circumstances where she had raised her arms in an effort towards self-defence.
Similarly, the Applicant’s conduct towards his then-pregnant wife, in circumstances where she was trying to act responsibly and to cause him to ameliorate his conduct, must be viewed as an attack on a vulnerable person. While we form no determinative view on the impact of the Applicant’s offending on the unborn child, it suffices to say that the unborn child’s vulnerability is adequately captured by the then-pregnant wife’s vulnerability to the Applicant’s violent conduct.
Thus, the Applicant’s offending against vulnerable members of the community – specifically, his mother-in-law and his then-pregnant wife – is a relevant factor for consideration and application of this sub-paragraph (c), in favour of a finding that his offending has been of a very serious nature. Accordingly, this sub-paragraph (c) is supportive of a finding that his visa status should not be restored to him.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker to the sentence(s) imposed by the courts for a crime or crimes of a non-citizen/applicant, with specific reference to sub-paragraph (b) of paragraph 13.1.1(1) of the Direction. The imposition of a custodial term is regarded as the last resort in any reasonably applied sentencing process. Custodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence(s) committed by an applicant.[17]
[17] See PNLB v Minister for Immigration and Border Protection [2018] AATA 162 at paragraph [22]; and Saleh v Minister for Immigration and Border Protection [2017] AATA 367 at paragraph [50].
As has been outlined earlier, the most significant sentencing regime imposed on the Applicant arose from the sentencing episode at the Liverpool Local Court on 10 October 2018. The net outcome, in sentencing terms, was a head custodial term of 12 months with a non-parole period of six months. The net outcome on appeal to the Parramatta District Court was that the non-parole period was reduced from six to three months. While not necessarily determinative of any weight to be allocated to this sub-paragraph (d), we note that the Liverpool Local Court imposed cumulative custodial terms amounting to some 33 months for the six charges to be punished. On appeal the Parramatta District Court, for the same six offences, sentenced the Applicant to cumulative custodial terms amounting to 27 months. This cannot be said to be insignificant offending.
To our minds, both abovementioned regimes of sentencing are of a magnitude to attract an adverse application of this sub-paragraph (d) of paragraph 13.1.1(1) of the Direction. We are of the view that sentences imposed by the Parramatta District Court across the Applicant’s albeit brief offending history are demonstrative of the very serious nature of his offending. This view is supported by the sentencing remarks of the learned sentencing magistrate (at first instance) who noted:
“Because of the seriousness of these matters…what I have to consider is community safety before I consider the imposition of a penalty that requires you to remain in the community. In my view, the seriousness of these offences is just too high for the Court to consider imposing a sentence to be served in the community and you will be subject to a full-time sentence of imprisonment.[18]
[Our underlining]
[18] Exhibit 9, Section 501 G Documents, G5, page 7, lines 47-50 and page 8, lines 1-4.
Similarly, the learned District Court judge who heard the appeal (His Honour Judge Delaney) thought the Applicant’s:
“…explanations [for his offending] ring hollow to me and it seems to me appropriate punishment requiring general deterrents [sic] is the appropriate course to take...having regard to the history that has been given in this case…I am satisfied that there should be a sentence of fulltime custody.”[19]
[Our underlining]
[19] Ibid, G4, page 32.
We are thus of the view that upon an application of this sub-paragraph (d) of paragraph 13.1.1(1) of the Direction, the sentences imposed by the Courts for the crimes of this Applicant are clearly supportive of a finding that his offending is to be assessed as very serious.
Sub-paragraph (e) of paragraph 13.1.1(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. To an extent, the investigatory exercise required by this sub-paragraph (e) largely mirrors that required in an application of the immediately preceding sub-paragraph (d). This is because any trend of increasing seriousness of offending is usually analogous to the regime of sentencing imposed for it. For present purposes, it cannot be said that the Applicant has a gradually evolving history of offending such that it commenced with relatively minor and non-indictable offending before graduating to more significant and indictable offences.
Be that as it may, while there is no element of frequency in his offending per se, we think it is safe to conclude that his offending was of a very serious nature from its virtual outset. While not determinative of any definitive finding about weight to be allocated to this sub-paragraph (e), one negative observation made about the nature of the Applicant’s offending can be found in the sentencing remarks of the learned sentencing Magistrate. In the sentencing hearing before her, a procedural issue arose which is described in the transcript as follows:
“HER HONOUR: You knew that you needed a report.
ACCUSED: Yes
HER HONOUR: You knew that they turned up to your house on one occasion. You knew that they’d given you a letter saying ‘Come on 13 September’, and you didn’t turn up. Why should I adjourn this case, Mr Chandra? I told you very clearly when you were here last time that you were looking at a gaol sentence. The fact that you haven’t obeyed any of the Court’s directions in the meantime tends to suggest that you really don’t care about the consequences.
ACCUSED: No, your Honour. I do.
HER HONOUR: Well, its not obvious.
ACCUSED: We apologise.
HER HONOUR: Do you know how much of their time you’ve wasted? There is a queue of people, a queue waiting to see Community Corrections to see if they have alternatives to gaol. You thumbed your nose at it, Mr Chandra, which tends to suggest that you’re not taking this matter seriously at all. You’ve got no proper explanation for why you didn’t turn up on 13 September.
…”[20]
[Our underlining]
[20] Ibid, G5, page 35, lines 32-50 and page 36, lines 1-3.
The level of weight attributable to this specific sub-paragraph (e) must be tempered by the reality that the Applicant’s offending arose from an identifiable “bad phase” of offending during 2018. As we comprehend his offending history, the totality of his offending is represented by sentencing episodes having a duration of two months in 2018. While it was not necessarily frequent offending, it did involve multiple victims, and indeed, vulnerable victims. We are of the view that an application of this sub-paragraph (e) points to a finding that a measure of weight is attributable to it such as to militate in favour of non-revocation. This finding should be tempered against the relative brevity of the offending. Accordingly, a moderate level of weight should be allocated to this sub-paragraph (e) in favour of non-revocation.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of the Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending. A review of his movement records[21] indicates the Applicant first came to Australia in December 2000. Those movement records indicate a high number of subsequent arrivals and departures into and out of Australia. Those movement records demonstrate that the totality of the time the Applicant has actually spent in Australia since December 2000 is only approximately four years.
[21] Ibid, G21, pages 97-99.
For his offending in 2018, the Applicant received a head custodial term of 12 months – both at first instance and on appeal. His very serious offending against his spouse, his mother-in-law and brother-in-law has resulted in a sentencing regime representing custodial time equivalent to approximately one quarter of his total time in Australia. This period does not include the time he has spent in immigration detention.
Accordingly, the application of this sub-paragraph (f) to the present factual matrix gives rise to a finding that the cumulative effect of the Applicant’s repeated offending – even of such a relatively short compass – is such as to render it very serious. The weight that can be allocated to this specific factor ought to be ameliorated by (1) the relatively short two month scope of the duration of the offending and (2) its isolation to, strictly speaking, three victims, two of which are vulnerable victims. We therefore allocate a moderate level of weight to this sub-paragraph (f).
We have considered, respectively, sub-paragraphs (g), (h) and (i) of paragraph 13.1.1 of the Direction. We conclude that none of those three sub-paragraphs have application to the present factual matrix.
Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs (a), (b), (c), (d), (e), and (f) of paragraph 13.1.1(1) of the Direction are relevant, we are of the view that the Applicant’s conduct is readily capable of characterisation as “very serious”.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the two following factors on a cumulative basis:
(i)paragraph 13.1.2(2)(a) requires us to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)paragraph 13.1.2(2)(b) requires us to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending.
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
Any consideration of a non-citizen’s risk to the Australian community were the non-citizen to commit further offences or engage in other serious conduct is informed by 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.
The Applicant’s representative contends that “the Australian community is not, now or in the foreseeable future, at any significant risk of harm from Mr Chandra”[22]. In support of this contention, it is further contended that the Applicant' wife who is the ‘main victim’ of the offending, actually supports revocation of the mandatory cancellation decision. While the Tribunal notes this contention, it is also noted that neither of the other two assault victims provided any supportive evidence in favour of the Applicant in the hearing before us.
[22] Exhibit 1, Applicant’s Statement of Facts, Issues and Contentions, page 2, paragraph [10].
We accept the evidence that the male victim of the offending, (the brother-in-law), is reported to no longer be part of the Applicant’s extended family. It is, to our mind, both pertinent and telling that the Applicant’s mother-in-law has not provided any support for the instant application. The Applicant’s wife told the Tribunal that her mother does not wish to interfere in her daughter’s affairs, but this, in our view, does not adequately explain the mother-in-law’s refusal to support the instant application. The Applicant’s wife was asked at the hearing whether her mother had provided any advice for her in relation to the current situation. The Applicant’s wife told the Tribunal that her mother told her to “make sure that my safety is my first concern… and to put myself first”.[23]
[23] Transcript, page 37, lines 8-9.
The Tribunal notes, with some concern, that while the Applicant purported to accept responsibility for his offending, he nevertheless said that he could not actually remember committing the assaults due to his level of intoxication. These were significant assaults that became the focus of attention (1) within the Applicant’s own extended family, (2) by the learned sentencing Magistrate at first instance, and (3) the learned District Court judge who dealt with the appeal. It is difficult for us to accept that he did not have a reliable or accurate recollection of his offending at the hearing of the instant application.

While no determinative finding can be made about the level of the Applicant’s issues with alcohol and illicit drugs and/or the state of his mental health, it is clear from the material and his sentencing history that he does have and continues to have an issue with both alcohol and illicit substances. This issue was not lost on the learned sentencing Magistrate who, in her sentencing remarks, said this:
“In relation to the 12-month sentence, Mr Chandra… I accept that you will require some intervention, not only in relation to your alcohol use but also your drug use and potentially your mental health, I am making a finding of special circumstances so the non-parole period is a period of six months with a period on parole of six months.”[24]
[24] Exhibit 9, section 501 G Documents, G5, page 41, lines 23-28.
The difficulty with assessing the nature of harm that would be caused by any similar violent reoffending by the Applicant is that we do not have any independent assessment of his propensity to reoffend. There is no independent assessment that any factors giving rise to his offending have been identified and are under some kind of remedial management and control. Accordingly, the only reliable finding is that were he to reoffend in a similar way, it would expose members of the Australian community to a significant risk of serious physical and psychological harm. Having regard to the circumstances of his violent offending against his wife, mother-in-law and brother-in-law, the nature of such harm could, quite conceivably, be catastrophic.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
In his Personal Circumstances Form, the Applicant said the following about his risk of reoffending:
“Do you believe that there are any factors that help to explain your offences which should be taken into account by the decision-maker?
During the month of August 2018 my wife and I were under alot [sic] of stress as our rental lease had expired and we had to find a new place. At the same time I had lost an employee jeopardizing my contract, we had an unplanned pregnancy and had vase financial stress. I had irresponsibly consumed alcohol and was highly intoxicated during the offence. However I have taken full responsibility for that day and have quit alcohol all together to prevent any incident to ever happen in our life ever again and to never have any excuse.
…
What do you think is the likelihood that you may re-offend now? Please give reasons for your answer.
Never again. I have learnt my lesson by facing and understanding the consequences of unlawful offences. I love my family too much to ever risk our life together again.
Have you completed any courses or programs that will help you to avoid further offending and to make a positive contribution to the community? Please provide evidence e.g. course completion certificates.
I have attended the journey program with the chaple [sic] in prison and had weekly appointments with the psychologist in prison.[25]
[25] Ibid, G7, page 57.
There is no escaping the reality that the Applicant’s offending has its roots in his unresolved issues with illicit substances and alcohol. As can be noted from the above-quoted sentencing remarks of the learned sentencing Magistrate, Her Honour held the same view. The principal difficulty with the Applicant’s self-reported resolution of his issues with alcohol is that there is no independent psychological or other expert evidence to: (1) confirm that he has done so; and (2) that his risk of re-offending has been thereby reduced. There is no expert to say that the Applicant’s issues with alcohol are the subject of any demonstrable form of rehabilitation and/or remedial management and control to address this issue.
Put at its highest, any resolution of the Applicant’s substance abuse issues and/or his mental health is still “a work in progress”. In his Personal Circumstances Form, the Applicant referred to spending some time with the facility’s Chaplain. In our view, the Chaplain/Reverend goes nowhere near suggesting that the Applicant’s issues causative of his offending have either been resolved or are being successfully treated and managed. The Chaplain/Reverend says these things:
“…He has been attending worship regularly since he arrived at Parklea. He had also attended a few sessions of the International Prison Fellowship, Prisoner’s Journey Program. He has a strong sense of faith in Jesus Christ…and his teachings with the hope to change his life to be a more caring and loving person to his wife and family.
…He believes that he is not a violent man. What happened was a once off incident because he was under the influence of alcohol. He vowed that he won’t drink again. He’s prepared to do both the anger management and drug and alcohol addiction courses.[26]
[Our underlining]
[26] Ibid, G20, reference of Reverend Leva Tukutama, dated 30 October 2018.
The Applicant’s self-reported rehabilitation has only been tested in the closed environs of either criminal custody or immigration detention. It is yet to be tested in the broader Australian community where he would be exposed to an unfettered capacity to, for example, present at a local pub or other social scenario where alcohol would be available. We are not convinced from the evidence now before the Tribunal that his capacity to moderate and control his intake of alcohol and/or illicit drugs is such as to render him as being of a lower risk of: (1) succumbing to the mind-altering effects of abusing alcohol and/or illicit drugs; and (2) feeling sufficiently free and empowered to re-commence his offending behaviour.
The evidence before us does not bode well in this regard. The delegate noted the Applicant was a “recreational drug user who used cannabis twice a week and methylamphetamine on average twice a month”. The delegate also thought that when placed under a measure of stress, the Applicant had a propensity to resort to substance abuse and when this did occur, it resulted in a breakdown of his normal inhibitions such as to render him capable of violence and abusive conduct towards those around him.
Also of significant concern is the incident that occurred on 16 August 2019 while the Applicant was in immigration detention. The incident is described in the material:
“…
At approximately 1400hours, [name of officer redacted] found a contraband item item [sic] hidden among Styrofoam padding in a discarded TV box carton underneath the table. The contraband item was an improvised smoking implement made out of a plastic bottle with a black hose piece attached to it.
…
At approximately 1415hours at the end of the room search, [name of officer redacted] questioned the detainees residing in the room about the ownership of the contraband item.
Detainee CHANDRA took ownership of the smoking implement.
…”[27]
[27] Exhibit 10, Respondent’s Tender Bundle, page 3.
Another incident occurred the following month (on 22 September 2019) when smoking implements were again found in the Applicant’s accommodation in detention that he shared with two others. In the second incident, the owner of the smoking implements was not identified.[28]
[28] Ibid, page 2.
Further, the Applicant’s wife was refused entry to the detention facility on 4 July 2019 due to:
“04/07/2019…A Female visitor [the Applicant’s wife] was refused entry due to the tested positive twice on the IoN Scanner 600 at the screening process.
…Detention Service Officer [name redacted] both particle tracer detector tests on visitor [the Applicant’s wife]. The first test was conducted at 15:12hours that read positive reading with sample number 14464 and the second test at 15.14 hours also returned a positive reading with sample 14465. The female visitor, [the Applicant’s wife] was immediately advised by the testing officer that the personal visit would now be denied and that she is not permitted to enter the centre today.
…”[29]
[29] Ibid, pages 3-4.
Having regard to the totality of the material, our finding is that there is a strong and convincing likelihood of this Applicant reoffending. Were he to re-offend, that offending has the clear capacity to cause very serious physical and/or psychological harm, indeed catastrophic and life-long irreparable harm, to a victim of the Australian community. Such a risk, in our view, is not acceptable to the broader Australian community.
We are mindful of the comments made by a previous sitting President of this Tribunal, His Honour Justice Davies, who said the following about the risk of reoffending:
“The likelihood of recidivism is a strong factor in favour of the deportation when the Tribunal is not satisfied that the criminal is unlikely to offend again…and even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.”[30]
³¹ Stone and Minister for Immigration & Ethnic Affairs (1981) 3 ALN 81.
Challenge to the constitutional validity of Paragraph 13.1.1 of the Direction
The Applicant has raised a submission that paragraph 13.1.1 of the Direction constitutes an unconstitutional intrusion of the executive into the area of judicial power because it “[deems] an offence to be very serious regardless of the sentence imposed”. There is a lack of particularity around that contention such that one is left with an opaque understanding of the argument sought to be made.
As identified by the Respondent,[31] the propounded contention derives from the following:
·the Commonwealth Parliament has somehow acted beyond its power by apparently authorising the Minister to enact a direction (Direction 79) which has the effect of contravening the doctrine of the separation of powers enshrined in Chapter III of the Commonwealth Constitution;[32]
·section 499(1) of the Act should be read down pursuant to section 15A of the Acts Interpretation Act 1901 (Cth) to avoid any such outcome;
·paragraph 13.1.1 of Direction 79 thereby infringes the doctrine of the separation of powers;
·therefore, paragraph 13.1.1 of Direction 79 is or should somehow be construed as ultra vires s 499 of the Act.
[31] Exhibit 8, Respondent’s SFIC, paragraph [31].
[32] Commonwealth of Australia Constitution Act 1900 (Imp).
This outcome is contended to arise because of the wording in paragraph 13.1.1(1) of the Direction and, in particular, sub-paragraph (b) which relevantly provides:
(b) the principle that crimes of a violent nature against women…are view very seriously, regardless of the sentence imposed.
…
[Our underlining]
We agree with the Respondent’s submission: this is a mischaracterisation of both (1) paragraph 13.1.1(1)(b) of the Direction and (2) how Commonwealth executive power is limited by Chapter III of the Commonwealth Constitution.
We are of the view that this Tribunal does not have any legal or other authority to decide or determine any constitutional question. Put simply, the Tribunal is part of the executive. Its power does not extend to any final determination of the constitutional validity of any legislative instrument nor to any capacity to “strike down” or to otherwise declare invalid any such legislative instrument.
The Tribunal must, instead, apply the provisions of relevant legislative and associated instruments, duly passed by the Commonwealth Parliament, in determining this Applicant’s application for review of the delegate’s non-revocation decision.
The Applicant’s submission as to the validity and/or enforceability of paragraph 13.1.1(1)(b) of the Direction is misconceived and incorrect because it proceeds on a mischaracterisation of paragraph 13.1.1(1). This part of the Direction sets out a number of considerations which must be taken into account in deciding an application concerned with revocation of a mandatory cancellation decision.
The Direction makes it clear that consideration of those factors is to be “informed by the principles in paragraph 6.3 [of the Direction].” Sub-paragraph (2) of paragraph 6.3 of the Direction relevantly provides that:
(2) a non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children…should generally expect to…forfeit the privilege of staying in, Australia.
We can put it no better than as put by the Respondent:
“Correctly understood, cl 13.1.1(1)(b) simply provides a decision-maker with a means of giving effect to the policy embodied in cl 6.3(2). It is a step along the way to the decision-maker answering the question of what the Australian community requires.”[33]
[33] Ibid, paragraph [39].
This specific sub-paragraph (b) of the Direction is not a deeming provision as contended by the Applicant. It does not purport to deem any particular assessment of the seriousness of an applicant’s criminal conduct. This specific sub-paragraph (b) clearly records a general principle to be followed by decision makers when seeking to assess a particular category of a crime of crimes committed by an applicant: specifically, crimes “of a violent nature against women and children.” This is a legislatively endorsed statement of the Minister’s assessment that as a matter of public interest, crimes committed in this particular category by applicants in these types of matters are to be viewed very seriously. The specific policy enshrined in this sub-paragraph (b) is that offending of this type will, pursuant to the principles in paragraph 6.3, be regarded as very serious “regardless of the sentence imposed” for any such crime or crimes.
As validly noted by the Respondent, the factors appearing in paragraph 13.1.1(1) of the Direction require an entirely different determinative exercise to that required in the judicial sentencing process.[34] This is because the sentencing process takes account of, but is not solely determined by, the objective seriousness of the offence before the sentencing court. As also noted by the Respondent:
“A judicial sentence for an individual offence is not a simple reflection of the seriousness of the offending conduct but a complex and instinctive synthesis of objective and subjective factors.
Properly understood in this way, cl 13.1.1(1)(b) (read with 13.1.1(1)(d)) does not operate to ‘deem’ any particular assessment of the ‘nature and seriousness of the non-citizen’s criminal offending’ (cl 13.1.1(1)). It simply reflects the conventional understanding that a judicial sentence is not solely concerned with the objective seriousness of the offence, but is a punishment imposed on an individual offender that reflects the totality of criminal conduct before the court and the offender’s circumstances at the time of sentencing.”[35]
[34] Ibid, paragraph [41].
[35] Ibid, paragraphs [41] and [42].
The Applicant further contends that sub-paragraph (b) of paragraph 13.1.1(1) involves some kind of impermissible “intrusion…into the area of judicial power”. There can be no argument that Chapter III of the Commonwealth Constitution specifically prohibits the exercise of any exclusively judicial functions (such as the punishment of criminal guilt) by the executive branch of government. Section 71 of the Commonwealth Constitution relatively provides:
The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction.
The cancellation of a person’s visa is, undeniably, an administrative action. It is not a maintainable proposition to suggest that the administrative cancellation of a person’s visa for the stated purpose of protecting the Australian community is somehow, or in some part, the exercise of an exclusive judicial power to punish criminal guilt. It is well-settled that this is the case even though the administrative decision to cancel a person’s visa may be based on factors also taken into account by a sentencing judicial officer.[36] As noted by the Full Federal Court in Djalic at paragraph [66]:
[36] See Djalic and Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292 (‘Djalic’).
[66] The following propositions can be derived from the authorities:
1.Section 51(xix) of the Constitution empowers Parliament to make a law providing for the deportation of aliens for whatever reason Parliament thinks fit, unless the Constitution otherwise prohibits the making of the law.
2.Under Chapter III of the Constitution, the adjudication and punishment of criminal guilt by reason of an alleged breach of a law of the Commonwealth appertains to the judicial power of the Commonwealth and cannot be entrusted to the Executive. If, therefore, Commonwealth legislation on its proper construction, purports to authorise the Executive to impose punishment for criminal conduct, the legislation, to that extent, will infringe Chapter III of the Constitution.
3.Whether legislation conferring power to cancel the visa or order the deportation of a non-citizen is punitive in character is to be determined by construction of the legislation, not by a consideration of the consequences of detention or removal of the individual.
4.Accordingly, the power to cancel a visa or order the deportation of a non-citizen is not to be regarded as punitive in character merely because exercise of the power involves interference with the liberty of the individual or imposes what the individual may see as sanctions consequential on his criminal connections. Neither can detention incidental to deportation of a non-citizen be characterised as punitive merely because it involves deprivation of liberty.
5.Legislation conferring a discretion on the Executive to cancel the visa of a non-citizen or to deport a non-citizen is not characterised as punitive if it can fairly be said to protect the Australian community. This is so even where the pre-condition that must be satisfied for the exercise of the power is the conviction of the non-citizen for a criminal offence or the imposition of a minimum period of imprisonment.
6.Nonetheless, if in a particular case the decision-maker purports to exercise a statutory power to cancel the visa of a non-citizen or to deport the non-citizen or order to punish the non-citizen and not for protection of the Australian community or some other legitimate objective, the exercise of the power may be ultra vires the statute.
Thus, it cannot be said that the delegate’s decision not to revoke the mandatory cancellation decision or any decision this Tribunal makes in answer to the instant application comprises any sort of intrusion into an exclusively judicial function which might, in some way, indicate that either or both of the delegate and/or this Tribunal was/is purporting to exercise a power to punish criminal conduct.
We accept (and find) that sub-paragraph (b) of paragraph 13.1.1(1) of the Direction is entirely consistent with the doctrine of the separation of powers enshrined in Chapter III of the Commonwealth Constitution.
Conclusion: Primary Consideration A
We have had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and find that (1) the nature of the Applicant’s offending conduct to date is very serious and (2) there is strong and convincing likelihood that he will engage in further very serious conduct if returned to the Australian community.
Were he to re-offend, the harm that would be occasioned to others would be both physically and psychologically substantial, very serious and potentially catastrophic. In consideration of all of the evidence, and each of the relevant factors contained in the Direction, we find that Primary Consideration A weighs heavily in favour of non-revocation.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

It is common ground that there are no minor children of the Applicant in Australia that could be affected by the revocation of the Applicant’s visa.
The Applicant does have a minor child in Fiji but this child is, of course, not a child ‘in Australia’ that can be affected by this decision as required by paragraph 13.2 of the Direction. Accordingly this Primary Consideration is irrelevant and attracts no weight.
Primary Consideration C – The Expectations of the Australian Community
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1)[37] of the Direction provides that we should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. We must also have regard to (1) the Government’s views in this respect and (2) any overarching principles and guidance provided by the Direction.[38] Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an Applicant’s offending is such that the Australian community would expect that he/she should not hold a visa.
[37] The terms of paragraph 13.3(1) of the new Direction 79 are identical to the terms of paragraph 13.3(1) of the now revoked Direction 65.
[38] See the Direction, paragraphs 6.2(1) and 6.3(1)-(7).
Factual circumstances relevant to Primary Consideration C
In assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following circumstances arising from this matter’s factual matrix:
·the Applicant first arrived in Australia in December 2000 and has resided here since 2015 following his marriage in April 2015. He is currently 29 years old;
·he has no minor children in Australia;
·his offending was on three separate occasions in August 2018;
·his offending indicates a predisposition towards substance abuse including unlawful drugs and a capacity for violence towards others;
·his offending has seen him removed from the Australian community on a continuous basis, be it in the form of a criminal custody or immigration detention, since October 2018;
·for his offending in this country, the sentencing courts have seen fit to impose total cumulative custodial terms giving rise to a head custodial term of 12 months;[39]
·there is no independent and expert evidence that the Applicant’s propensity to abusing alcohol and/or illicit substances is the subject of any rehabilitative regime. At best, any semblance of resolution of those issues arises from the Applicant’s self-reporting. In these circumstances, the Tribunal cannot be reasonably expected to form any definitive view about the Applicant’s risk of reoffending other than it remains as it was prior to his most recent removal from the Australian community in October 2018;
·the Tribunal has:
ono diagnosis of psychological or other factors predisposing the Applicant to abuse unlawful drugs and to offend in a very serious way;
ono independent verification that those factors have been identified and are now the subject of an externally imposed and monitored regime of remedial therapy, treatment and management;
ono assurance that the Applicant has demonstrated any convincing level of insight into his offending, so that this Tribunal can confidently find there is either no real risk of him re-offending, or that his risk of re-offending is low.
[39] The 33 months of cumulative custodial time imposed at first instance by the Liverpool Local Court was then reduced to 27 months by the Parramatta District Court on appeal.
The evolution of the Australian community’s “expectations”
Since the early 2000s, courts and tribunals have been defining formulae to assist a decision-maker in reaching a decision that accords with the expectations of the Australian community.
In 2003, Deputy President Block of this Tribunal said that one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[40]
[40] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336, [36].
Deputy President Forgie of this Tribunal considered the Australian community’s expectations as part of her consideration of paragraph 13.3(1) of the Direction.[41] The learned Deputy President thought this paragraph leads a decision-maker to:
102. …conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times.
[41] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at paragraphs [102]-[103].
The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Mortimer J in YNQY v Minister for Immigration and Border Protection:[42]
In substance this consideration is adverse to any applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and has been convicted of serious crimes.
[Our underlining]
[42] [2017] FCA 1466, [76]-[77] (“YNQY”).
The learned Mortimer J also thought the last two sentences of paragraph 13.3 of the Direction:
…[are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do…
[Our underlining]
In Afu v Minister for Home Affairs,[43] Bromwich J said:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.
[My underlining]
[43] [2018] FCA 1311, [85] (“Afu”).
In FYBR v Minister for Home Affairs,[44] Perry J observed that:
“It follows, in line with the authorities, that cl 11.3 of Direction 65[45] is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...” [46]
[Our underlining]
[44] [2019] FCA 500 (“FYBR”).
[45] Note: FYBR was concerned with a visa refusal. This means the relevant paragraph relating to expectations of the Australian community was paragraph 11.3 [et seq] of the Direction. The instant case is, of course, a matter relating to the non-revocation of a mandatory cancellation decision. In those latter circumstances, the relevant paragraph is 13.3 [et seq] of the Direction. Further, “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 13.3 for non-revocation matters.
[46] FYBR, [42] (Perry J).
FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld FYBR, confirming Perry J’s reasons and approach to the expectations of the Australian Community: see FYBR v Minister for Home Affairs [2019] FCAFC 185.
Thus, the Full Court’s decision, along with the existing authorities of YNQY and Afu establish that:
(a)the ‘expectations of the Australian community’ cannot be measured or determined as if a provable fact. It is an assessment of community values made on behalf of that community.[47]
(b)the Tribunal cannot determine for itself what such ‘expectations’ are by reference to the Applicant’s circumstances or evidence about those expectations;[48]
(c)the Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks are the ‘expectations of the Australian community’, and the Tribunal should have “due regard” of those statements, if made;[49]
(d)in assessing the weight attributable to this Primary Consideration C, decision makers can have regard to the principles appearing in paragraph 6.3 of the Direction, in particular subparagraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision maker.[50]
[47] Afu, [85].
[48] FYBR, [42].
[49] FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[50] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).
Analysis – allocation of weight to Primary Consideration C
The can be no doubt that the Applicant has breached the expectations of the Australian community as he has failed to abide by the law. Thus, for the purposes of ascertaining the level of attributable weight to this Primary Consideration C, we make the following findings:
(a)the Applicant has made little in the way of positive contribution to the Australian community;[51]
(b)the Applicant has lived in Australia for approximately two and a half years prior to his offending;[52]
(c)the Applicant’s offending to date is of a very serious nature involving, as it does, serious offending to women;
(d)the Applicant has demonstrated a his lack of insight into his substance abuse issues;
(e)there is a strong and convincing likelihood that he will engage in further and, most likely, very serious conduct if returned to the Australian community; and
(f)that (based on our assessment) there is a quite significant risk of substantial and even catastrophic harm to the Australian community were he to re-offend.
[51] Paragraph 6.3(7) of the Direction.
[52] Ibid, paragraph 6.3(5).
Conclusion: Primary Consideration C
We are of the view that the above findings militate in favour of not revoking the cancellation of the Applicant’s visa. We accordingly find that Primary Consideration C is of heavy weight in favour of affirming the non-revocation decision under review.
OTHER CONSIDERATIONS
There are five “Other Considerations” disclosed in the Direction:
(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.
We will address each of these considerations, and their respective weights, in turn.
(a) Non-refoulement obligations
The non-refoulement obligations that would normally form part of the Tribunal’s consideration of a matter such as this do not apply here. There are no non-refoulement issues arising from the Applicant’s potential return to Fiji. The Applicant noted in his submissions that he “…has not made any claims in respect of Australia’s protection obligations.”[53] As such, this Other Consideration (a) is not relevant to determination of this application.
[53] Exhibit 1, Applicant’s SFIC, page 4, paragraph [21].
(b) Strength, nature and duration of ties
There is readily made concession by the Respondent that:
·“…non-revocation would have a negative effect upon [the Applicant’s] wife in Australia, although care should be taken with this consideration as members of her family were also victims of the assault”
·“While this factor may weigh in favour of non-revocation [sic], it does not outweigh the serious nature of the applicant’s offending.”[54]
[54] Exhibit 8, Respondent’s SFIC, paragraphs [57] and [58].
In his Personal Circumstances Form, the Applicant makes reference to his wife and mother-in-law residing in Australia. He says he has a grandmother, three uncles, two aunts and a cousin also residing in Australia. Confusingly, he also says he has 10 ‘uncles/aunts’, four ‘nieces/nephews’, 17 ‘cousins’ and two ‘grandparents’ apparently also residing in Australia.[55] It is reasonable to attribute some measure of weight to this Other Consideration (b) on the basis of the family members/relatives the Applicant says reside in Australia. As against that, it should be noted that both of his parents reside in Fiji and that he has a child from another relationship also currently resident in Fiji.
[55] Exhibit 9, section 501 G Documents, G7, page 58.
The Applicant has an employment history in Australia. He seems to have worked relatively consistently since settling here in 2015. He notes an employment history as follows:
·from 06/15 to 11/15 – he worked with a supermarket chain;
·from 11/15-08/17 – he worked as a courier/ sub-contractor with a transport company; and
·from 10/17 – current (as of the date of the Personal Circumstances Form) – he worked as an insulation sub-contractor with a NSW insulation company.[56]
[56] Ibid.
The Applicant seemed an entrepreneurial sort of person and at the hearing spoke of an intention to establish a number of businesses if he is allowed to remain in Australia. In particular, he wanted both himself and his wife to be self-employed and he spoke of commencing a child care business primarily to meet the actual or anticipated skillset of his wife.
The Tribunal notes the intention of the Applicant’s wife to accompany him back to Fiji in the event that he is deported.[57] Whilst she was born in Fiji and spent a period of time there, the vast majority of her life has been in Australia. It is contended by the Applicant that his wife would have great difficulty establishing herself in Fiji.
[57] Exhibit 4, Statement of Applicant’s wife dated 30 October 2019, page 1, paragraph [7].
We have had regard to the various letters of support and similar supportive documents appearing in the material.[58] While the comments in this material are supportive, this support has not stopped him from seriously offending in this country. His wife’s uncle has provided a statement to the Tribunal in which he states the Applicant is a “remarkable young man with good moral character”. His aunt has also provided a statement in support of the Applicant to the tribunal in which she writes “[all] our family except his [the Applicant’s] parents live here in Australia”.
[58] See Exhibit 9, Section 501 G Documents, G9, G10, G11, G20.R4, G20.R5; Exhibit 5, Statement of the Applicant’s aunt dated 4 October 2019; and Exhibit 6, Statement of Applicant’s wife’s uncle dated 14 October 2019.
It is clear that the strength and nature, if not duration of the Applicant’s ties to Australia are of a notable level. Consistent with paragraph 14.2(1)(b) of this Other Consideration, those ties, and thus this Other Consideration (b), attract a moderate level of weight in favour of the Applicant.
Such level of weight attributable to this Other Consideration (b) can, to a slight extent, be adversely tempered by a finding (pursuant to paragraph 14.2(1)(a)(i) of the Direction) that he began offending relatively soon after his most recent arrival (and most permanent stay) in Australia.
In terms of positive contributions to the Australian community (paragraph 14.2(1)(a)(ii) of the Direction), the Applicant’s material discloses that he has employees and subcontractors who would be disadvantaged by his removal. He also states that he makes a monthly donation to the Smith Family and Rural Fire Services New South Wales as well as doing volunteer courier work for the poor.[59]
[59] Exhibit 9, Section 501 G Documents, G7, page 58.
Both these work-based and community-based contributions are, of course, adversely impacted by the cost of the Applicant’s offending to the Australian community in terms of its consumption of resources of the police, the judicial system and corrective services apparatus. Be that as it may, we are of the view that a slight measure of weight is attracted by whatever positive contributions the Applicant may have made to the Australian community.
Having regard to the respective weights attributable to the factors appearing at paragraphs 14.2(1)(a)(i) and (ii), and 14.2(1)(b) of paragraph 14.2 of the Direction, we find that while this Other Consideration (b) weighs in favour of revocation, it is outweighed by Primary Considerations A and C, which favour non-revocation.
(c) Impact on Australian business interests
The Applicant has been engaged in providing insulation services to Australian businesses and submits this is a relevant consideration. The Applicant’s departure from Australia would not adversely impact any Australian business interests in the sense contemplated by paragraph 14.3 of the Direction. We cannot recall any evidence that this consideration is of relevance in determining this application.
(d) Impact on victims
The Applicant contends that the main victim of the assault offence is supportive of revocation and this is accepted by the Tribunal.
The Respondent did not call any evidence relating to any impact that the Applicant’s continued presence in Australia would have on his other victims. Without such evidence, it would be irresponsible for us to enter the realm of mere conjecture and guess as to the impact this would have on the other victims.
We note and accept that the Applicant’s wife has been a strong advocate for revocation. In her statement before the Tribunal[60] she says that “not having him around has been so difficult, always having my husband around giving me love and comfort and then having him taken away so suddenly for so long has been painful, and stressful”.
[60] Exhibit 3, Statement of Applicant’s wife dated 2 October 2019, page 2, paragraph [11].
Accordingly, we find that this factor attracts some weight (albeit minimal) in favour of revocation of the Applicant’s visa cancellation.
(e) Extent of impediments if removed
Paragraph 14.5 of the Direction stipulates that any assessment of the impediments a non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards in that home country, requires a decision-maker to take the following factors into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to them in that country.
With specific reference to the three factors appearing in paragraph 14.5(1) of the Direction, we note the Applicant is a young man of 29 years of age in seemingly good health.[61] He has not declared that he has any significant health concerns. There are no substantial language or cultural barriers to his return and re-establishment in Fiji.[62] The Applicant has resided in Fiji for most of his life including as an adult. As a citizen of that country, he will have access to social, medical and/or economic support available to him in Fiji. While we accept that medical care and governmental social support in Fiji[63] may not be at the same level as that available to the Applicant in Australia, he will have access to those things in the context of what is generally available to other citizens of Fiji.
[61] Section 14.5(1)(a) of the Direction.
[62] Section 14.5(1)(b) of the Direction.
[63] Section 14.5(1)(c) of the Direction.

The Applicant contends that his earning capacity will be decreased should he be returned to Fiji and this will have an impact on his ability to contribute financially to his parents and son in Fiji. As noted by the Respondent, the Applicant will nevertheless have the opportunity in Fiji to raise his child and to spend time with his nuclear and extended families in Fiji.
While the Applicant contends that he “has been providing financial support for his son, as well as for his own parents in Fiji”,[64] the extent of this support is not quantified. We note one of the causal factors identified by the Applicant (and, indeed, his wife) involved them being under “vast financial stress”.[65] To our minds, this indicates the Applicant’s capacity to provide financial support to others is, at least for present purposes, limited.
[64] Exhibit 1, Applicant’s SFIC, page 5.
[65] Exhibit 9, Section 501 G Documents, G 7, page 57.
At the hearing, the Applicant confirmed that he was gainfully employed in Fiji. He spoke of commendable career achievements and advancements in that country involving his progression from risk officer role to a ‘relatively senior role’ as a human resources coordinator at a large company in Fiji prior to migrating to Australia.
Having regard to the evidence relevant to the factors appearing in paragraph 14.5(1) of the Direction, we are of the view that this Other Consideration (e) is of neutral weight in the determination of this application.
Conclusion: Other Considerations
With reference to Other Considerations, we are of the view that to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C which both weigh heavily in favour of non- revocation. The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)strength nature and duration of ties: weighs moderately in favour the Applicant;
(c)impact on Australian business interests: not relevant;
(d)impact on victims: is of some minimal weight in favour of the Applicant;
(e)extent of impediments if removed: is of neutral weight.
CONCLUSION: IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION OF THE APPLICANT’S VISA?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or we must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation decision. As we have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before us, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, we have had regard to the considerations referred to in the Direction. We find as follows:
·Primary Considerations A and C both weigh heavily in favour of non-revocation;
·Primary Consideration B is not relevant to this application;
·We have outlined the weight attributable to the Other Considerations. We do not consider that any of them, even if combined with each other, outweigh the significant combined weight we have attributed to Primary Considerations A and C.
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, we cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 132 (one hundred and thirty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theo Tavoularis, Member Shane Evans

..............................[SGD]......................................
Associate
Dated: 19 November 2019

Date(s) of hearing: 4 November 2019

Advocate for the Applicant: M Jones, Parish Patience Immigration Lawyers

Counsel for the Respondent: J Davidson

Solicitors for the Respondent: H Dejean, Australian Government Solicitor

[2019] AATA 4894

19 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Date(s) of hearing:	4 November 2019
Advocate for the Applicant:	M Jones, Parish Patience Immigration Lawyers
Counsel for the Respondent:	J Davidson
Solicitors for the Respondent:	H Dejean, Australian Government Solicitor