Chongnee and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 1501
•6 June 2025
Chongnee and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 1501 (6 June 2025)
Applicant:Fred Fereti Chongnee
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2025/2099
Tribunal:General Member Cosgrave
Place:Brisbane
Date of Decision: 6 June 2025
Date of Reasons: 11 June 2025
Decision:Applying s 105(c)(i) of the Administrative Review Tribunal Act 2024 (Cth), this Tribunal sets aside the decision made by a delegate of the Respondent on 6 December 2024 and substitutes it with a decision to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
.
.....................[SGD].......................
General Member Cosgrave
Catchwords
MIGRATION – Class TY Subclass 444 Special Category (Temporary) – s 501(2) cancellation of visa – failure to pass good character test – rape – family violence – Ministerial Direction No. 110
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
Queensland Criminal Code 1899 (Qld)
Cases
Demir V Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Garland v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 144
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
GJJF and Minister for Home Affairs (Migration) [2019] AATA 930
Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs [2022] HCA 26
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Roach v Minister for Immigration and Border Protection [2016] FCA 750, [141]
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Secondary Materials
Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024)
Statement of Reasons
INTRODUCTION
Mr Chongnee seeks review of the Minister’s (the Minister or the Respondent[1]) delegate’s 28 February 2025 decision under s 501(2) of the Migration Act 1958 (Cth) (the Act) to cancel his Class TY Subclass 444 Special Category (Temporary) (the Visa).[2]
[1] Unless the context says otherwise, passages quoted in bold font have been emphasised by the Tribunal.
[2] Exhibit R1: G5, 30.
The hearing was held in Brisbane on 22 and 23 May 2025. Mr McCarthy of Sambi Legal represented Mr Chongnee. Mr McLaren of Mills Oakley Lawyers represented the Respondent.
This was an expedited matter. Under s 500(6L) of the Act, the Tribunal must make a decision by 6 June 2025. On 6 June 2025, the Tribunal met its obligation[3] by providing a short form decision.[4] The Tribunal now gives its reasons for its decision.
[3] Pursuant to s 500(6L) of the Migration Act 1958 (Cth).
[4] Khalil v Minister for Home Affairs (2019) 271 FCR 326 [41]–[48].
THE BACKGROUND FACTS
Mr Chongnee is a forty-four-year-old[5] New Zealand citizen who has resided in Australia since June 1993.[6]
[5] Exhibit R1: G6, 44.
[6] Exhibit R1: G31.
On 30 July 2004 His Honour Judge Brabazon QC of the District Court of Queensland convicted Mr Chongnee of three charges – rape, enter/in dwelling & break with intent in the night & uses actual violence & is armed with dangerous/offensive weapon instrument and Assault occasioning actual bodily harm while armed.
His Honour sentenced Mr Chongnee to a term of six years for the rape charge (the Index Offence), compared to a maximum penalty of life imprisonment.[7][8] Mr Chongnee has also been convicted with other criminal offences and between 1999 and 2023 committed fourteen traffic offences, having his licence suspended on four occasions (the Offending Record). His Offending Record is considered below.
[7] Exhibit R1: G8.
Mr Chongnee did not declare his criminal convictions on incoming passenger cards dated 30 November 2012 and 13 July 2016.[9] On 4 July 2024, he told the Respondent’s department that the cards had been completed by his sister, and that the answers were correct because he had been of good character for ten years.[10] On 20 July 2024, he confessed that he lied on the incoming passenger cards due to his concerns about being sent back to New Zealand.[11]
[9] Exhibit R1:G5, 34; G30, 132-133
[10] Exhibit R1: G13, 97.
[11] Exhibit R1: G14, 99.
On 6 December 2024 the Respondent’s delegate cancelled Mr Chongnee’s Visa (the reviewable decision).[12]
[12] Exhibit R1: G4, 29.
On 14 March 2025 Mr Chongnee received the delegate’s decision.[13]
[13] Exhibit R1: G2, 16.
On 18 March 2025 Mr Chongnee applied to the Tribunal for a review of the reviewable decision.[14]
[14] Exhibit R1: G1, 1 & G2, 5.
THE LEGAL FRAMEWORK
The Tribunal has jurisdiction here because of Section 13 of the Administrative Review Tribunal Act (the ART Act) and s 500 of the Act.
The Respondent may cancel a visa under s 501(2)(b) of the Act if they reasonably suspect that the visa holder does not pass “the character test”, and the visa holder does not satisfy the Minister that they pass the character test.
Under s 501(6) of the Act a visa holder does not pass the character test if one of the grounds in that subsection is met. Here the relevant ground is in s 501(6)(a), read with s 501(7)(c) - where the visa holder has a substantial criminal record, which they have if they received a sentence of imprisonment of twelve months or more.
Mr Chongnee received a sentence of six years for the Index Offence. What matters for present purposes is the term of imprisonment, not the amount of time he actually served.[15]
[15] See Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409, 415-416.
When deciding whether to exercise the discretion in s 501(2), s 499(2A) of the Act requires the decision-maker – here, the Tribunal - to comply with Direction 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).[16]
[16] See Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at para [38].
THE TRIBUNAL’S TASK
In the reviewable decision, the Respondent’s delegate applied s 501(2) and cancelled Mr Chongnee’s Visa on the basis that they reasonably suspected that he failed the character test and that Mr Chongnee had not satisfied them that he passed the character test.[17]
[17] Migration Act 1958 (Cth) ss 501(2), (6) and (7).
The Tribunal can choose how to conduct its procedures. It can be informal and less technical as long as it fairly considers the matters at hand. [18] Section 52 of the ART Act states that the Tribunal does not have to follow strict evidence rules. Instead, it can decide how to gather information in a way it finds suitable.
[18] Administrative Review Tribunal Act 2024 (Cth), ss 49–50.
Paragraph[19] 5.2 of the Direction sets out principles that provide a framework within which the Tribunal should approach its task.[20]
[19] The Direction’s paragraphs will be capitalised as ‘Paragraphs’ in these reasons.
[20] Direction; [5.2].
Paragraph 6 of the Direction provides that, informed by the above principles, a
decision-maker must consider the Primary and Other Considerations described in Paragraphs 8 and 9 of the Direction where relevant to their decision‑making. Primary Consideration 1 is generally to be given greater weight than other primary considerations.
Paragraph 8 identifies the Primary Considerations and Paragraph 9(1) sets out a non-exhaustive list of Other Considerations.
The Tribunal may find that a consideration specified under Paragraph 9 of the Direction has equivalent or greater weight than a consideration specified under Paragraph 8 of the Direction. Each matter’s specific circumstances affect this weighting.[21] The individual and cumulative weighing process is a matter for individual decision‑maker exercising the relevant power under the Act.[22]
[21] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
[22] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57]; Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 160, [23] (Perram, Colvin and Abraham JJ); Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582, 587 [23] (Mortimer J, as her Honour then was).
THE EVIDENCE
The Tribunal received written evidence during the hearing. The exhibit register is attached to this Decision and marked ‘Annexure A’.
Both parties’ Statements of Facts, Issues and Contentions (SFICs)[23] are in Annexure A. The Tribunal has considered these SFICs.
[23] A SFIC functions similarly to a pleadings document in court proceedings. It helps identify and narrow down the disputed issues, ensuring both parties understand and have the opportunity to respond to each other's arguments.
Mr Chongnee relied on letters of support from his sister Ms Ruatara[24], his sister Ms Chongnee[25], his mother[26], his cousin Mr John Fereti[27], his nephews[28], his brother,[29] and Mr Russel Maynard[30].
[24] Exhibit A11.
[25] Exhibit A12.
[26] Exhibits A15 & A16.
[27] Exhibit A13.
[28] Exhibits A14 & A19.
[29] Exhibit A17.
[30] Exhibit A18.
The Tribunal also heard testimony from Mr Chongnee, Mr Chongnee’s sister Ms Brenda Chongnee, Mr Russel Maynard, Mr Tyler Tran, Mr Chongnee’s mother Mrs Lopeta Chongnee and Ms Clare Fercher-Barrett, a psychologist.
THE PRIMARY CONSIDERATIONS
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
When considering this Primary Consideration 1[31], the Direction provides that the Tribunal should bear in mind that the Government’s highest priority is the Australian community’s safety. The Government is committed to protecting the Australian community from harm because of criminal activity or other serious conduct by non-citizens. Serious conduct can include behaviour or conduct that does not constitute a criminal offence.
[31] Direction: [8.1 (2)]
The Tribunal has considered the nature and seriousness of Mr Chongnee’s conduct to date and assessed the relevant evidence and contentions.
Primary Consideration 1 requires decision-makers to consider two limbs of inquiry:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community if the non-citizen commits further offences or engages in other serious conduct in the future.
Paragraph 8.1.1(1): The Nature and Seriousness of Mr Chongnee’s Conduct to Date
Paragraph 8.1.1(1) sets out a series of factors (in subparagraphs (a) to (h)) that the Tribunal must assess, when relevant, in considering the nature and seriousness of Mr Chongnee’s criminal offending or other conduct to date.
Judge Brabazon QC described the Index Offence, as well as the other offences that occurred at the same time (the related convictions), in his reasons.[32]
[32] Exhibit R1: G8, 49.
Mr Chongnee’s Offending Record involves incidents of family violence and traffic offences such as driving when over the alcohol limit[33], as well as breaches of orders.[34] There was discussion during the hearing about an altercation between Mr Chongnee and his former father-in-law, but no charges appear to have resulted from this incident.[35]
[33] Exhibit R3: SG3, 91.
[34] Exhibit R1: G3, 39.
[35] Oral evidence.
Summarising Mr McLaren’s’ contentions on this element of Primary Consideration 1 as the Tribunal understands them:[36]
[36] Exhibit R2: [26] – [39].
(a)The Index Offence engages all of Paragraph 8.1.1(1)(a), indicating that it very serious.
(b)Mr Chongnee’s conviction for assault occasioning bodily harm while armed is a violent offence against a woman which also must be regarded as very serious.[37] This should be considered as family violence as the victim was his mother-in-law.[38]
(c)His related conviction for enter/in dwelling & break with intent in the night & uses actual violence & is armed with dang/offences/weapon/instrument involves violence and should also be regarded as very serious.
(d)The seriousness of the offending for which Mr Chongnee was convicted is reinforced by the terms of imprisonment to which he was sentenced in relation to each offence, in circumstances where previously he had a limited criminal history.
(e)Mr Chongnee has breached the twenty-year domestic violence order (DVO) that came out of the Index Offence as he has been in contact with his adult daughter.[39]
(f)Mr Chongnee failed to declare his criminal convictions on incoming passenger cards dated 30 November 2012 and 13 July 2016.[40] Initially, on 4 July 2024, he claimed his sister had completed the cards and that the answers were correct because he had maintained good character for 10 years.[41] However, on 20 July 2024, he admitted he had deliberately lied on the cards due to fears of being returned to New Zealand.[42]
(g)Despite this confession, in a statutory declaration filed with the Tribunal on 5 May 2025, he again attempted to minimise his conduct by claiming he had mistakenly failed to declare his convictions due to misunderstanding the questions and receiving assistance with completing the forms. He has therefore provided false or misleading information to the Respondent on three separate occasions: the two false declarations in 2012 and 2016, and the misleading explanation given in July 2024.
(h)Providing false or misleading information in connection with entry into Australia constitutes an offence carrying a maximum penalty of ten years’ imprisonment under s 234 of the Act, and such conduct is specifically addressed in the Direction. While Mr Chongnee acknowledges that this reflects poor judgment and argues it is less serious than his primary criminal offending, the pattern of providing false information over an extended period raises ongoing concerns about his judgment and decision-making abilities.
(i)Mr Chongnee’s poor decision-making skills and continuing disregard for the law are reinforced by his extensive traffic history spanning from 1999 to 2023. His licence has been suspended four times. Half of his traffic offences occurred in and after 2009, showing that even after leaving jail, he continued to show a disregard for Australia’s laws.
[37] Direction: [8.1.1(1)(a)(i) and (ii)].
[38] Direction: [8.1.1(1)(a)(iii)].
[39] Exhibit R1: G29, 127; Exhibit A1: [34] and [48].
[40] Exhibit R1: G5, 34.
[41] Exhibit R1: G13, 97.
[42] Exhibit R1: G5, 34; G13, 97; G14, 99.
Summarising Mr McCarthy’s contentions on the evidence about this element of Primary Consideration 1 as the Tribunal understands them:[43]
(a)Mr Chongnee’s failure to declare past convictions on passenger cards, while serious, is not comparable to his original offending and should not be considered to indicate that he will continue making poor decisions of that magnitude.
(b)His 2011 public urination conviction was an isolated mistake that does not demonstrate disregard for Australian laws or values, noting he has committed no further offences in the thirteen years since.
(c)Mr Chongnee acknowledges that the DVO remains in effect until February 2026 . He explains that approximately five to six years ago, his adult daughter initiated contact through Facebook, they communicated for about one year during which she requested, and he provided, financial support and they ceased contact four to five years ago without any face-to-face meetings.
(d)This technical breach of the DVO should not be considered to demonstrate disregard for Australian laws, as he never initiated contact with his daughter, he respected boundaries when communication ended and gained insight into the impact of his offending through these interactions with his daughter.
[43] Exhibit A1: [21] – [42].
The nature and seriousness of Mr Chongnee’s conduct: The Tribunal’s consideration
When assessing the nature and seriousness of Mr Chongnee’s criminal offending or other conduct to date, the following elements of paragraph 8.1.1(1) are relevant:
·Whether Mr Chongnee’s criminal offending and conduct to date belongs within the types of crimes or conduct viewed very seriously by the Australian government and the Australian community;[44]
·the sentences imposed for his criminal offending;[45]
·the frequency of his offending and the trend of increasing seriousness;[46]
·the cumulative effect of his repeated offending;[47] and
·whether he provided false or misleading information to the Respondent’s department.
[44] Direction; [8.1.1(1)(a)].
[45] Direction; [8.1.1(1)(c)].
[46] Direction; [8.1.1(1)(e)].
[47] Direction; [8.1.1(1)(f)].
The Tribunal does not consider that Paragraphs 8.1.1(1)(d), (h) and (i) are enlivened on the evidence.
The nature and seriousness of Mr Chongnee’s conduct: The Tribunal’s findings.
Having regard for the framework principles at Paragraph and the relevant and applicable aspects of Paragraph 8.1.1 referred to above, the Tribunal finds that after reviewing the evidence:
(a)Mr Chongnee’s Index Offence and the related convictions should be classed as very serious.
(b)Imprisonment is the most severe punishment available. His six-year sentence for the Index Offence conveys the seriousness of his crime but should be assessed relative to the maximum penalty for the Index Offence.
(c)His April 2001 and his July 2012 convictions attract a slight weight.
(d)His DVO breach attracts no weight, given its circumstances.
(e)His misleading information to the Respondent on his arrival cards, compounded by his differing justifications, is concerning.
(f)His driving offences and their long history attract weight, especially given his work driving trucks.
Paragraph 8.1.2: The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The nature of the harm to individuals or the Australian community were Mr Chongnee to engage in further criminal or other serious conduct: The Tribunal’s Consideration
This matter engages Paragraphs 8.1.2(1) and (2).
Summarising Mr McCarthy’s contentions on this point as the Tribunal understands them:[48]
(a)Mr Chongnee’s youth and lack of maturity at the time of the Index Offence are mitigating factors but do not excuse his conduct. The Index Offence occurred during significant emotional turmoil for him following a breakup with his ex-partner and restricted access to his children, compounded by his lack of positive role models and parents who were poor at dealing with emotions.
(b)The Respondent has not given sufficient weight to Mr Chongnee’s remorse, which was demonstrated through his early guilty plea in the Index Offence (and its related offending) and his acknowledgment of mistakes.
(c)The Respondent has failed to properly consider the extent of his rehabilitation, including voluntary completion of anger management, cognitive skills and sex offending programs while in prison, which demonstrate his commitment to self-improvement and understanding of the impact on victims.
(d)He has engaged in personal deterrence through regular routines and positive relationships and is driven not to reoffend while continuing as a positive member of the Australian community.
[48] Exhibit A1: [30]– [40].
Summarising Mr McLaren’s contentions on this point as the Tribunal apprehends them:[49]
(a)Given the serious nature of Mr Chongnee’s convictions, especially for the Index Offence and the related convictions, any re-offending would create a significant risk of physical and psychological harm to victims, while his traffic offending also poses risks to community safety.
(b)Mr Chongnee claims his re-offending risk is negligible, citing completion of rehabilitative courses and minimal contact with persons listed on the DVO. However, Corrective Services records show he completed only four courses while in prison—two relating to sexual offending and two unrelated literacy and numeracy courses—and failed to complete or declined other available programs including anger management.
(c)While he attributes his offending to being young and angry about restricted access to his children, and believes jail helped him understand anger management, he expresses concerns about returning to New Zealand due to family members being gang members and fears of being “forced into a life of drugs and violence.”[50] The ongoing risk of re-offending is evidenced by his continued disregard for Australian laws since leaving jail, reflecting poor judgment and decision-making.
The nature of the harm to individuals or the Australian community were Mr Chongnee to engage in further criminal or other serious conduct: The Tribunal’s finding
[49] Exhibit R2: [41] – [46].
[50] Exhibit R1: G14, 98; G12, 94.
The evidence before the Tribunal dealing with Mr Chongnee’s Index Offence and the related convictions supports the Tribunal inferring and finding that there may be very serious harm to members of the Australian community if Mr Chongnee re-offended in a similar fashion to his Index Offence or the related convictions in the future.
The likelihood of the non-citizen engaging in further criminal or other serious conduct: The Tribunal’s consideration
Assessing the likelihood or risk of Mr Chongnee engaging in further criminal or serious conduct, the Tribunal has evaluated and considered the testimony of Mr Chongnee, Ms Fercher-Barrett, Mr Chongnee’s sister, his mother, Mr Maynard and his nephew Mr Tran, as well as the documentary evidence before it.
To start the evaluative process, the Tribunal notes that the threshold question here is whether there is ‘a’ risk.[51]
[51] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (Sabharwal), at [2]; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019) at [48] – [52] and Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 at [27].
The Tribunal and higher courts have looked closely at the issues relating to risk under s 501(6)(d) of the Act, , from which Paragraphs 8.1.2(1) and (2) are drawn.[52]
[52] See, for example, Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888 (20 April 2020); QKVH and Minister for Home Affairs [2020] AATA 4431 (QKVH 2020); Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019); Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153.
This element of the Direction requires a ‘future‑focused assessment’[53] of the risk an applicant may pose if they reoffend. It should consider the type of resulting harm and how likely it is to happen. In Minister for Immigration and Ethnic Affairs v Guo (Guo),[54] the High Court held that past actions can be valid, though limited, predictors of future behaviour. The majority observed that past events ‘are not a certain guide’ and, depending on circumstances, the probability of an event occurring could be so low as to be ‘safely disregarded’, or at the other extreme ‘may border on certainty’.[55] The majority also observed there are several factors in making such evaluations, and that it is ‘ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events’.[56]
[53] CTK17 v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1211, [90] (Kerr J); see also Murphy v Minister for Home Affairs [2018] FCA 1924, [37] (Mortimer J).
[54] (1997) 191 CLR 559, 574 (‘Guo’).
[55] Ibid 574-5.
[56] Guo, 575.
The Tribunal must determine the realistic level of risk posed by Mr Chongnee as at the time of its decision,[57] with the question being “how serious the risk [is], or whether the risk should be “tolerated”’[58], to the extent that it could be considered an unacceptable risk.[59]
[57] Direction; [8.1.2(2)(b)(ii)].
[58] Murphy v Minister for Home Affairs [2018] FCA 1924 (Mortimer J) (‘Murphy’) [37].
[59] Direction; [8.1.2(1)].
When evaluating whether Mr Chongnee poses ‘more than a minimal or trivial likelihood of risk,’ the Tribunal must consider all ‘available information and evidence’ pertaining to his risk of re-offending, and the ‘rehabilitation achieved’. [60] In undertaking this task, the Tribunal acknowledges that the Australian community may necessarily be expected to accept or assume a degree of risk associated with the holding of visas by non-citizens. The degree of risk that may be acceptable to the community is “inversely related” to both the likelihood of re-offending and the apprehended significance of the possible harm caused by such further offending.[61]
[60] GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (‘GJJF’); Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 (‘Roberts’); GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (‘GJJF’) (n 52) [48]– [52]; Roberts, (n 53) [27].
[61] Dharma and Minister for Home Affairs [2018] AATA 2757, at [26], per Senior Member Taylor.
The Tribunal’s consideration of the risk or likelihood of Mr Chongnee engaging in further criminal or serious conduct will involve assessing the factors that:
(a)facilitate the risk; or,
(b)conversely, hinder or retard the risk.
Adopting this approach enables the Tribunal to assess the risk and then address Justice Mortimer’s question in Murphy as to ‘whether the risk should be “tolerated”’ by the Australian community.
The factors that facilitate the risk of re-offending.
Mr Chongnee’s Index Offence and the related convictions appear to have been driven by his anger, fear of losing access to his children and his consequential poor decision-making, evidenced in part by his pleading guilty when interviewed by police after the events. His testimony demonstrated his clear understanding and insight into the causes of his Index Offence and related convictions.
The factors that hinder or reduce the risk of re-offending – Rehabilitation, remorse and other factors
The Tribunal considers that Mr Chongnee amply evidenced and demonstrated his remorse for the Index Offending and related convictions. He repeatedly stated that he wished he had better handled those events. His remorse has manifested in behavioural changes articulated and demonstrated by him during his testimony and reinforced by Ms Fercher-Barrett’s evidence and report. He spoke to the impact the formal rehabilitation courses[62] he did in cognitive skills, anger management and sex offending had on him and could describe what principles and mental approaches he had taken away from these courses nearly two decades ago. His presentation and his description of his current approach to situations could reasonably be described as stoic in the sense of Marcus Aurelius’ ”Meditations’.[63]
[62] Exhibit R3: STB18, 117.
[63] Aurelius, Marcus. Meditations. Penguin, 2015.
His sister and Mr Maynard’s testimony show that he is now a different person than he was at the time of the Index Offence and related convictions. He has greater insight, tolerance, better decision-making and a more positive and prosocial approach to life than he did over twenty-three years ago when the Index Offence occurred. That period of time also obviously establishes that he has grown older. Ms Fercher-Barrett observed in her testimony that the risk of offending in men declines with age.
He says that he gave up drinking alcohol three years ago, although there is no suggestion in the evidence that alcohol was involved in the Index Offence.
In addition to the formal rehabilitation courses Mr Chongnee undertook in jail, it is clear to the Tribunal from the evidence that he demonstrated good conduct while in jail in terms of both working hard and observing prison rules.[64]
[64] Exhibit R3: STB3 – STB20.
It is clear that his immediate family are both dynamic risk management or protective factors and also constitute the focus or lens that Mr Chongnee applies his life to since prison. They are his world, as evidenced by the reasons given by his sister in testimony about why his second marriage resulted in a peaceful divorce.
Another dynamic risk management factor is time. Not only has a long and substantial period passed without Mr Chongnee re-offending in the same manner as the Index Offence, but it is valid to observe that the general risk of men offending declines as they grow older.
The Tribunal’s Risk Analysis and Consideration
The Tribunal has considered the evidence above, especially the factors that appear to have contributed to Mr Chongnee’s offending, his history of remorse, his rehabilitation efforts and the factors that hinder or reduce his risk of offending.
It has applied Guo, noting that how past events help predict the future depends on:
(c)how likely those events happened,
(d)how often they occurred,
(e)the conditions surrounding them, and
(f)the chance that new events could change the usual pattern.
In deciding if Mr Chongnee might re-offend, the Tribunal looked at several factors. It considered his Index Offence, his extensive expressions and demonstrations of remorse, the passage of time and his sustained behavioural changes over that time. It considered his traffic offence history. It also assessed how unacceptable the consequences of his future actions could be for the Australian community.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct: The Tribunal’s finding
The Tribunal finds that a risk to the Australian community does exist should Mr Chongnee commit further offences or engage in other serious conduct.
The Tribunal, after evaluating the factors described above in terms of what either may facilitate or hinder his re-offending, considers that this re-offending risk is negligible.
The consequences if Mr Chongnee were to re-offend in the same manner as the Index Offence are substantial, and the Australian community’s tolerance for such re-offending is likely negligible.
However, the Tribunal finds that the combination of the negligible likelihood of re-offending, Mr Chongnee’s extensive protective factors and his awareness of the consequences of any future reoffending create a negligible risk that is acceptable.
Conclusion: Primary Consideration 1: Protection of the Australian community
The Tribunal finds that Mr Chongnee’ offending is very serious, that the consequences of any such future offending that repeated the Index Offence and related convictions could result in very serious harm to members of the Australian community and that the likelihood of his future reoffending is very small.
The Tribunal finds that in its totality, this consideration weighs moderately strongly but not dispositively in favour of affirming the reviewable decision.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
Paragraph 8.2 emphasises the Government’s serious concern about allowing non-citizens who commit family violence to enter or remain in Australia. It is enlivened by this matter’s facts.
The High Court has held that paragraph 8.2 of a previous but comparable Ministerial Direction[65] ‘involves a field of operation separate’ to the other primary considerations.[66]
[65] Direction 90.
[66] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 [37], [39] (‘Ismail’).
When assessing how serious the family violence is, decision-makers are directed to consider several key factors:
(a)how often the violence occurred and whether it worsened over time;
(b)the frequency, trend and cumulative impact of repeated violent acts;
(c)what rehabilitation the person has achieved since their last violent act (including whether they take responsibility, understand how their behaviour affected victims and witnesses like children, and have worked to address underlying causes); and
(d)whether they re-offended after being formally warned by courts, police or other authorities about the consequences of further violence, including potential immigration consequences.
The Tribunal consideration: Family violence committed by the non-citizen
Mr Chongnee, both in Mr McCarthy’s SFIC and in oral evidence, conceded that he had committed family violence as the Direction defines it.
The parties differ on the weight to be ascribed to this consideration.
Mr McCarthy contended that there is nothing to support claims of frequency, a trend of increasing seriousness or the cumulative impact of Mr Chongnee’s family violence offending as the latter essentially occurred at the time of the Index Offence and related convictions. Mr McCarthy also conceded the seriousness of those offences in terms of family violence. He argues that this consideration carries a small to moderate weight in favour of affirming the reviewable decision.
Mr McLaren contended that Mr Chongnee’s former wife’s evidence to the sentencing court referenced additional family violence acts and that the DVO’s twenty-year term should be viewed as an expression of the seriousness with which the sentencing court viewed Mr Chongnee’s offending. He argues that this consideration must weigh substantially in favour of affirming the reviewable decision.
The Tribunal’s Findings
The Tribunal finds:
(a)Mr Chongnee’s Index Offence and the related convictions constitute family violence. The Tribunal found above that these were very serious offending conduct.
(b)His former wife’s claims of earlier family violence do not appear from the criminal record and the sentencing decision to have either been made out, or be independent or authoritative in a situation where Mr Chongnee was being afforded procedural fairness.[67]
(c)There is nothing, with the exception of his daughter contacting him, to suggest that Mr Chongnee has committed acts of family violence since the Index Offence and the related convictions. His adult daughter initiated the contact, their communications were not face-to-face, Mr Chongnee was unaware that the DVO was still in force and his evidence was that the communications focused on his daughter seeking financial assistance from him.
(d)As at this hearing, Mr Chongnee has achieved significant and substantive rehabilitation evidenced by his ability to recall and apply the lessons from the formal rehabilitation courses he undertook in jail nearly two decades later, accepts responsibility for his family violence conduct, has insight and empathy into the impact of his acts of family violence and has addressed the factors that led to his family violence conduct
[67] Direction: [8.2(2)(b)
Conclusion: Primary Consideration 2: Family violence committed by the non-citizen
The Tribunal finds that this consideration weighs moderately in favour of affirming the reviewable decision.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
Under this consideration, the Tribunal must consider how its visa decision will affect Mr Chongnee's immediate family members who are Australian citizens, permanent residents, or have the right to stay in Australia indefinitely. It must also assess the strength and nature of his other ties to the Australian community.
When evaluating his community ties, the Tribunal looks at how long he has lived in Australia (especially if he arrived as a young child). It gives less weight to this time if he started offending soon after arrival and more weight to periods where he contributed positively to the community. The Tribunal also considers the strength, duration and nature of his family or social connections with Australian citizens, permanent residents, and others who have the right to remain in Australia permanently.
Summarising Mr McCarthy’s contentions on this Primary Consideration as the Tribunal understands them:[68]
[68] Exhibit A1: [70]– [86].
(a)Mr Chongnee accepts that the Respondent’s delegate correctly found that his ties to Australia should count against cancelling his visa. However, he argues that the decision-maker failed to properly consider all relevant factors and should have given these ties much stronger weight.
(b)The Respondent’s delegate only considered the length of Mr Chongnee’s residence in Australia (thirty-one years) but failed to properly assess three crucial factors:
i.he arrived at the young age of twelve and spent his entire teenage years in Australia, completing his schooling here.
ii.his first offending occurred eight years after arrival, with serious offending occurring ten years after arrival - these are substantial periods that demonstrate he did not begin offending soon after arriving.
iii.he contributed positively to the community for about ten years after arrival before his imprisonment, and more importantly, has spent approximately fifteen years since his release significantly contributing to the Australian community.
(c)Mr Chongnee has deep family ties in Australia that would be severely impacted by his removal. His immediate family includes his mother, two adult children, two sisters, brother, and grandmother, all of whom are Australian citizens or permanent residents.
(d)He argues his nieces and nephews should also be considered immediate family given his role as a primary father figure.
(e)He provides crucial support to his elderly mother and eighty-six-year-old grandmother who raised him from birth, taking them to appointments and providing financial, emotional, and practical support. His mother particularly relies on him since his father's death in 2016, when she became suicidal and required significant assistance.
(f)The Respondent’s delegate failed to properly examine the impact of Mr Chongnee’s removal would have on his siblings and their children. His sisters rely heavily on him as a male role model for their children and for extensive practical support including involvement in sports, teaching life skills, and general care requirements. One sister, Ms Brenda Chongnee, does not work due to her mental health issues and relies on his financial support along with government disability benefits. His removal would cause severe emotional, practical, and financial hardship to all family members.
(g)Beyond immediate family, Mr Chongnee has approximately fifty-three extended family members in Australia, many of whom are citizens or permanent residents, along with numerous friends and community connections. He has maintained consistent employment since his release from prison and is actively involved in community activities, including his nephew's football club and helping feed the homeless. He completed his senior schooling in Australia and established deep educational and social roots.
(h)Mr Chongnee is currently dealing with a serious work injury (a sheet of glass lacerated his forearm) and is involved in a workers' compensation claim. His ability to quickly re-enter the workforce depends on his current Australian employment connections, which would be lost if he were removed. This would also reduce his workers' compensation settlement and significantly impact his ability to financially support his family members in Australia.
(i)Mr Chongnee contends that substantial additional evidence now provided to the Tribunal demonstrates that his ties to Australia should be given much stronger weight against cancellation than originally determined.
Summarising Mr McLaren’s contentions on this consideration as the Tribunal understands them:[69]
(a)Mr Chongnee’s immediate family, including his mother and siblings, along with much of his extended family, live in Australia and are Samoan nationals. However, he is prevented by a domestic violence order from having a relationship with his children until February 2026. This order means he has had no meaningful or ongoing relationship with his children for nineteen years, despite having been contacted by his daughter.
(b)Mr Chongnee argues that his nieces and nephews should be considered immediate family members due to the close nature of their relationships. The Respondent notes that while Mr Chongnee has nine nieces and nephews, he has not specified which ones he spends the most time with or described his specific relationship with each individual child.
(c)Mr Chongnee claims he is financially responsible for his mother and grandmother and takes them to appointments. However, the Respondent's analysis of his financial records shows limited actual support. Between February and June 2024, he transferred $1,120 to his mother, but she also transferred $1,110 back to him during the same period, resulting in a net transfer of only $10. He also transferred $470 to his sister in 2024, though it is unclear whether she sent him any money in return, as occurred with his mother.
(d)Mr Chongnee mentions being injured at work and argues he would more easily find employment in Australia due to his connections, and that his compensation payout would be smaller if he left Australia. However, the government points out that he has provided no evidence about what compensation he is currently receiving or how leaving Australia would actually affect his claim. There is also no recent evidence about his current health, fitness, or when he might return to work.
(e)The Respondent acknowledges that this consideration weighs in Mr Chongnee’s favour. However, the weight given to this consideration should be limited because there is insufficient evidence of his actual ongoing relationships with much of his family, he has no real relationship with his children, and he could continue to support his mother and grandmother financially from New Zealand.
[69] Exhibit R2: [55] – [60].
The Tribunal now considers these contentions and the documentary and oral evidence, including the letters of support referenced above, in terms of each subparagraph of Paragraph 8.3 and makes its findings. In doing so it benefited from an agreed schedule identifying Mr Chongnee’s immediate family (including any minor children), extended family and social and work contacts. This people are in Australia and are Australian citizens, permanent residents, or persons otherwise entitled to remain in Australia indefinitely.[70]
[70] Exhibit R4.
Paragraph 8.3(1)
The Tribunal finds that Mr Chongnee’s immediate family in Australia consists of his grandmother, his mother, his brother and his sisters and their children, most relevantly being Ms Brenda Chongnee’s children.
Based on the written and oral evidence, there are especially close and abiding bonds between Mr Chongnee and immediate family. A decision to affirm the reviewable decision would likely cause sustained emotional and psychological hardship and impose a negative psychological impact on Mr Chongnee’s immediate family, as well as a loss of close physical support for Ms Brenda Chongnee and a diminution in financial and physical support for Mr Chongnee’s mother and grandmother.
Mr Chongnee and his mother both gave detailed evidence about the level of financial and physical support he provides to his mother and grandmother, including paying their rental bond. Ms Brenda Chongnee corroborated these accounts. None of this evidence was contested, notwithstanding the Respondent’s contentions. On balance, the Tribunal finds that Mr Chongnee has provided long-term financial assistance to his mother, grandmother and sister and is likely to do so in future if he is released into the community.
Ms Brenda Chongnee stated without being contested that her brother also provided financial support to her and that he played an active role in looking after all her minor and adult children.
Paragraph 8.3(2)(a)
Mr Chongnee arrived in Australia in 1993.[71] His criminal record shows two minor offences, both resulting in fines, in 2001. His Index Offence occurred some ten years later.[72] The Tribunal consequently considers and finds that Mr Chongnee did not begin offending soon after arriving in Australia.
[71] Exhibit R1: G31, 134.
[72] Exhibit R1: G6, G8.
The uncontested evidence demonstrates that he has made sustained and significant positive contributions to the Australian community as a truck driver over the long course of his working career.[73]
[73] Exhibit R1: G25, G26, G27, G28.
Mr Chongnee has volunteered and contributed to the Australian community for a long period, especially through his connection with the Springfield Panthers football club and by undertaking to provide food to the homeless and disadvantaged youth.
Paragraph 8.3(2)(b)
In evaluating references from family members and friends, the Tribunal remains conscious that they can often frame an applicant’s offending in the best possible light. Care must be taken about the weight placed on references from family members and friends.
Notwithstanding this qualification, the Tribunal found Mr Maynard’s oral evidence to be persuasive in highlighting the strengths of Mr Chongnee’s community connections and the resulting impact.
The Tribunal also considers it likely, although not evidenced, that Mr Chongnee has developed social ties beyond his immediate family during both his residence and working life in Australia.
The Tribunal’s Findings
The Tribunal finds that removing Mr Chongnee will cause emotional, psychological, and financial stress for his immediate family. It will likely harm their mental well-being too.
Based on its consideration and findings against this Primary Consideration, the Tribunal finds that it favours setting the reviewable decision aside.
The effect of affirming the reviewable decision on his family and friends, his positive contributions to the Australian community over time, and the time intervals between his arrival in Australia, when he committed the Index Offence, and his long period of no significant offending all add strong weight to this finding.
Conclusion: Primary consideration 3: The Strength, Nature and Duration of Ties to Australia.
The Tribunal gives this consideration very strong and substantive weight towards setting the reviewable decision aside.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION.
This Primary Consideration is engaged as Mr Chongnee has identified six children under the age of eighteen.[74]
[74] Exhibit R1: G5, G12.
As the Tribunal considers the best interests of each identified minor child, the following factors must be evaluated where relevant:[75]
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
[75] Direction: [8.4(4)]
Summarising Mr McCarthy’s arguments as the Tribunal understands them:[76]
[76] Exhibit A1: [87] – [96].
(a)Mr Chongnee contends that the Respondent’s delegate gave insufficient weight to this consideration.
(b)Mr Chongnee serves as uncle to numerous minor Australian children, some of whom have lived with him. He plays a significant role in their lives, often acting as a father figure. This role is particularly important because the children's biological fathers are not involved in their lives, leaving Mr Chongnee as the primary positive male role model and source of paternal support.
(c)Mr Chongnee is deeply involved in his nieces' and nephew's daily activities and development. He actively participates in their sporting activities including football and swimming, engages in playtime, handles general care requirements such as haircuts and clothing, and provides educational support such as teaching Aria how to ride a bike.
(d)Mr Chongnee argues that the decision-maker failed to properly assess the impact on each child separately, as required by law. There are at least six children who would be greatly impacted by the visa cancellation decision. The impact on each child should be considered individually and then combined cumulatively when determining the overall weight to give this consideration.
(e)The children have a right to have a present father figure involved in their lives to provide support throughout their development. While the children receive necessary support from their mothers, Mr Chongnee's presence and assistance is essential given the crucial support he provides to his sisters and their children. Without Mr Chongnee's help, his sisters would struggle to raise their children properly, which would not serve the children's best interests.
(f)Mr Chongnee provides vital financial support to his sister, which is then used to help support the children. If he were unable to continue this financial assistance, his nieces and nephews would face significant hardship due to lack of financial resources. This is particularly critical for Ms Brenda Chongnee's children, as she does not currently work and relies on Mr Chongnee's support along with government disability benefits due to her mental health issues. Without Mr Chongnee's financial contribution, she would likely be unable to adequately support her Australian children.
(g)Mr Chongnee's involvement is even more crucial than it might ordinarily be because the children's fathers are absent from their lives. This absence makes his role as a stable male presence and support figure particularly significant for the children's wellbeing and development.
(h)The children already struggle with abandonment issues due to their absent fathers. Both Mr Chongnee and his sisters are concerned that removing Mr Chongnee from Australia would only worsen these existing abandonment issues, causing additional psychological harm to the children.
(i)The immediate consequences of Mr Chongnee's removal would have lasting effects throughout the children's formative years. Both Mr Chongnee and his sisters worry that this disruption would seriously limit the children's future opportunities and life prospects.
(j)Based on all these factors, Mr Chongnee argues that this consideration should not merely be given “some weight” but should receive significant weight in favour of a decision not to cancel the visa, reflecting the substantial and multifaceted impact his removal would have on these Australian children.
Summarising Mr McLaren’ arguments as the Tribunal understands them:[77]
(a)The relevant policy requires decision-makers to consider the impact on minor children and their best interests at the time the decision is expected to be made. This consideration must focus specifically on how the visa cancellation would affect the wellbeing of any children involved.
(b)Mr Chongnee refers to six of his nieces and nephews as minor children who would be affected by his removal. However, he has not provided birth dates for two of these children. This lack of complete information makes it difficult to properly assess the impact on all the children mentioned.
(c)While Mr Chongnee argues that the best interests of each child must be considered separately, he has not provided specific information about each individual child. He has not explained how long his involvement with each child has been or made tailored arguments about how each child would be specifically affected by his removal.
(d)Mr Chongnee describes being involved in his nieces' and nephews' lives, including taking them into the community and acting as a father figure to them. However, the government notes that all of these children appear to have at least one parent who is performing a parental role, which reduces the significance of Mr Chongnee's involvement.
(e)For the children who are closer to their majority, less weight should be given to their interests. In the case of the youngest child, Mr Chongnee has clearly had a limited relationship with that child, given their young age and the relatively short time period involved.
(f)The Respondent contends that the nature of Mr Chongnee's criminal conduct and his risk of reoffending should reduce the extent to which he could be considered to play a positive parental role. Any future family violence offending could seriously harm the children. His long history of poor decision-making demonstrates behaviour that should not be copied or emulated by children. Additionally, his traffic offending could potentially cause harm to the children by increasing his risk of being involved in dangerous incidents.
(g)Based on these factors, the government contends that only minor weight should be given to this consideration in Mr Chongnee's favour. The combination of limited specific information about individual children, the presence of other parental figures, the advanced age of some children, and concerns about Mr Chongnee's potential negative influence all contribute to reducing the significance of this consideration in the overall decision-making process.
[77] Exhibit R2: [61] – [67].
The Tribunal finds:
(a)Mr Chongnee lives with his sister, Ms Brenda Chongnee. Three of her children are minors – Children A (fifteen), B (eleven) and C (five).
(b)Mr Chongnee’s other sister, Ms Anastasia Chongnee, and her husband have four minor children – Children D (sixteen), E (sixteen), F (fourteen) and G (twelve).
(c)There is evidence of the closeness of the ties between Mr Chongnee and Child A.[78]
(d)Mr Chongnee’s brother and his wife have two minor children – Children H (eight) and I (one and a half).
(e)There is no evidence that Mr Chongnee’s offending or criminal conduct had or has any impact, negative or positive, on any of the identified children.
(f)There is nothing to suggest that his history of family violence may expose the minor children to risk.
(g)Mr Chongnee has a deep and enduring relationship with each of Children A, B and C. He lives with them when not with his mother and grandmother. When Brenda Chongnee was in prison for six months and then eight months, he took on the role of a parent and cared for their upbringing. When their biological fathers have not been present, Mr Chongnee has filled the gap. He is more than likely to play a positive parental role for each of them until they reach adulthood. Based on the evidence of Ms Brenda Chongnee[79] and Child A[80], Mr Chongnee is the foundation of this family – he is what makes it a family. Separation would likely have very serious and adverse consequences, despite the ubiquity of digital communications.
(h)Mr Chongnee has a strong non-parental relationship with each of Children D, E, F and G, noting that Ms Anastasia Chongnee and her husband fulfil the parental roles. Mr Chongnee is likely to play a strong supportive role, and any separation would have adverse consequences.
(i)Mr Chongnee has a lesser but positive relationship with Children H and I. His brother and his wife live interstate. Separation would more than likely have adverse consequences, but this is qualified by the existing distance between Mr Chongnee and the children.
(j)Apart from Child A, there is no known views from the other children.
[78] Exhibit A14.
[79] Exhibit A12.
[80] Exhibit A14
On balance, each minor child’s interests would be best served by setting the reviewable decision aside.
Conclusion: Primary consideration 4: Best interests of minor children in Australia affected by the decision
This consideration supports setting the reviewable decision aside and carries very strong and substantive weight.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.5(1) is a deeming provision. It relies on Paragraph 8.5(4) and sets a community standard for the outcomes of serious behaviour or an unacceptable risk of such behaviour. Paragraph 8.5(2) extends the threshold to certain specified types of conduct. Paragraph 8.5(3) states that the expectations of the Australian community apply even if the non-citizen does not pose a clear risk of physical harm. Paragraph 8.5(4) aligns with the reasoning of the Full Court of the Australian Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (“FYBR”).
FYBR explains that the 'deemed community expectation' usually leads to visa cancellation. However, it also states that the decision-maker must decide if acting on this expectation is appropriate in each case.[81] [82]
[81] Ibid at 473 [75]– [76] (Charlesworth J).
[82] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 417 ALR 36, [51]-[52].
The Tribunal’s consideration
Arriving in Australia in 1993, Mr Chongnee has resided here for approximately thirty-two years, arriving as a thirteen year old. This period of time enlivens Paragraph 5.2(6)’s higher tolerance.
The Tribunal has found Mr Chongnee’s Index Offence and the related convictions to be very serious. It has also found that he committed acts of family violence. These findings outweigh the higher tolerance acknowledged above, noting that Paragraph 8.5(2) states that the Australian community expects the Australian government should cancel the visas of non-citizens involved in these categories of conduct.[83]
[83] Direction; [8.5(2)(a) & (c)].
The Tribunal is satisfied that Mr Chongnee has not met the Australian community’s expectations due to his serious criminal offending.
Mr McCarthy contends that Mr Chongnee’s age when he arrived in Australia and his time here[84] counterbalance the higher level of scrutiny attendant on his very serious offending. Consequently, this consideration should weigh moderately in favour of affirming the reviewable decision.[85]
[84] See JYVT v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2024] AAT 3617, [63] – [64].
[85] Exhibit A1: [97] - [113].
Mr McLaren contends that Mr Chongnee’s circumstances, to the extent that they enliven Paragraph 8.5(2), outweigh where they enliven Paragraph 5.2(6)’s higher tolerances. of that the expectations of the Australian community apply regardless of whether Mr Chongnee poses a measurable risk of causing physical harm to the Australian community.[86]
[86] Exhibit R2: [68] – [77].
The Tribunal finds that this Primary Consideration supports affirming the reviewable decision.
Conclusion: Primary consideration 5: Expectations of the Australian community
This consideration weighs moderately in favour of affirming the reviewable decision.
OTHER CONSIDERATIONS
The Tribunal now considers each of the three subparagraphs (a), (b) and (c) set out in Other Considerations from Paragraph 9.
OTHER CONSIDERATION (A): LEGAL CONSEQUENCES OF THE DECISION
Sections 189 and 198 of the Act state that unlawful non-citizens in the migration zone must be detained. They should be removed from Australia as soon as reasonably possible. A non-citizen whose visa has been cancelled or refused under s 501 or s 501CA of the Act faces the following consequences:
(a)Their status in Australia is unlawful.
(b)They are subject to being detained or removed.
(c)Any other visas they hold or any visa applications they have made are cancelled or refused.
(d)They are prohibited from applying for other visas while in the migration zone other than a Protection visa or a Bridging R visa.[87]
(e)Periods of exclusion from Australia and special return criteria may apply.
[87] Section 501E of the Act. Further, Criterion 5001 of Schedule 5 to the Migration Regulations 1994 (Cth) prohibits the grant of a visa to person outside Australia whose visa has been cancelled under s 501.
Mr McLaren contends that there is no evidence to suggest that this consideration is relevant. Consequently, the Respondent submits that these considerations are not relevant to the Tribunal in this matter.[88]
[88] Exhibit R2: [78].
Mr McCarthy makes no contentions on this consideration.
There are several legal consequences that follow from a non-revocation decision by the Tribunal that an applicant may find adverse.
Mr Chongnee has not specifically contended that he engages Australia’s protection obligations, nor does the information before the Tribunal clearly indicate that non-refoulement obligations arise in relation to him, as opposed to raising a concern about the risk of harm.
It follows that the legal consequence of a decision to affirm the reviewable decision is that he will remain in detention until he is removed from Australia.
Mr Chongnee’s Visa was not a protection visa, and he is not barred from applying for a protection visa.
The Tribunal’s finding
The Tribunal finds that in these circumstances, in particular as set out above, this Other Consideration supports setting the reviewable decision aside.
The Tribunal further finds that this consideration carries a slight weight in favour of setting the reviewable decision aside.
OTHER CONSIDERATION (B): EXTENT OF IMPEDIMENTS IF REMOVED
Paragraph 9.2(1) of the Direction provides:
Decision-makers must consider 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.
Summarising Mr McCarthy’s contentions as the Tribunal comprehends them:[89]
(a)Mr Chongnee currently suffers from anxiety and depression, for which he takes prescription medication. He is deeply concerned that his mental health will deteriorate significantly if removed to New Zealand due to the lack of social ties and family support networks there, potentially causing irreversible psychological harm.
(b)Mr Chongnee has no substantial ties in New Zealand, having lived his entire teenage and adult life in Australia, and has no employment connections there. Due to this lack of employment ties, combined with his work injury that limits his arm's functionality, he is concerned about his ability to find appropriate work and support himself financially. This situation is worsened by his responsibility to provide financial support to his family members in Australia.
(c)If removed to New Zealand, Mr Chongnee would likely receive a smaller workers' compensation settlement, which would directly impact his financial position. He would also experience significant practical and emotional hardship due to being separated from immediate contact with his friends and family support networks.
(d)Mr Chongnee may face further difficulties upon arrival in New Zealand because his cousins who live there are gang-affiliated. These family members could create significant problems for Mr Chongnee if he chooses not to associate with them, potentially putting him in a dangerous or compromising position.
(e)The government decision-maker correctly determined that the extent of impediments Mr Chongnee would face if removed weighs in favour of a decision to set the reviewable decision aside.
[89] Exhibit A1: [114] – [120].
Summarising Mr McLaren’ contentions as the Tribunal apprehends them:[90]
(a)The Respondent notes that while Mr Chongnee has not lived in New Zealand since childhood, there are no apparent language or cultural barriers that would prevent his reintegration. Additionally, his movement records show he has left Australia on two occasions, presumably returning to New Zealand, suggesting some ongoing connection to the country.
(b)Regarding Mr Chongnee's workplace injury and compensation claim, the Respondent argues there is no evidence suggesting he would not continue receiving compensation if he returned to New Zealand. While Mr Chongnee claims he would receive a smaller payout in New Zealand, the Respondent contends he has provided no basis for this assertion. The Respondent also argues that Mr Chongnee would have access to generally comparable healthcare in New Zealand for both his workplace injury and his anxiety and depression, for which he currently receives prescription medication.
(c)The Respondent dismisses Mr Chongnee’s concerns about potential difficulties with gang-affiliated cousins in New Zealand as mere speculation, arguing that these concerns rise no higher than unfounded assumptions about what might happen.
(d)The Respondent acknowledges that while Mr Chongnee may face some barriers to establishing himself in New Zealand, he could maintain basic living standards through available social security and his employment history. Any employment difficulties arising from his injury should be considered in the context of his ongoing compensation claim. Although the Respondent concedes this consideration weighs in Mr Chongnee's favour, only limited weight should be given to it, noting that other considerations should generally receive less weight than primary considerations under the relevant policy framework.
[90] Exhibit R2: [74] – [78].
The Tribunal’s findings
After evaluating the written and oral evidence, the Tribunal finds that:
(a)With the exception of his cousin, Mr Chongnee has no significant family connections in New Zealand.
(b)His concern about his cousin’s gang affiliations appears to be based more in terms of his values clashing with the values of his cousin and the gang, rather than being drawn into the gang.
(c)Based on his workers compensation lawyer’s evidence, presented orally by Mr McCarthy, Mr Chongnee risks losing his entitlement to compensation if he is removed.
(d)If removed, Mr Chongnee is at risk of worsening depression, although treatment for depression is likely available in New Zealand.
(e)His experience as a truck driver should facilitate him finding employment in New Zealand, subject to his arm injury.
(f)Mr Chongnee previously travelled to Bali and Samoa, rather than New Zealand.
The Tribunal’s consideration
Working from the finds above, the Tribunal now considers Paragraph 9.2(1)’s subparagraphs.
The phrase “(in the context of what is generally available to other citizens of that country)” in Paragraph 9.2(1) is of significance because it establishes the measure to assess impediments against for the purposes of deciding whether another reason exists to set aside the reviewable decision.
Sub-paragraph 9.2(1)(a) – the non-citizen’s age and health
Mr Chongnee is forty-four.
Mr Chongnee appears in reasonable physical health but has a level of impairment due to a prior work injury.
He has or has had depression or depressive symptoms for a sustained period.
The Tribunal considers Mr Chongnee’s depressive state or depression by referencing the Federal Court’s decision in Holloway v Minister for Immigration, Citizenship and Multicultural Affairs.[91] It focuses on paragraphs [12] – [14] of that decision. It is more likely than not that, if he is deported to New Zealand, his depressive symptoms or his depression would be exacerbated. In turn, this health-related issue would adversely affect his efforts to achieve basic living standards there.
[91] Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126.
The Tribunal considers, drawing on its assessment of his family bonds in Primary Consideration 3, that Mr Chongnee likely faces a significant and substantial loss of emotional and psychological support if separated from his immediate family and removed to New Zealand.
Subparagraph 9.2(1)(b) – any substantial language or cultural barriers
The Tribunal considers that Mr Chongnee, based on his oral testimony and the evidence before the Tribunal, would not face any significant linguistic difficulties if he returned to New Zealand.
The Tribunal, applying the same reasoning, also considers that Mr Chongnee is unlikely to face any major cultural issues.
Subparagraph 9.2(1)(c) – any social, medical and/or economic support available to them in that country
The evidence before the Tribunal indicates that Mr Chongnee likely faces relatively less social, medical and economic support in New Zealand than in Australia. This is partly due to differences between the two countries and is outside the Tribunal’s consideration. It is also partly due to losing his network of Australian healthcare providers in relation to his physical and mental conditions. He would have to establish a new network which takes time. Consequently, the Tribunal considers that Mr Chongnee may be confronted by impediments in re-establishing himself and maintaining basic living standards in the context of what is generally available to other New Zealand citizens.
Mr Chongnee does not appear to have any active personal prosocial networks available to him in New Zealand.
The Tribunal’s finding
The Tribunal has considered above the extent of any impediments that Mr Chongnee, if removed from Australia to New Zealand, will face in establishing himself and maintaining basic living standards.
The Tribunal finds that if Mr Chongnee returns to New Zealand, he will likely face emotional, psychological, practical, and financial difficulties. He may also be at risk for both his physical and mental health. He may have difficulties in establishing social, medical and economic supports. His mental and physical condition could make these difficulties worse. He is unlikely to face any language or cultural barriers
After assessing its totality, the Tribunal finds that this Other Consideration carries strong weight in favour of setting aside the reviewable decision.
OTHER CONSIDERATION (C): IMPACT ON AUSTRALIAN BUSINESS INTERESTS
There is no evidence and testimony before the Tribunal enlivening this consideration.
THE TRIBUNAL’S FINDINGS
Having regard to the Direction and to the totality of the evidence, the Tribunal holds the view that it should not exercise the power conferred by s501(2) to cancel Mr Chongnee’s visa.
In reaching this conclusion, the Tribunal had regard to the Direction’s considerations. With regard to the weight the Tribunal has allocated to each of these Primary and Other Considerations, it finds as follows.
Primary Consideration 1 weighs moderately strongly but not dispositively in favour of affirming the reviewable decision.
Primary Consideration 2 weighs moderately in favour of affirming the reviewable decision.
Primary Consideration 3 carries very strong and substantive weight towards setting the reviewable decision aside.
Primary Consideration 4 carries very strong and substantive weight towards setting the reviewable decision aside.
Primary Consideration 5 weighs moderately in favour of affirming the reviewable decision.
Other Consideration (a) carries a slight weight in favour of setting the reviewable decision aside.
Other Consideration (b) carries strong weight in favour of setting the reviewable decision aside.
Other Consideration (c) carries neutral weight.
CONCLUSION
The Tribunal has assessed and considered all the findings and the weights it has identified under the relevant considerations as set out above, applying the process outlined at length in Demir v Minister for Immigration, Citizenship and Multicultural Affairs at [21].[92]
[92] Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870.
The Direction states that Primary Consideration 1 is "generally" to be given greater weight than other primary considerations. It also states that primary considerations should generally receive greater weight than other considerations. However, the Tribunal considers that the use of the word “generally” preserves the decision-makers' discretion rather than creating an absolute rule that would always require giving the protection consideration more weight than all other factors combined. Such an approach would effectively eliminate the statutory discretion available to decision-makers and override the required holistic weighing and balancing exercise. Legal authorities, including decisions in Blake[93], Aksu[94], and Lu[95] cases, support the continuing existence of a discretion and reinforce that decision-makers must consider the specific circumstances of each case when deciding whether to exercise their discretion.
[93] Blake and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 492 (2 February 2024).
[94] Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514 (4 May 2001).
[95] Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340.
The Tribunal determined that in this particular matter, the greater weight that should normally be given to protecting the Australian community is not applicable in light of the circumstances, the passage of time between the Index Offence and the reviewable decision and the other evidence. After conducting a comprehensive, holistic and integrated assessment of all the specific findings and weights attributed to each relevant primary consideration and other considerations, and additional considerations in this case, the Tribunal concluded that the balance of all factors supports setting the reviewable decision aside.
DECISION
Applying s 105(c)(i) of the Administrative Review Tribunal Act 2024 (Cth), this Tribunal sets aside the decision made by a delegate of the Respondent on 6 December 2024 and substitutes it with a decision to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
Date(s) of hearing: 22 & 23 May 2025 Advocate for the Applicant: Mr McCarthy of Sambi Legal. Advocate for the Respondent: Mr McLaren of Mills Oakley Lawyers.
ANNEXURE A: EXHIBIT REGISTER
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
RESPONDENT SUBMISSIONS
R1
G-Documents
R
10 April 2025
10 April 2025
R2
Respondent’s Statement of Facts, Issues and Contentions
R
16 May 2025
16 May 2025
R2
Supplementary Tender Bundle
R
16 May 2025
19 May 2025
R4
Agreed Schedule of Applicant’s Nieces and Nephews
R
23 May 2025
23 May 2025
APPLICANT SUBMISSIONS
A1
Applicant Statement of Facts , Issues and Contentions
A
5 May 2025
6 May 2025
A2
Applicant’s Unsworn Undated Statutory Declaration
A
5 May 2025
6 May 2025
A3
Applicant’s Additional Statutory Declaration
A
20 May 2025
20 May 2025
A4
Occupational therapist’s letter
A
28 June 2024
6 May 2025
A5
Patient information and preparation sheet
A
Not dated
6 May 2025
A6
Photos with nieces & nephews
A
Not dated
6 May 2025
A7
Proof of financial support of mother
A
8 May 2024
6 May 2025
A8
Proof of financial support of sister
A
22 March 2024
6 May 2025
A9
Work capacity certificate - worker's compensation
A
9 April 2024
6 May 2025
A10
Family identity documents
A
Not dated
19 May 2025
A11
Character reference – Anastasia Elena Ruatara
A
7 May 2025
19 May 2025
A12
Character reference – Brenda
A
6 May 2025
19 May 2025
A13
Character reference – John Fereti
A
3 May 2025
19 May 2025
A14
Character reference - Lennox
A
Not dated
19 May 2025
A15
Character reference Lopeta -1
A
Not dated
19 May 2025
A16
Character reference Lopeta -2
A
6 May 2025
19 May 2025
A17
Character Reference Phillip
A
6 May 2025
19 May 2025
A18
Character Reference – Russel Maynard
A
18 May 2025
19 May 2025
A19
Character Reference – Tyler
A
Not dated
19 May 2025
A20
Medical Certificate
A
6 May 2025
19 May 2025
A21
Psychologist Report
A
18 May 2025
19 May 2025
[8] Criminal Code 1899 (Qld): s 349
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