Chouttu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2024] AATA 237

Chouttu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 237 (12 January 2024)

Division:GENERAL DIVISION

File Number:          2020/5136

Re:Jeffrey Chottu

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis

Date of decision:                   12 January 2024

Date of written reasons:        22 February 2024

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), this Tribunal sets aside the decision made on 19 August 2020 by a delegate of the Respondent and substitutes it with a decision to revoke the mandatory cancellation of the Applicant’s Class BC Subclass 100 Spouse visa.

..........................[SGD]............................

Senior Member Theodore Tavoularis

Catchwords

MIGRATION – remitted to the Tribunal for the second time- non-revocation of mandatory cancellation of a visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – where Applicant fails the character test - where Applicant has a lengthy criminal history – where Applicant committed acts of family violence against multiple victims -where the Applicant has multiple protective factors in community – Tribunal finding the risk of reoffending moderated by the protective factors- protection and expectations of the Australian community along with family violence committed by the Applicant outweighed by  ties to Australia, interests of minor children, impediments upon return and impact on victims- Tribunal finding another reason to revoke the mandatory cancellation decision- decision under review set aside and substituted.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Domestic and Family Violence Protection Act 2012 (Qld)
Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases

Bartlett v The Minister for Immigration and Boarder Protection (Migration) [2017] AATA 1561
Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870
Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairsv Thornton [2023] HCA 17
PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 1235
PNLB and Minister for Immigration and Border Protection [2018] AATA 162

Walker v Minister of Home Affairs [2020] FCA 909

Secondary Materials

Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023).

REASONS FOR DECISION

Senior Member Theodore Tavoularis

22 February 2024

INTRODUCTION

1. Mr Jeffrey Chottu (‘the Applicant’) is a 30 year old man, born in the Solomon Islands in August 1993. He first arrived in Australia in October 2000 as a seven year old.[1] He then departed Australia in February 2001 and remained offshore for a period of about six months, arriving back in Australia in August 2001.[2] Since his arrival in 2001 he has remained onshore and therefore it can be safely concluded that he has been a permanent resident of Australia since 2001.

   [1] R1, p 123.

   [2] Ibid.

2. On 16 September 2019, while the Applicant was serving a full-time custodial term of imprisonment, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) mandatorily cancelled the Applicant’s Class BC Subclass 100 Spouse visa (‘the Visa’) pursuant to s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’).[3] Consequent upon  this cancellation decision, the Applicant was invited to make representations to the Respondent’s Department for the purpose of revoking the mandatory cancellation of his Visa. The Applicant made the requisite representations to the Respondent’s Department on 23 September 2019.[4]

   [3] R1, pp 89-96.

   [4] Ibid, pp 19-40.

3. On 19 August 2020, a delegate of the Respondent made a decision to not revoke the earlier mandatory cancellation of the Applicant’s Visa.[5] For the purposes of these Reasons, the delegate’s decision made on 19 August 2020 will be hereinafter referred to as the ‘Decision Under Review’. The Applicant was notified of the Decision Under Review on 20 August 2020.[6] On 24 August 2020, the Applicant lodged the instant application in this Tribunal seeking review of the delegate’s non-revocation decision made on 19 August 2020.[7] I am satisfied this Tribunal has jurisdiction to review the non-revocation decision pursuant to s 500(1)(ba) of the Act.

   [5] Ibid, p 44-58.

   [6] Ibid, p 157.

   [7] Ibid, pp 3-14.

   PROCEDURAL HISTORY

4. This application number (2020/5136) has a storied history in this Tribunal. On 12 November 2020 this Tribunal (differently constituted) affirmed the Decision Under Review. This decision of the Tribunal was quashed by the Federal Court of Australia on 28 November 2022 and remitted to this Tribunal for reconsideration according to law.[8]

   [8] R2, pp 515-541.

5. On 22 June 2023 this Tribunal (differently constituted) again affirmed the Decision Under Review.[9]  The Applicant again successfully appealed the Tribunal’s decision resulting in a second remittal by order of the Federal Court of Australia dated 25 July 2023 remitting this matter for reconsideration according to law.[10]

   [9] R2, pp 1015 – 1147.

   [10] Ibid, p 1148.

6. Therefore, the instant proceeding comprises the third ventilation of this matter before this Tribunal. While evidence ventilated in those two earlier Tribunal proceedings may be taken into consideration for present purposes, the instant proceeding is nevertheless a hearing de novo. Revocation or affirmation of the decision under review by this Tribunal is, by definition, a stand-alone merits-based review of the evidence.

7. The instant hearing proceeded before me by video on 11 December 2023 (‘the Hearing’). At the commencement of the Hearing the parties agreed that the Tribunal’s list of material should be consolidated into an agreed Exhibit List[11] which is attached to these Reasons marked as ‘Annexure A’. This Hearing received oral evidence from:

   ·the Applicant;

   ·Ms Roselyn Chottu, the Applicant’s sister; and

   ·Ms JKJ, the Applicant’s mother.

   [11] See generally, Transcript, p 39, lines 1-14.

   LEGISLATIVE FRAMEWORK

8. 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.

9. I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act.

10. There are therefore two issues presently before the Tribunal:

    (a)whether the Applicant passes the character test; and if not

    (b)whether there is another reason to revoke the mandatory cancellation of the Applicant’s Visa.

    Does the Applicant pass the character test?

11. The parties agree that the Applicant does not pass the character test because he has a ‘substantial criminal record’ due to him being sentenced to a term of imprisonment of 18 months on 19 June 2019.[12] Accordingly, I find that he does not pass the character test and cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his Visa to be revoked.

    [12] R2, p 601, [6]-[9]; p 711, [2]; Transcript p 44, lines 22-23.

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

12. In considering whether there is another reason to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction No. 99 – visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction’ or ‘Direction 99’) has application.[13]

    [13] Direction No 99 commenced on 3 March 2023. It replaces Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.

13. For the purposes of deciding whether or not to revoke the mandatory cancellation of a

    
    

    non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are as follows:

    1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

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

    4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

    6

    Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the

    
    

    non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

14. Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:

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

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

    (3)the strength, nature and duration of ties to Australia;

    (4)the best interests of minor children in Australia; and

    (5)expectations of the Australian community.

15. Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:

    (a)legal consequences of the decision;

    (b)extent of impediments if removed;

    (c)impact on victims; and

    (d)impact on Australian business interests.

    PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY

16. In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to

    keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by

    
    

    non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

17. In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:

    (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.

18. I will consider each in turn.

    The nature and seriousness of the Applicant’s conduct to date

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

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

    (i)     violent and/or sexual crimes;

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

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

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

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

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

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

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

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

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

    (e)the cumulative effect of repeated offending;

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

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

    (h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

    The Applicant’s evidence about the nature of his offending

20. At the commencement of his evidence-in-chief, the Applicant was taken to his criminal record. He readily agreed about the broad range of offending he had committed including, but not limited to, drug offences, contravening lawfully-provided directions or requirements, failure to appear in accordance with a bail undertaking, offending involving the operation of a motor vehicle, offences of violence and property offences. He also readily agreed that he has compiled an extensive criminal record in Australia.[14]

    [14] See generally, Transcript, p 6, lines 34-43.

21. He also agreed that his offending should now be viewed as being ‘very serious’.[15] He was asked (during evidence-in-chief) to reflect and think about his criminal offending and to tell the Tribunal how he felt about it. He spoke of being ‘…disappointed in myself and doing this to all of my family, putting them through this and now things have gotten worse.’[16] He expressed remorse about his offending and spoke about ‘…the people I’ve [sic] -and just the ordinary people that I’ve hurt too. Just a lot of things I could have done better… ’[17]

    [15] Transcript, p 6, line 45.

    [16] Transcript, p 7, lines 13-14.

    [17] Transcript, p 7, lines 17-18.

22. He told the Hearing that he had been in immigration detention for close to four years and he spoke of the toll this period of time out of the community and away from his family had taken on him: ‘It’s sitting here and being away from my family and seeing them struggle, seeing, you know, your mum, your daughter get sick – very sick – and you can’t do nothing to help or just, you know, just even be there for them.’[18]

    [18] Transcript, p 7, lines 28-31.

    Summary of the Applicant’s offending

23. The totality of the Applicant’s offending history involves convictions for the commission of some 42 offences committed between May 2008 and April 2019. This offending was dealt with at 10 sentencing episodes commencing on 17 March 2009 with the final such episode occurring on 19 June 2019.

24. However, and critically for present purposes, is the reality that the Applicant committed his first 19 offences as a juvenile and the balance of his offences as an adult. This invites discussion about the extent to which this Tribunal can have regard to his convictions as a juvenile at the respective sentencing hearings on 17 March 2009, 28 April 2009, 22 April 2010 and 3 June 2010. The resulting question is whether the High Court’s decision in Thornton[19] restricts this Tribunal’s capacity to have regard to these convictions in circumstances where none of the Applicant’s offending committed as a juvenile in any of the four abovementioned sentencing episodes resulted in the recording of a conviction.

    [19] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairsv Thornton [2023] HCA 17.

25. In assessing the extent to which Thornton binds this Tribunal, it must be understood Thornton specifically stands for the proposition that s 184 of the Youth Justice Act 1992 (Qld) and s 12(3) of the Penalties and Sentences Act 1992 (Qld) engage the provisions of s 85ZR(2) of the Crimes Act 1914 (Cth) such that where an offence is committed by a person when they were a child, and no conviction is recorded despite a finding of guilt, that offence is not to be taken as a conviction for any purpose.

26. Out of an abundance of caution and pursuant to the authority of Thornton, I will not take into account the Applicant’s commission of 19 offences dealt with at the sentencing episodes on 17 March 2009, 28 April 2009, 22 April 2010 and 3 June 2010 when he was a child. In addition, my findings about the nature and seriousness of the Applicant’s offending should be read in light of the extent to which Thornton applies to his criminal history for present purposes. Both representatives agreed with this position and confirmed that this Tribunal can only take into account offending committed by the Applicant that was convicted at sentencing hearings commencing on 31 August 2015 until 19 June 2019.

1. Thus, taking into account the impact of Thornton on the Applicant’s offending history for present purposes, it looks like this:

   ·total offences committed: 23;

   ·period of offending: July 2015 until April 2019;

   ·total sentencing episodes: six, commencing on 31 August 2015 until 19 July 2019.

2. The Applicant has also compiled a not insignificant traffic history in this country. Putting aside the entries in the history relating to suspension of his driving privileges as a result of his payment and non-payment of resulting fines, his traffic history[20] – in terms of offences actually committed – looks like this:

   ·29/12/2014: unlicensed driving, convicted and fined $150;

   ·3/3/2016: unlicensed driving, convicted and fined $350, disqualified from driving for one month;

   ·14/3/2016: unlicensed driving, convicted and fined $350;

   ·15/3/2016: unlicensed driving, convicted and fined $600 and disqualified from driving for two months;

   ·28/2/2019: failed to stop motor vehicle as soon as practicable, jailed for 50 days, disqualified from driving for two years;

   ·2/03/2019: unlicensed driving, convicted and not fined;

   ·2/03/2019: careless driving/due care and attention, incurred three demerit points, convicted and not fined, jailed for three months; and

   ·2/03/2019: drive under influence of drugs (other than a relevant drug), convicted and jailed for 30 days, disqualified from driving for six months (cumulative upon earlier disqualification of three months imposed on the same day for other traffic offending).

   [20] R1, pp 368-369.

   Paragraph 8.1.1(1)(a)

3. Paragraph 8.1.1(1)(a) of the Direction contains three categories of offending which, if committed by a non-citizen seeking restoration of a visa, are said to compel a merits-based decision-maker to find such offending to be ‘very serious’. The three categories are (1) violent and / or sexual crimes;[21] (2) violent offending against women or children;[22] and

   
   

   (3) family violence conduct regardless of whether or not a sentence was imposed.[23]

   [21] Paragraph 8.1.1(1)(a)(i) of the Direction.

   [22] Paragraph 8.1.1(1)(a)(ii) of the Direction.

   [23] Paragraph 8.1.1(1)(a)(iii) of the Direction.

4. In August 2016 at a Magistrates Court in South-East Queensland, the Applicant was dealt with for offending involving two contraventions of domestic violence orders. The learned sentencing magistrate imposed a nine-month sentence of imprisonment for offending arising from an incident between the Applicant and his then partner. The Applicant’s violent conduct towards her resulted in a substantial injury to her knee, injuries to her face as well as damage to a wall within the property where the incident occurred. In his sentencing remarks, the learned sentencing Magistrate observed that the Applicant’s offending behaviour was ‘something that no right-minded male would consider as a way to treat their partner and the mother of their child’[24] and that the conduct was ‘entirely inappropriate and unacceptable in any community.’[25]

   [24] R1, p 72, lines 4-5.

   [25] R1, p 72, lines 8-9

5. The material also contains reference to a report from the Department of Child Safety (‘DCS’) which reveals that on 20 November 2018, an incident occurred between the Applicant and his former partner while she was pregnant with their biological child, Child A. The report records that during this incident, the Applicant repeatedly punched his victim/former partner in an attempt to kill the unborn child, that he attempted to strangle her, that he pushed her to the ground and that he repeatedly hit her head on the floor.[26]

   [26] R1, p 385.

6. The above-described incidents clearly constitute crimes of a violent nature against women. With reference to the offending against the former partners, this was clearly conduct involving the perpetration of family violence. It is impossible to cavil with the proposition and the finding that this violent offending against women, must be found to be ‘very serious’.

   Paragraph 8.1.1(1)(b)

7. The chapeau to this paragraph does, without particular limitation, categorise certain unlawful conduct that the Australian Government and the Australian community regard as being ‘serious’. The Applicant has no conviction arising from him causing a person to enter into a forced marriage or as a result of him otherwise being a party to a forced marriage.[27] Given the formulation of the character test referable to the instant decision, which test the Applicant fails as a matter of law,[28] I am not required to make any finding about whether any of his conduct forms the basis for a finding that the he does not pass an aspect of the character test that is dependent on my opinion.[29] The material contains no reference to any crime committed by the Applicant during his time in immigration detention.[30]

   [27] Pursuant to paragraph 8.1.1(1)(b)(i) of the Direction.

   [28] Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63].

   [29] Pursuant to paragraph 8.1.1(1)(b)(iii) of the Direction.

   [30] Pursuant to paragraph 8.1.1(1)(b)(iv) of the Direction.

8. However, the Applicant has at least two convictions (on 26 April 2016 and 4 August 2016) for ‘contravene direction or requirement’. This is conduct that can be squarely found to constitute crimes committed against government representatives or officials due to the position they hold or in the performance of their duties.[31] As such, an attribution of ‘serious’ can be applied to this conduct.

   [31] Pursuant to paragraph 8.1.1(1)(b)(ii) of the Direction.

   Paragraph 8.1.1(1)(c)

9. In applying this particular sub-paragraph, I am precluded from taking into account sentences imposed on this Applicant for:

   (i)any violent offending he may have committed against women and children;[32]

   (ii)acts of family violence;[33] and

   (iii)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[34]

   [32] Paragraph 8.1.1(1)(a)(ii) of the Direction.

   [33] Paragraph 8.1.1(1)(a)(iii) of the Direction.

   [34] Paragraph 8.1.1(1)(b)(i) of the Direction.

10. As mentioned earlier, the Applicant has respective convictions for (1) a crime of a violent nature against a woman (his mother); and (2) repeated convictions for breaches of previously made violence orders involving female victims. These convictions are precluded from consideration pursuant to this paragraph 8.1.1(1)(c) of the Direction. However, that does not mean the Applicant avoids the application of this particular paragraph to the circumstances of his offending as a means of assessing its nature and seriousness.

11. Even if we do not take into account the sentences he received for the excluded offending, this Applicant has nevertheless:

    ·accumulated a totality of 51 months and 50 days of custodial time or something in the order four and a third years;

    ·accumulated fines in the sum of $3000 for non-traffic offending;

    ·accumulated fines in the sum of $1,450 for traffic offending; and

    ·was ordered to pay compensation to a victim in the sum of $1000.

12. It is well – established that sentences involving custodial time represent the last resort in the sentencing hierarchy. The imposition of a custodial term should be viewed as a reflection of the objective seriousness of the offences committed by this Applicant.[35] I am satisfied that the scope of sentencing modalities imposed on this Applicant for the non-excluded offending strongly militate in favour of a finding that the totality of his conduct must now be found to be ‘very serious’. I so find.

    [35] PNLB and Minister for Immigration and Border Protection [2018] AATA 162.

    Paragraph 8.1.1(1)(d)

13. This paragraph compels responses to two questions. First, has the Applicant’s offending been frequent? As an adult, the Applicant has committed 23 offences dealt with at six sentencing episodes commencing in August 2015 with the last occurring in June 2019. As mentioned, he has a traffic history involving the commission of some seven traffic offences covering the period December 2014 to March 2019. I am satisfied he is a frequent offender in both the criminal and traffic offending realms.

14. Second, does the totality of his history betray a trend of increasing seriousness? To my mind, this question is rendered moribund as a result of the nature of the Applicant’s offending from its commencement. There is no ‘graduated’ pattern of seriousness to be found in his criminal history. It is, at least serious from its commencement which involved respective convictions for possession of dangerous drugs and at least three offences involving an unlawful challenge to the authority of the state.

15. Thereafter, the offending does escalate from serious to very serious and this is evidenced by his dreadful violent conduct towards domestic partners, his mother and his stepfather. I make a similar finding in relation to his traffic history. Of the seven offences in that history, none of them are for relatively innocuous offending such as inadvertent speeding (by the smallest allowable margin) or a failure to wear a seat belt, for example. Instead, it is traffic offending that directly challenges the fundamental requirements of being a driver on our roads: that is, the requirement to hold a valid and current driver licence. The Applicant has at least five convictions for driving whilst unlicensed. He has another conviction for driving whilst under the influence of illicit drugs. This is offending that, just like his criminal offending, has been serious from its outset.

16. I am therefore comfortably satisfied that the totality of the Applicant’s criminal and traffic history has been serious from its outset. The criminal history graduates to very serious offending and causes this paragraph to militate very strongly in favour of a finding that the Applicant’s unlawful conduct in this country has been of a very serious nature, as he himself concedes.

    Paragraph 8.1.1(1)(e)

17. This paragraph looks for any cumulative effects to be gleaned from the Applicant’s offending. First, as is often the case at these types of hearings, there was contrition from the Applicant about his offending and the usual narrative that his offending days were behind him. But the fact remains that there is one undeniable message from his criminal history and that is that he totally failed to experience any deterrent effect from the sentencing regime that had been progressively applied against him. Those early sentences were warnings from the courts to moderate his conduct. None of those sentences resonated with him and his offending increased in seriousness and became more reckless and, ultimately, more dangerous.

18. Second, his criminal history contains another undeniable theme to the effect that he has no respect for the lawful authority governing this country. Of the seven offences in his traffic history, the first four of them, plus the sixth one, involved convictions for unlicensed driving. This surely means he has no respect for the fundamental requirement that a person operating a vehicle on our roads must be lawfully licensed to do so. His criminal offending is no better. It commences with drug offending and refusal to follow the authority of the state represented by the authority of law enforcement officers telling him to do something and refusing to follow an undertaking he had previously provided. His criminal offending then graduates to dreadful and dangerously violent conduct against other people. This demonstrates a preference for imposing a violent solution to a perceived difficulty in complete ignorance of the rights of the other person with whom he is at variance.

19. Third, the Applicant’s unlawful conduct has been committed with such recklessness and abandon that it begs for some kind of clinical explanation identifying the psychopathological factors behind it. The simplistic answer is to say that this is just offending by a drug addict whose moral compass has been set totally askew by illicit substances. That is a trite answer to a much more difficult question. We do not know the clinical extent to which this Applicant has been and may in future be involved with illicit drugs and what predisposes him to do so. This gap in the Applicant’s clinical evidence does comprise a cumulative effect of his offending as an adult.

20. Fourth, the Applicant has been involved with the criminal courts since March 2009 when first offended as a juvenile. He experienced seven sentencing episodes as a juvenile. I appreciate and accept I cannot take this offending into account for present purposes but I mention it by way of background to his criminal offending as an adult which involved six sentencing episodes that dealt with 23 offences from August 2018 to June 2019. His offending as an adult has consumed more than its fair share of the community’s policing, sentencing and custodial resources. It is an undeniable cumulative effect of his repeated offending.

21. I have identified four cumulative effects of the Applicant’s repeated offending which, to my mind, causes this paragraph 8.1.1(1)(e) to strongly militate in favour of a finding that the Applicant’s offending in this country (as adult) has been ‘very serious’.

    Paragraph 8.1.1(1)(f)

22. The Applicant first arrived here in October 2000.He departed Australia in February 2001 for a period for six months and returned in August 2001. He was sentenced for his first offence as an adult in this country in August 2015. He could not have possibly failed to disclose any previous offending on an incoming passenger card because upon his re-entry in Australia in August 2001, he had not committed any offences in this country. I am not aware of the material containing any other instance where the Applicant provided false or misleading information to the Respondent’s Department. This sub-paragraph 8.1.1(1)(f) must be put to one side and rendered neutral for present purposes.

    Paragraph 8.1.1(1)(g)

23. There is nothing in the material to indicate that the Applicant received a warning from the Respondent’s Department such that if he continued to offend, his Visa would be cancelled by operation of law. In these circumstances it cannot be found that the Applicant has reoffended following receipt of any formal written warning. This paragraph 8.1.1(1)(e) must be put to one side and rendered neutral for present purposes.

    Paragraph 8.1.1(1)(h)

24. The Applicant is currently aged 30 years and he spent the first six or so years of his life in the Solomon Islands. The material is silent about whether he has compiled any history of criminal or other offending in the Solomon Islands or any other country that could be classified as an offence or other unlawful conduct in Australia. This paragraph 8.1.1(1)(h) must be put to one side and rendered neutral for present purposes.

    Conclusion about the nature and seriousness of the Applicant’s conduct

25. I have applied each of the relevant paragraphs appearing in paragraph 8.1.1(1) of the Direction. The relevant paragraphs applicable to the instant facts safely lead me to the conclusion (and finding) that the totality of this Applicant’s unlawful conduct in this country can be readily characterised as ‘very serious’.

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

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

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

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

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

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

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

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

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

28. The Applicant concedes that in the event he were to engage in further criminal offending upon a return to the Australian community ‘…there is a real prospect that it could cause emotional, financial and physical harm to the Australian community. The nature of the harm has the potential to be very serious.’[36]

    [36] R2, p 555 [44].

29. This concession is rightly made. Were this Applicant to reoffend in virtually any of the realms in which he has already offended, it would result in significant physical, psychological, measurably material and even catastrophic harm to victims. His appalling violent conduct against past domestic partners, his mother and stepfather is self-evident. Any recommission of that conduct could very significantly damage a victim physically, psychologically and even catastrophically.

30. A further blatant refusal to follow the requirements of lawfully made instruments compelling him to do or refrain from doing something would again consume the community’s policing, sentencing and judicial sentencing resources. Further offending in the realm of illicit drugs would propagate the presence of those substances in our community with resulting harm to addicts and their families and, inevitably, the community’s healthcare resources. Further unlawful interference with other people’s property would result in measurably material harm to the people deprived of their property.

31. I have had regard to the totality of the Applicant’s unlawful conduct. I am satisfied that the nature of harm it would cumulatively represent to either individual victims or the Australian community would range from psychological harm, physical harm, measurably material harm up to, quite conceivably, catastrophic harm in the event of its recommission. I so find.

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

32. I have identified certain factors arising from the evidence that could now be said to speak to the level of the Applicant’s recidivist risk. I will address each in turn prior to making a finding about the Applicant’s current level of recidivist risk.

    Expert opinion

33. The Respondent propounds a position that the Applicant represents a ‘moderate to high’ recidivist risk. This contention derives from the findings of Professor James Freeman which are contained in his report dated 28 October 2020.[37] Upon application of the

    [37] R1, pp 209-220.

    
    

    HCR-20[38] testing methodology, Professor Freeman concludes that the Applicant’s:

    [38] The HCR-20 (Historical, Clinical and Risk Management Violence Assessment Scheme).

    ‘…scores for this scale places him in the “moderate” risk category for

    future acts of violence, due to past history of:

    • Adolescence violence;

    • Other anti-social behaviour as an adolescent;

    • Employment difficulties;

    • History of substance abuse;

    • Mood disorder (e.g., Adjustment Disorder) requiring treatment; and

    • Affective instability.’[39]

    [39] R1, p 215 [10.4].

34. Later in this report, Professor Freeman applied the VRAG[40] testing methodology and concluded that the Applicant’s:

    ‘score on this scale indicates that he can be considered on the border between the “medium” and “high” range for violent re-offending e.g., score of 14 and the medium range is from -7 to 13.’[41]

    [40] Violent Risk Appraisal Guide.

    [41] R1, p 215 [10.5].

1. Professor Freeman also applied the PCL-R[42] and concluded that when the componentry of this methodology was ‘…taken together, [the Applicant] does not present with clear psychopathic tendencies that has been demonstrated to increase the risk of recidivism.’[43]

   [42] Hare Psychopathy Check List.

   [43] R1, 214 [10.3].

2. Professor Freeman reaches a conclusion that ‘Given that a sizeable proportion of his offending history directly relates to substance abuse, if he can achieve ongoing abstinence, then his risk of recidivism may prove to be less than calculated through the HCR-20 and VRAG.’[44] There followed an ‘Addendum Report’ from Professor Freeman on 22 May 2023.[45] The only changes noted by Professor Freeman were expressed in these terms:

   [44] R1, p 216 [11.3].

   [45] R2, pp 625-626.

   ‘3.5 There were no identifiable changes (between the assessment periods) in the

   following:

   - Relationship status;

   - Substance use (e.g., nil);

   - Contact with family members;

   - Mental health (and he continues to be prescribed anti-depressants);

   3.6 The only change is that he has commenced engaging in individual psychological consultations with a substance abuse treatment specialist (e.g.,online) to build a Relapse Prevention Plan.’[46]

   [46] R2, p 625 [3.5]; p 626 [3.6].

   Rehabilitation

3. The Applicant has given evidence about a number of online classes in which he has participated relating to his issues with illicit drugs. Those courses are described as (1) Understanding Addictions; (2) Stress Management; (3) Depression Management; (4) Domestic Violence 101; (5) Anger Management 101; (6) Positive Parenting Technique; and (7) Dealing With Difficult People.[47] In addition, the Applicant has engaged in approximately 40 sessions with the SMART recovery program and has also attended a series of consultations with a Fredi Bashour, Psychologist. The material also contains reference to a general practitioner called Dr Tim Lloyd-Morgan who practices in the Tara region which is where the Applicant’s biological father resides, some 300 kms west of Brisbane. In a letter appearing in the material dated 19 October 2023, Dr Lloyd-Morgan says ‘This letter is to confirm that if [the Applicant] were to reside in Tara or its surrounds I can confirm that mental health, social work and family support would be routinely available and easily accessible for him. I am aware of his current circumstances and his current residence.’[48]

   [47] R2, pp 593-596.

   [48] A1, p 4.

4. In his most recent statement, the Applicant confirms that if released into the Australian community, he has a standing offer from the Logan House residential rehabilitation program to receive treatment. The material contains an ‘Offer of Admission’ from this facility offering  a program which is ‘…delivered over six-week cycles, with the flexibility to be extended up to three months depending on your individual recovery. You can receive support from the moment you contact us, until you are fully settled back into the community. That’s because you can access our services before, during and after your stay.’[49]

   [49] R2, p 887.

5. An element in the evidence which can be fairly viewed as a corollary to the Applicant’s completed and intended rehabilitation is his evidence that he has abstained from illicit drugs on a continuous basis for the almost four years he has spent in immigration detention. As best as I understood the material, there is nothing to suggest he has, for example, failed a urinalysis test in either prison or immigration detention or that he has otherwise been found to be in possession of illicit drugs or paraphernalia associated with consumption of such substances in either prison or detention.

   The Applicant’s family circumstances

6. In addition to his own mental health challenges which have most likely been exacerbated as a result of the almost four years the Applicant has spent in immigration detention, there is the reality that the factual circumstances of this case are compounded by three separate diagnoses of cancer conditions affecting immediate members of his family. His mother, the abovementioned Ms JKJ, is literally at the end of her days and terminally ill with metastatic lung cancer that has spread to her brain and bones. His sister, the abovementioned Ms Roselyn Chottu, has ovarian cancer which requires immediate surgical intervention.

7. Perhaps most significantly of all, the Applicant’s biological daughter, the abovementioned Child A, who was born in February 2019 is also very unwell. Child A has been diagnosed with a condition described as tuberous sclerosis which is an uncommon genetic disorder that has caused a tumour to develop in her brain. In turn, this has caused Child A to experience seizures which have been the subject of an emergency care plan that has been in place from April 2020. In a report before the Tribunal from the Beenleigh Child Safety Service Centre dated 30 July 2020, we are told:

   ‘Child A is diagnosed with tuberous sclerosis and is under the care of Queensland Children’s Hospital neurology department for bi monthly reviews. Given the nature of her condition which is likely to impact her development, there would be no viable option of facilitating contact away from the Brisbane region at this time with [the Applicant]. Child A is one year and 5 months of age and thus cannot communicate via telephone calls at this time.’[50]

   [50] R1, p 223.

8. It is not a stretch of the evidence to suggest (and find) that these additional elements involving members of his immediate family do lend credence to the Applicant’s evidence about an intention to return to the community and re-connect with his close family members. It would indeed be quite cynical to suggest that the Applicant is inappropriately utilising the dire medical conditions confronting his mother, sister and daughter for the sole purpose of improving the prospects of a successful outcome in the instant matter. I therefore accept his evidence about his intention to reunite with his family with particular and immediate reference to his mother.

   The evidence of the Applicant’s sister, Ms Roselyn Chottu

9. Ms Roselyn Chottu provided both oral and written evidence to the instant Hearing. She told the Tribunal about the extent of the Applicant’s relationship with her own children and his other nieces and nephews. She spoke of his good relationship with her three older children who regard the Applicant as their loving uncle. She shares a similar background to the Applicant having migrated from the Solomon Islands with him when they were both quite young. She regards the Applicant like her son and she spoke of the close-knit nature of their family in Australia.

10. Ms Roselyn Chottu resides in the Tara region of South-East Queensland (some 300 kms from Brisbane). In addition to frequently travelling to Brisbane to look after their

    
    

    terminally - ill mother, she also told the Tribunal about her own diagnosis of ovarian cancer and that she is on a waiting list for surgery to deal with that condition. Despite these dual challenges, Ms Roselyn Chottu maintains a parental role in the context of her own family unit and acts as a spouse to her husband while at the same time maintaining a vital interest in the welfare of the Applicant.

11. Despite living some 300 kms and four hours’ travel time from Brisbane and having family responsibilities of her own, she nevertheless travels to Brisbane on multiple occasions every month to assist her other sibling (a sister) with the care of their terminally ill mother. Ms Roselyn Chottu and her husband are in a position to offer the Applicant employment in a proposed excavation business they are in a process of establishing. Ms Roselyn Chottu is, at least for the short to medium term, physically hampered from any active involvement in the establishment and conduct of this business due to an injury she experienced in her former employment position. Were the Applicant returned to the community, she said his presence and assistance would be of significant help to her and her husband in the establishment of this business.

12. This evidence of the sister dovetails with the Applicant’s evidence at the Hearing where he confirmed that if returned to the community, he would – at least initially – go and live with his father on the father’s property in the Tara area. The Applicant’s brother and his two sons also live with the father on this rural property of about 17 acres. The Applicant spoke about also being able to find employment in the Tara area working at the local food retail outlets such as Woolworths and Aldi but that he would otherwise be open to engaging in labouring types of roles. In his own words, he said ‘…honestly, I ‘d do anything.’[51]

    [51] Transcript, p 24, line 10.

13. The evidence of the Ms Roselyn Chottu and the Applicant that he would go and live on his father’s property in the Tara area is also corroborated by the Applicant’s father, Mr James Chottu Sr. In his latest statement Mr Chottu Sr says:

    ‘In circumstances where [the Applicant] is returned to the Australian community, he will have safe and stable accommodation at my place of residence. My property is over 10 hectares in size. There is sufficient room to provide accommodation to [the Applicant]

    …..

    I can provide my son with strong emotional and practical assistance in the Australian community.’[52]

    [52] R2, pp 579-580 [18]-[19].

    The situation of Child A

14. In usual circumstances, I would mention the circumstances of Child A in my discussion involving her best interests pursuant to Primary Consideration 4. But the unique, and indeed troubling, circumstances of this case compel me to mention her circumstances here. I have referred to the quite serious medical condition that has confronted Child A virtually from her birth. That condition remains a live issue. Compounding this issue is the regrettable reality that Child A’s biological mother has effectively disqualified herself from any parental role in the child’s life. Child A was taken from the biological mother at birth and is now in the care of foster carers under the auspices of the DCS.

15. While I cast absolutely no aspersions towards either the foster carers or the DCS – who I am certain have discharged their respective functions in an exemplary and credible way in the best interests of Child A – this is not a situation that would be entirely palatable to the Applicant as Child A’s biological father. His evidence about seeking a re-involvement in her life must be accepted. This intention should also be found to be a protective factor against his level of recidivist risk. He told the Hearing of an intention to work his way through the legal process for the purpose of re-establishing himself as the custodial parent of Child A and he, of course, has every right to pursue that intention.

16. The pursuit of that intention brings with it a requirement to keep himself on the straight and narrow and to re-establish his credentials as a worthy custodial parent for Child A. I am satisfied the Applicant has come to the realisation that he has absolutely no chance of doing so if he continues to find himself in either prison, immigration detention or if he is otherwise removed from this country.

    Other elements around recidivist risk

17. During closing submissions, the Applicant’s representative made repeated references to the sheer amount of time the Applicant has spent in immigration detention and how this element has very brightly shone a light on a future reality that were to resume his offending pattern, this entire Visa cancellation and threatened removal process will be re-visited upon him. The Respondent’s representative contended that the Applicant’s time in immigration detention is a by-product of his own intention to stay in Australia and to challenge the delegate’s decision to not revoke the mandatory cancellation decision.

18. As best as I understood, the contention put on behalf of the Respondent is that while the Applicant has the right to remain here during this challenge, he could have, at any earlier point, left Australia and conducted the challenge from the Solomon Islands. I do not think that contention carries any weight because if he had earlier left Australia and even if an earlier Tribunal had set aside the refusal to revoke decision, his Visa would have expired and he would not have a capacity to automatically return to Australia. This is because he would have to re-apply for a visa and such an application could be refused by the Respondent’s Department pursuant to s 501(1) of the Act such as to place the Applicant into virtually the same position of challenge as he currently finds himself.

19. The fact that the Applicant has not unilaterally left Australia at an earlier stage should not be held against him. He should not be reasonably expected to leave this country during these current proceedings, contest the Decision Under Review from the Solomon Islands and, if successful in such challenge, to then be compelled to re-apply for a visa while offshore with a quite realistic possibility that it would be refused pursuant to s 501(1) of the Act.

    Findings about risk

20. The material before the Tribunal is both bulky and repetitious due to the fact that this is the third ventilation of the Applicant’s challenge of the Decision Under Review in this Tribunal. That is not the fault of anyone but it does bring into play certain elements which, in turn, colour the lens through which the evidence can now be viewed and analysed. I will make the following findings about risk:

    ·expert opinion: true it may be that Professor Freeman made findings about the Applicant’s level of recidivist risk. But these findings date from October 2020. True it may also be that Professor Freeman provided an ‘Addendum Report’ in May 2023. But that report specifies ‘there are no identifiable changes in…[the Applicant]’s…substance use (e.g., nil); and contact with family members; mental health (and he continues to be prescribed anti-depressants)’. In this Addendum Report Professor Freeman noted ‘The only change is that he has commenced engaging in individual psychological consultations with a substance abuse treatment specialist (e.g., online) to build a Relapse Prevention Plan.’ This relatively recent observation in Professor Freeman’s Addendum Report dovetails with the Applicant’s completion of a number of rehabilitative courses. It is also on all fours with the evidence before the Tribunal form Dr Lloyd-Morgan who, in his letter of 19 October 2023, confirms that if the Applicant returns to live in Tara, he will have access to mental health and social work support together with the support of his family which ‘would be routinely available and easily accessible for him.’ Professor Freeman’s views in the Addendum Report are also on all fours with the Applicant’s evidence about being in receipt of an ‘Offer of Admission’ from the Logan House residential rehabilitation program to receive treatment upon a return to the community;

    ·somewhere to reside and somewhere to access available supports: it is the evidence of the Applicant, corroborated by his sister, Ms Roselyn Chottu and his biological father that he will return to live at his father’s property at Tara, 300 kms west of Brisbane. The Applicant’s brother and his children reside with the Applicant’s father at his property. In addition, the Applicant’s sister, Ms Roselyn Chottu, and her family reside a short distance just outside of Tara. In addition to having somewhere safe and reliable to reside, it follows that the Applicant will have the support of his family together with availability to consult with Dr Lloyd-Morgan who practises in the Tara area.

    ·employment: the Applicant’s evidence, corroborated by his sister, Ms Roselyn Chottu is that he will be available to find employment in the Tara area whether it be working in local supermarket/retail food outlets, or in factory/labouring type work or, as particularised by Ms Roselyn Chottu, in the forthcoming excavation business that she and her husband are committed to establishing. It should be remembered that Ms Roselyn Chottu is hampered from more fulsomely devoting herself to establishment and commencement of this business because of (1) a requirement that she frequently be in Brisbane to assist her sister with the care of their terminally ill mother; and (2) Ms Roselyn Chottu is physically hampered as a result of sustaining an ankle injury at her pervious place of employment. This is how and where the Applicant has a genuine opportunity to involve himself and assist his sister and brother-in-law with the establishment, commencement and operation of their excavation business.

    ·a unique confluence of factors: This is an Applicant who has spent nearly four years in immigration detention. In addition to dealing with his own mental health symptoms and burdens, a dreadful confluence of factors affecting members of his immediate family has - due to no fault of his own – been superimposed over his own circumstances. First, his mother is at the end of her days and terminally ill with a metastasised cancer condition. Second, his sister, Ms Roselyn Chottu who herself has parental, spousal and business responsibilities, has been diagnosed with ovarian cancer and is presently awaiting surgery to treat that condition. Third, his almost five-year-old biological child, Child A has a diagnosis of a genetic condition predisposing her to having tumours in her body. Specifically, Child A has a tumour on her brain which has caused her to have seizures. This condition has been under a constantly monitored treatment plan that has been in place since April 2020. It beggars belief to suggest that this confluence of additional factors has not impacted the Applicant such as to augment the impact of almost four years in immigration detention together with the uncertain outcome attending to proceedings such as this one;

    ·Child A: Child A is cared for by the state. Child A was removed from her biological mother at birth. Child A has a significant medical condition which may or may not existentially threaten her life but there is no escaping the reality that she is quite unwell and may very well remain unwell for quite some time. The medical evidence is that her current condition will impede her development. The Applicant’s unlawful conduct in this country has compelled him to view these developments from afar. It would beggar belief if one were not to now accept his evidence of an intention to return as a physical presence in A’s life albeit as a visiting father but with prospects of that relationship evolving into a custodial arrangement;

    ·Demir[53]: In Demir, His Honour Judge Kennett was initially concerned with the ‘double counting’ of a particular component of the Direction by a merits-based decision-maker. His Honour also spoke of a decisional outcome where ‘…the ultimate decision as to which relevant factors are more important….is likely to be instinctive, and correspondingly unlikely to be explained in granular detail’.[54] Here, the ‘granular detail’ may, perhaps, not entirely favour the Applicant. The clinical evidence is perhaps old, the evidence around rehabilitation perhaps incomplete, and evidence around employment may be found to be tentative. But the quality of that ‘granular detail’ should not, in and of itself, unfavourably determine the level of the Applicant’s recidivist risk. This is because his almost four years in immigration detention, the confluence of dreadful factors affecting three members of his immediate family and the specific ongoing requirements of Child A can be brought to bear in terms of the ‘ultimate synthesis’ to be drawn from the totality of the evidence about factors speaking to the Applicant’s recidivist risk.

    [53] Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870.

    [54] Demir [22].

    Assessment of recidivist risk

21. In October 2020, Professor Freeman’s testing methodologies produced recidivist risk outcomes of ‘moderate’ to ‘… on the border between medium and high…’. He said if the Applicant can achieve ongoing abstinence then the Applicant’s risk of recidivism may prove to be less than these two calculated ranges. In May 2023, Professor Freeman said there were no identifiable changes to the Applicant’s markers for recidivist risk and that ‘the only change is that he has commenced engaging in individual psychological consultations with a substance abuse treatment specialist (e.g., online) to build a Relapse Prevention Plan.’

1. Having regard to the relatively unique but nevertheless supportive statements from three victims of the Applicant’s past offending, I will, pursuant to the authority of PGDX allocate a strong level of weight to this Other Consideration (c) in favour of setting aside the Decision Under Review.  

   Other Consideration (d): Impact on Australian business interests

2. The written position of the parties appears in their respective statements of facts, issues and contentions (‘SFIC’). The Respondent says there is no known impact on Australian business interests in the event the Applicant does not succeed in the instant application.[148] The Respondent references the Applicant’s SFIC wherein it is conceded that this Other Consideration (d) is not relevant in these proceedings.[149]

   [148] R2, p 616 [79].

   [149] R2, p 572 [116].

3. That would normally be the end of the discussion of this Other Consideration (d) for present purposes. However, it is necessary to address the Applicant’s change of position on this particular Other Consideration (d) which transpired during closing submissions. This is what was put on behalf of the Applicant:

   ‘In terms of impact on Australian business interests, on the jurisprudence at the moment, this also is in the applicant’s favour. And in the sense that the applicant’s sister tragically has had the accident with the ankle and has been unable to work herself, but has set up the business with her husband in relation to the excavation, trucking transport business, has said that she could really help with the applicant helping with the business at the present time, particularly as she’s got the competing practical obligations of taking care of the mother with the cancer in Brisbane. And of course also reminding us obviously that she’s got ovarian cancer (indistinct) surgery for that. So we say that this other consideration weighs in the applicant’s favour.’[150]

   [150] Transcript, p 50, lines 46-47; p 51, lines 1-8.

4. This submission is not, with respect, on all fours with the evidence of the Applicant’s sister. The subject business has not been ‘set up’. It is little more that a well-intended idea propagated by the Applicant’s sister and her husband. While there is reference to the purchase of a truck and excavator,[151] it is followed by evidence where the business is in its very early stages or still, as it were, at the starting line. The evidence from Ms Roselyn Chottu was put in these terms:

   ‘….And my partner, he drives trucks and he used to work driving excavators and work, you know, general labouring. He works at the mines. He works at the gas places. So we had a bit of an opportunity where we can set ourselves up to set our own business up. So we did. And it’s sort of not running properly just yet because just with everything that’s going on at the moment it’s a bit full on. And, you know, we’re still sort of trying to set that up. So it’s in the progress of hopefully end of the month or January to set ourselves up properly with the business we’re trying to do.’[152]

   [151] See generally, Transcript, p 32, lines 14-18.

   [152] Transcript, p 32, lines 15-25.

5. It would, to my mind, be unsafe to allocate weight to this Other Consideration(d) in circumstances where the business is yet to be established or yet to have any operational history and, as such, would surely not be regarded as an ‘Australian business interest’. True it may be that the sister has a work-related injury from a previous employment role and may be precluded from any immediate to medium term involvement in the proposed business. But this does not safely open the door towards any finding about the Applicant playing any role in a business in substitution for his sister in circumstances where that business is yet to be established or has no operational history.

6. I will therefore put this Other Consideration (d) to one side and allocate neutral weight to it.

   Findings: Other Considerations

7. The allocation of weight to the Other Considerations in the present matter can be summarised as follows:

   (a)legal consequences of the decision: is of neutral weight;

   (b)extent of impediments if removed: is of moderate weight in favour of revocation;

   (c)impact on victims: is of strong weight in favour of revocation;

   (d)impact on Australian business interests: is of neutral weight.

   CONCLUSION

8. Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant’s Visa: either the Applicant must be found to pass the character test; and if not, I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted (and found) previously in these Reasons, the Applicant does not pass the character test.

9. In considering whether there is another reason to exercise the power afforded by s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s Visa, I have had regard to the considerations referred to in the Direction. I find as follows:

   ·Primary Consideration 1: carries a heavy, but not determinative level of weight in favour of affirming the Decision Under Review;

   ·Primary Consideration 2: carries a heavy, but not determinative level of weight in favour of affirming the Decision Under Review;

   ·Primary Consideration 3: is of a very heavy weight in favour of setting aside the Decision Under Review;

   ·Primary Consideration 4: is of very heavy weight in favour of setting aside the Decision Under Review;

   ·Primary Consideration 5: carries a heavy weight in favour of affirming the Decision Under Review;

10. I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined weights I have allocated to Primary Considerations 3 and 4 plus Other Considerations (b) and (c) are sufficient to outweigh the combined weights I have allocated to Primary Considerations 1, 2 and 5.

11. A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding that there is another reason to revoke the mandatory cancellation of the Applicant’s Visa.

12. The Tribunal is appreciative of the support and assistance afforded to it by the parties’ representatives. In particular, the Tribunal respectfully notes and commends the pro-bono basis upon which Counsel and instructing solicitors conducted the matter on behalf of the Applicant.

    DECISION

13. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), this Tribunal sets aside the decision made on 19 August 2020 by a delegate of the Respondent and substitutes it with a decision to revoke the mandatory cancellation of the Applicant’s Class BC Subclass 100 Spouse visa.

I certify that the preceding 201 (two hundred and one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

.................[SGD]................

Associate

Dated: 22 February 2024

Date of hearing:	11 December 2023
Counsel for the Applicant:	Dr Jason Donnelly (Latham Chambers)
Solicitor for the Applicant:	Mr Ziya Zarifi (Principal)
Zarifi Lawyers
Solicitors for the Respondent:	Mr Tigiilagi Etueati (Senior Lawyer)
Australian Government Solicitor

ANNEXURE A

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
RESPONDENT’S SUBMISSIONS
R1	First part of the large remittal bundle (pages 1 to 426)	Various	6 October 2023
R2	Second part of the large remittal bundle (paged 427 to 1150)	Various	6 October 2023
APPLICANT’S SUBMISSIONS
A1	Applicant’s small evidence bundle (4 pages)	Various	6 December 2023