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

CRNL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 458 (20 March 2024)
Division:GENERAL DIVISION
File Number: 2021/2009
Re:CRNL
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:20 March 2024
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), this Tribunal affirms the decision made on 26 March 2021 by a delegate of the Respondent to not revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
........................[SGD].............................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – remittal- 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 the criminal offending predominantly involved illicit substance abuse and repeated family violence offending – where Applicant’s rehabilitation is unknown - Tribunal finding Applicant’s recidivist risk as unchanged - factors against revocation outweigh factors in favour of revocation- Tribunal finding there is no another reason to revoke the mandatory cancellation decision- decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Criminal Code Act Compilation Act 1913 (WA)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311
Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
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
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
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
20 March 2024
INTRODUCTION

CRNL (‘the Applicant’) is a 41-year-old man, born in New Zealand on 26 July 1982. He first arrived in Australia on 27 June 2005 as a 22-year old.[1] He then departed Australia in October 2006 and remained offshore for a period of about three months, arriving back in Australia on 1 February 2007.[2] Since his return to Australia on 1 February 2007, he has remained onshore and therefore it can be safely concluded that he has been a permanent resident of Australia since 2007.
[1] R1, p 53.
[2] R1, p 53.
On 16 July 2013, the Applicant was convicted in a District Court of Western Australia of ‘deprivation of liberty’ and sentenced to 15 months’ imprisonment. On 3 December 2020 a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) mandatorily cancelled the Applicant’s Class TY Subclass 444 – Special Category (Temporary) 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 22 December 2020.[4]
[3] R1, pp 59-65.
[4] R1, p 14 [3].
On 26 March 2021, 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 26 March 2021 will be hereinafter referred to as the ‘Decision Under Review’. The Applicant was notified of the Decision Under Review on 26 March 2021.[6] On 1 April 2021, the Applicant lodged the instant application in this Tribunal seeking review of the delegate’s non-revocation decision made on 26 March 2021.[7] I am satisfied this Tribunal has jurisdiction to review the non-revocation decision pursuant to s 500(1)(ba) of the Act.
[5] R1, pp 9-28.
[6] R1, pp 9-11.
[7] R1, pp 3-8.
PROCEDURAL HISTORY
This application had its initial ventilation before this Tribunal on 31 May and 1 June 2021. By its decision of 21 June 2021 this Tribunal (differently constituted) affirmed the Decision Under Review. There followed an application for judicial review of that decision before a single judge of the Federal Court of Australia. On 23 March 2023, Feutrill J dismissed that application for judicial review. There followed an appeal to the Full Court which, on

22 August 2023, set aside the Tribunal’s decision of 21 June 2021 and remitted the matter back to this Tribunal for re-determination according to law. This is therefore the second ventilation of this application before this Tribunal.
The instant hearing proceeded before me by video on 8 February 2024 (‘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[8] which is attached to these Reasons marked ‘Annexure A’. The only witness providing oral evidence to the instant Hearing was the Applicant.
[8] See generally, Transcript, p 2, lines 15-26.
LEGISLATIVE FRAMEWORK
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.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act.
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?
It is clear that the Applicant does not pass the character test. Due to his abovementioned conviction and sentencing to 15 months’ imprisonment on 16 July 2013, it can be safely found he has a ‘substantial criminal record’.[9] 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.
[9] Pursuant to ss 501(6)(a) and 501(7)(c) of the Act.
Is there another reason to revoke the mandatory cancellation of the Applicant’s Visa?
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.[10]
[10] 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.
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.
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.
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
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.
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.
I will consider each in turn.
The nature and seriousness of the Applicant’s conduct to date
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.
An overview of the Applicant’s offending
The Applicant’s Australian criminal history appears in the material.[11] It involves the commission of some 52 offences dealt with at a multiplicity of 26 sentencing episodes across a sentencing period of 11 years. In short order, it is apparent that the Applicant’s unlawful conduct has involved:
·physical assaults on a domestic partner on seven occasions;
·those seven assaults were perpetrated against four separate partners;
·at least two of those assaults involved the Applicant either attempting to or actually choking his victim;
·the making of threats to kill or seriously injure domestic partners on four occasions;
·those four ‘threat episodes’ occurred in relation to three different domestic partners.
[11] R1, pp 29-32.
The level of seriousness of the Applicant’s conduct should not be isolated to his family violence conduct. There is other significantly serious offending conduct to be taken from his history. For example, he has been convicted of holding one of his past domestic partners, and the female friend of that partner, in a hotel room against their will. He also has convictions for three instances where he damaged a past domestic partner’s property. He also has two convictions for assaults perpetrated in the Adelaide area. Interspersed in this history of unlawful physical interference with both domestic partner and other victims the Applicant has convictions for property offences, drug offences, repeated failures to meet the terms of previously-made orders compelling him to do or refrain from doing something as well as offending involving the operation of a motor vehicle on Australian carriageways.
Between the period August 2000 until March 2004, the Applicant also compiled a criminal history in New Zealand.[12] This history involved the commission of some eight (8) offences dealt with seven (7) separate sentencing episodes commencing in October 2000 with the final sentencing event in February 2005. The offending resulted in convictions for (1) careless operation of a motor vehicle (x2); (2) drink driving; (3) disqualified driving (x 2);

(4) wilful damage; and (5) a failure to answer District Court bail.
[12] R1, p 36.
Paragraph 8.1.1(1)(a)
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;[13] (2) violent offending against women or children;[14] and

(3) family violence conduct regardless of whether or not a sentence was imposed.[15]
[13] Paragraph 8.1.1(1)(a)(i) of the Direction.
[14] Paragraph 8.1.1(1)(a)(ii) of the Direction.
[15] Paragraph 8.1.1(1)(a)(iii) of the Direction.
There is surely no cavilling with the finding that the Applicant’s conduct has involved violent offending against women as well as family violence conduct perpetrated upon domestic partners. I have little difficulty in concluding that this paragraph 8.1.1(1)(a), when applied to the Applicant’s criminal history in this country, most certainly militates in favour of a finding that his unlawful conduct must be found to be ‘very serious’.
Paragraph 8.1.1(1)(b)
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’. As best as I understood the material, 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.[16] Given the formulation of the character test referable to the instant decision, which test the Applicant fails as a matter of law,[17] 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.[18] The material contains no reference to any crime committed by the Applicant during his time in immigration detention.[19]
[16] Pursuant to paragraph 8.1.1(1)(b)(i) of the Direction.
[17] Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63].
[18] Pursuant to paragraph 8.1.1(1)(b)(iii) of the Direction.
[19] Pursuant to paragraph 8.1.1(1)(b)(iv) of the Direction.
However, the Applicant has at least one conviction (in July 2016) for ‘Give False Personal Details To Police’ in breach of section 16(8) of the Criminal Investigation (Identifying People) Act 2002 (WA). That legislation relevantly provides as follows:
‘16. Officer may ask for name, address, etc.
(1) In this section — “personal details”, in relation to a person, means —
(a) the person’s full name;
(b) the person’s date of birth;
(c) the address of where the person is living;
(d) the address of where the person usually lives.
(2) If an officer reasonably suspects that a person whose personal details are unknown to the officer —
(a) has committed or is committing or is about to commit an offence; or
(b) may be able to assist in the investigation of an offence or a suspected offence, the officer may request the person to give the officer any or all of the person’s personal details.
…..
(8) A person who, in response to a request made under subsection (2), gives any false personal details commits an offence. Penalty: Imprisonment for 12 months…’

This is plainly offending within the auspices of sub-paragraph 8.1.1(1)(b)(ii) of the Direction because it was committed against government representatives or officials (i.e. the police) in the performance of their duties. As such, this conduct does militate in favour of a finding that, at the very least, the Applicant’s offending has been serious and more likely very serious.
Paragraph 8.1.1(1)(c)
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;[20]
(ii)acts of family violence;[21] 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.[22]
[20] Paragraph 8.1.1(1)(a)(ii) of the Direction.
[21] Paragraph 8.1.1(1)(a)(iii) of the Direction.
[22] Paragraph 8.1.1(1)(b)(i) of the Direction.
I am therefore precluded from taking into account all of the sentences the Applicant has received for his violent offending against women both in terms of violent conduct simpliciter but also violent conduct constituting family violence. In it’s Statement of Facts, Issues and Contentions (‘SFIC’), the Respondent contends that ‘….regard must be had to the fact that the applicant has been sentenced to multiple terms of imprisonment….’ [23] With respect, I think that contention is misconceived. It is so because when one looks at the Applicant’s criminal history, the custodial terms he has received have been for offending that I am precluded from taking into account for the purposes of this sub-paragraph 8.1.1(1)(c).
[23] R2, p 11 [41].
That said, the Applicant has nevertheless compiled an impressive list of sentences from non-precluded offending. The predominance of those sentences have been in the form of fines. Indeed, even a cursory calculation of the fines he has received (on 33 occasions) for non-precluded offending gives a cumulative figure of $ 16,150. While there is no question that imposition of a fine does constitute a ‘sentence’, a fine is not at the same level of severity of punishment as is represented by imposition of a custodial term. So in terms of the sentences I can take into account for present purposes, the highest it can be put is that those sentences (i.e. fines – and 33 of them) only moderately militate in favour of a finding that the totality of the Applicant’s unlawful conduct in this country has been ‘very serious’.
Paragraph 8.1.1(1)(d)
Two questions are compelled by this sub-paragraph. First, has the Applicant’s offending been frequent? Speaking frankly, the numbers surely speak for themselves. The Applicant has convictions for 52 offences dealt with at 26 sentencing episodes across a sentencing period of 11 years. He also has a preceding offending history in New Zealand that ran for about four years and involved convictions for eight offences. This is plainly frequent offending.
Second, is there a detectable trend of increasing seriousness across the history of offending? A holistic reading of the history of offending shows that it has been of a significantly serious nature from its commencement. It’s length – in terms of sentencing episodes – runs from August 2009 to November 2020. As early as February 2013, the Applicant was convicted of ‘Threats to injure, endanger or harm any person’.[24] In July 2013, he was sentenced to a head custodial term of 15 months upon a conviction for ‘Deprivation of Liberty’. In March and May 2015, charges of ‘unlawful assault’ and ‘reckless conduct endanger life’ were proffered against the Applicant. In September 2016, he was convicted of ‘Aggravated Assault Occasioning Bodily Harm’. In April 2020, he was convicted of ‘Common Assault in Circumstances of Aggravation or Racial aggravation’.[25]
[24] Pursuant to s 338(B)(b) of Criminal Code Act Compilation Act 1913 (WA).
[25] Pursuant to s 313(1)(a) of Criminal Code Act Compilation Act 1913 (WA).
I am thus hard-pressed to identify or define any ‘trend’ of increasing seriousness. Serious offending is committed in the first third of the history and again at about its mid-point and again at its endpoint. The absence of a trend of increasing seriousness does not assist the Applicant. Serious offending has been committed throughout the history. When viewed cumulatively, these abovementioned ‘milestones’ of serious offences against the person serve to define the totality of the Applicant’s conduct as ‘very serious’.
When my respective findings about (1) the frequency of the Applicant’s offending and (2) any identifiable trend of increasing seriousness are conjoined, I am led to a finding that this sub-paragraph 8.1.1(1)(d) strongly militates in favour of a finding that this Applicant’s unlawful conduct in this country has been of a ‘very serious’ nature.
Paragraph 8.1.1(1)(e)
The extensive nature of the Applicant’s criminal history gives rise to several cumulative effects. First, even though he has received sentences spanning virtually the full ambit of sentencing options, it is difficult to apprehend he has experienced any form of deterrent effect from them. About the first third of his convictions were punished by non-custodial sentences predominantly in the form of fines. He then received further non-custodial sentences for subsequent offending in the form of a community service order, a good behaviour bond, an intensive corrections order and further fines. He took nothing from these non-custodial terms. His final seven convictions attracted a cumulative period of head custodial time of 49 months.
Second, an absence of respect for lawful authority is also a marked feature and cumulative effect of the Applicant’s conduct. He has demonstrated this in a number of ways. He has not been respectful of the personal rights of others be it in the form of holding them against their will or imposing himself upon them in physical terms. He has not been respectful of the terms or requirements of a lawfully made document or regulation compelling him to do, or refrain from doing, something. His history contains a multiplicity of breaches of a Police Order and numerous of breaches of orders relating to domestic violence. In a similar vein, he has demonstrated a keen disregard for the rules and regulations governing the operation of a motor vehicle on Australian carriageways.
Third, the sheer volume of the Applicant’s offending pattern safely leads one to a conclusion that his offending has consumed more than its fair share of the community’s policing, judicial sentencing and custodial resources. It is trite to suggest the Applicant’s offences appearing in his criminal history involved the Police merely recording his conduct on a page that eventually became part of his criminal history. Take for example the Applicant’s six convictions in November 2020 for breaching a family violence order. The incident giving rise to these breaches would have required attendance by a Police at the scene; the taking of statements and particulars from an affected person(s); the preparation and presentation of appropriate documents to a Court to secure convictions; the listing of these alleged breaches before a Magistrate; the Magistrate’s consideration of the circumstances of the alleged breaches as a prelude to whether or not a finding of guilt can be made and convictions recorded.
Fourth, a further cumulative effect of the Applicant’s unlawful conduct is that this Tribunal does not have the benefit of any clinical explanation behind the factors predisposing the Applicant to offend. In his oral evidence he spoke of ceasing the medication he was previously on for the management of his mental health. This cessation occurred in March 2023.[26] He is presently not receiving any treatment for any pre-dispositive symptoms behind his offending. He spoke of coming out of immigration detention and seeking out a clinician who might prescribe medication without the side-effects resulting from the medication he had been taking while in detention.[27] I will have more to say about these symptoms and the state of their treatment and management later in these Reasons when discussing recidivist risk. The fact that (1) the Applicant has offended so seriously and (2) we have no clinical explanation or understanding of the psychological basis behind it, is a cumulative effect of his offending.
[26] See generally, Transcript, p 4, lines 27-37.
[27] See generally, Transcript, p 4, lines 39-45.
I am satisfied that the abovementioned four cumulative effects of the Applicant’s offending cumulatively cause this sub-paragraph 8.1.1(1)(e) to strongly militate in favour of a finding that his offending in Australia has been ‘very serious’.
Paragraph 8.1.1(1)(f)
During cross-examination, the Applicant was taken to a couple of incoming passenger cards he completed on 1 February 2007 and 27 June 2005, respectively. Both of these cards posed the same question: ‘Do you have any criminal convictions?’ The Applicant answered both questions with ‘No’. With reference to the 2007 card, the Applicant said: ‘I didn’t realise that I had any criminal convictions. I just thought I had traffic offences and I didn’t know that was a criminal conviction, to be honest. And at the time, I believed that I may have got my mum to do my boarding pass and all I did was sign it. So that’s quite possibly what happened.’[28]
[28] Transcript, p 18, lines 20-24.
With reference to the earlier of the two cards (dating from 2005), he explained the ‘No’ answer in these terms: ‘I wouldn’t’ know – I wouldn’t have known back then. I didn’t know. Like I said, I thought I only had traffic offences.’[29] These explanations about the respective incorrect ‘No’ answers do not carry much credibility. When he completed the 2005 card, he was 22-23 years of age. He was two years older when he completed the 2007 card. It is difficult to accept that a person in their early to mid-20’s would (1) not have been able to recall the difference between traffic offending and his actual offending in New Zealand which involved two convictions for breaching bail and one for wilful damage; and (2) be reliant on their mother for completion of an incoming passenger card.
[29] Transcript, p 18, lines 32-34.
The reality of the two incorrectly completed passenger cards must be found to constitute provision of false or misleading information to the Respondent’s Department. Coupling this reality with the Applicant’s unconvincing explanations for the incorrect response in the two cards causes this sub-paragraph 8.1.1(1)(f) to strongly militate in favour of a finding that the Applicant’s offending in Australia has been ‘very serious’.
Paragraph 8.1.1(1)(g)
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)(g) must be put to one side and rendered neutral for present purposes.
Paragraph 8.1.1(1)(h)
As mentioned earlier, prior to his arrival in Australia the Applicant compiled an offending history in New Zealand. It involved convictions for (1) careless operation of vehicle (x2);
(2) drink driving (x1); (3) disqualified driving (x2); (4) wilful damage (x1); and (5) breach of bail (x2). This offending was dealt with at seven separate sentencing episodes across an offending period running from August 2000 until March 2004. Each of these offences he committed in New Zealand are classified as offences in Australia. The Applicant’s convictions in New Zealand cause this sub-paragraph 8.1.1(1)(h) to strongly militate in favour of a finding that the Applicant’s offending in Australia has been ‘very serious’.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have applied each of the relevant paragraphs appearing in paragraph 8.1.1(1) of the Direction to the evidence. 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
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.
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
The nature of the harm likely to be suffered by any future victims of the Applicant’s offending is best informed by a review of his conduct referable to past victims. He has convictions for physically assaulting, in quite violent terms, multiple partners on multiple occasions. It is not beyond the realm of possibility that a future victim of his domestically violent conduct could suffer catastrophic harm.
There are other harms the community would be compelled to bear were this Applicant to reoffend. Further breaches of lawfully made Orders such as bail, orders relating to family violence and ‘Police Orders’ would again consume the community’s policing, sentencing and custodial resources. Criminally damaging and/or destroying other people’s property would again result in quantifiable material loss for those victims. The commission of further offences against the person would again result in those victims experiencing adverse physical and psychological outcomes.
I am satisfied that any re-commission of the Applicant’s unlawful conduct-particularly that perpetrated against previous domestic partners-would be unacceptable to the Australian community. I have had regard to the nature and extent of the Applicant’s unlawful conduct in this country. Were he to reoffend, it would have the potential for the occasioning of physical, psychological, measurably material and quite realistically, catastrophic harm to its victims. To this finding, I will add a finding–made pursuant to paragraph 8.1.2(1) of the Direction-that re-commission of any part of it, and the harm that would result from such
re-commission, is so serious such as to be unacceptable to the Australian community.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
During closing oral submissions, the Respondent’s representative predicated any assessment of the Applicant’s recidivist risk around one central question: ‘The question is, really, “Is the risk so low that, a prospect of a future partner of the [the Applicant] being seriously injured or dying, is the risk so low that it is acceptable?”’[30] For reasons apparent from the following evidentiary elements, that question must be answered in the negative.
[30] Transcript, p 28, lines 42-44.
The Applicant’s evidence: what factors does he identify as being behind his offending?
In his written submission, the Applicant attributes his offending to a confluence of (1) an abusive father who was an alcoholic and drug-user; (2) being sexually abused while growing up; (3) resultant feelings of resentment to those around him; (4) feeling betrayed by both his family and governmental authorities compelled to intervene to curb his unlawful conduct; and (5) finding a refuge and a means of solace in the abuse of illicit substances. In the Applicant’s own words:
‘I grew up tough and I do not wish my kids to feel that way. I had an alcoholic father who was on drugs as well. He physically abused me and my mother. To exacerbate my woes, I was sexually abused growing up. This made me resent the society that I was living. I felt betrayed having no protection from my family and the authorities. This made me resent the system and I became mildly anti-social.
I found refuge in substances and at the time of my indulgence. I was in Utopia and I kept chasing that feeling on nirvana. All this naivety did not take away the pain but rather prolonged it and increased it exponentially. My turning point came after I was incarcerated.’[31]
[31] A1, pp 1-2.
The Applicant seems to acknowledge some measure of past wrongdoing by cautiously avoiding the allocation of any adverse characterization to it. He boldly says: ‘I have never hit a woman’[32] and that this Tribunal should simply ‘let slide’[33] the nature and extent of his past offending in the determination of this application. While the written record may contain what it does about his offending, he maintains a position that his actions ‘... were non-violent, they lacked physical malice or a deliberate intent to cause harm to my former partner.’[34] Again, in the Applicants own words:
‘Please note that I am not proud of my actions but I did not use violence and I have never hit a woman. I love women, my father used to abuse my mom. I did not like that and I will never put someone through that ….’[35]
…..
‘My life has been hard, from my ex-partners choices to struggling with substance abuse. I am sorry for my mistakes, including the ones that got me in trouble, but they are not as bad as other things that people let slide in immigration cases.’[36]
…..
‘The [Respondent] ….. asserts that my character is irrevocably tainted by an association with domestic violence and deprivation of liberty. It is imperative to clarify that while my actions were non-violent, they lacked physical malice or a deliberate intent to cause harm to my former partner.’[37]
The Applicant’s evidence: does he understand or acknowledge the nature of what he has done; is he remorseful for it?
[32] Transcript, p 13, line 21.
[33] A1, p 3.
[34] A1, p 13.
[35] A1, p 9.
[36] A1, p 3.
[37] A1, p 13.
During cross-examination, the Applicant was taken to a specific part of his written submission where he purported to express sorrow for his past offending. In his oral evidence, he did nothing of the sort. Instead, he spoke of being the victim of partnering with an aggressive woman, of being a victim of circumstances and that the present threat of deportation from Australia confronting him was ultimately a construct of the victim:
‘Yes. Yes, look, there’s a lot of bad decisions on both our parts, and I feel, at times, I copped a lot of the blame and a lot of the – a lot of the nastiness that she does create. I have to – I have to basically take it on the chin because that’s what I signed up for is to be in a relationship with this woman. And at times, it just seems that I always choose the most – how do I say it – the most aggressive woman, the most broken woman and I try and fix them when I should be trying to focus on myself. And it just – I end up in a lot of trouble from some of these – the women that I choose. I get into a lot of trouble from their choices. Some of them choose to hurt me in particular ways. And with [Ms C], she knows that, because I’m from New Zealand, if I get in trouble, the I get deported and my whole life gets destroyed and I lose everything. And that’s something that’s on the cards for her when she thinks of doing something nasty to me. That’s right up her alley. She gets very nasty. And like I say, I suffer from a lot of her choices and I can’t control what she says or what she does. I just have to basically admit defeat and let her win; bow out and let her win. I don’t know what to say.’[38]
[My emphasis]
[38] Transcript, p 12, lines 9-24.

The Applicant was challenged about his written submission in which he purported to suggest ‘... Transgressions lacked physical harm.’ In cross-examination he said he was caused to react in the way he did because of the victim's preceding conduct towards him:
‘I’m a reactive person. I react off the way that somebody’s treating me. So if somebody’s attacking me, then I’ll defend myself. And in the heat of the moment, I don’t know how I’m going to defend myself, but if I defend myself, then – I mean, if the person’s attacking me, then that’s – it gets very – how do I say it – it’s risky to both of us. Anything could happen.’[39]
[39] Transcript, p 12, lines 32-37.
He went on to specifically categorise his transgressions as not harmful in any physical sense:
‘Basically my transgressions, what got me in here, lack physical harm. There’s no physical harm in any of the situations that got me put in the – to begin incarcerated this time around. There are no physical injuries, nothing. I did not harm her at all. I got – I got seven months concurrent for four charges of breach of AVO.’[40]
[40] Transcript, p 12, lines 43-46.
The Applicant’s oral evidence then evolved to a limited concession that both he and the victim had been violent:
‘MR WEST: But you accept, though, that you’ve been violent to [Ms C] in the past?
APPLICANT: ---Not really, no. I haven’t been violent to her. Like I – like I said, I’ve only ever reacted off how she’s treating me.
…..
but I don’t – in my right-minded mind, I don’t really think I was being violent. I was just being active in the – in the situation and defending myself. And yes, they can get – it can get violent when people are both angry at each other and being aggressive. I mean, I guess so. I guess you’re – that answers the question. Yes, we were both being violent. I was being violent.’[41]
[My emphasis]
[41] Transcript, p 13, lines 4-6; lines 9-14.
Despite this brief flicker of a semblance of reason, the Applicant’s oral evidence again devolved into the realm of the unsustainable and absurd:
‘MR WEST: And then you go on to say, “I did not use violence and I have never hit a woman.” That’s not true, is it?
APPLICANT: ---Well, in my – in my heart of hearts, that’s what I believe, because I don’t think I’ve ever struck or lashed out at any female. But that’s between me and God. Only God knows and only God can judge me, because, at the end of the day, there’s no point me trying to tell you that I was the one getting beaten up; I was the one getting smacked around. I don’t – I don’t know how she concurred her injuries, but she was head-butting me. Maybe she included injuries from head-butting me. I don’t know.’[42]
[42] Transcript, p 13, lines 27-35.
The Applicant was then taken to a specific incident that occurred in September 2019. This incident resulted in the Applicant being convicted of ‘Aggravated Assault Occasioning Bodily Harm’ perpetrated against his domestic partner-victim. He purported not to know or recall this conviction. He purported to have recorded contemporaneous video footage of the incident which, he says, would have exonerated him. He said he provided this video footage to his legal representatives who somehow misplaced it as a result of which the Applicant was found guilty and convicted. Even a cursory review of the transcript compels rejection of the entirety of this evidence:
‘MR WEST: So you say it’s on the paper, CRNL, so you accept that you have been convicted of an offence that involved you punching [Ms C]?
APPLICANT: ---No. I didn’t realise that I had been convicted of something like that, no.
MR WEST: Well, if you can just go to page 488 of the remittal bundle, if you just – if you look at the bottom of page 487 as well, because that’ll help you with what you’re looking at, these are the facts for the aggravated assault occasioning bodily harm that you were convicted of?
APPLICANT: ---I didn’t realise that I was convicted of an assault charge against

[Ms C]. I did not – I did not realise that. That’s – yes, that’s crazy.
MR WEST: Well, do you remember this incident [in..] September 2019?
APPLICANT: ---Yes, I do remember this. And I swear I had video footage of the whole thing happening, and I sent it to my lawyer and they – somehow they lost the video footage. And I don’t know – I don’t know – it ended up putting me in a position where I was looking at going to jail for a long time….’
…..
I didn’t realise that I’d been convicted and charged for this. I thought that I had – I thought I had fought the situation and I got – I thought I – I didn’t think I got charged for it. I obviously don’t sit there and analyse and study everything that I’ve gone through in the past.’[43]
[43] Transcript, p 14, lines 18-33; lines 40-44.
To my mind, this failure to ‘….sit there and analyse and study everything...’ around the circumstances of his offending is precisely what a person now purporting to express remorse would have done. The totality of his evidence points to a person who abjectly refuses to express barely any measure of remorse for his very serious, violent offending and appalling conduct towards past female partners. His remorseful apology is limited to a concession that ‘yes, we were both being violent’[44] which is another way of saying they each gave as good as they got. This is just not the evidence.
[44] Transcript, p 13, lines 13-14.
Likewise, it is very difficult to now find the Applicant understands-or wants to

understand-the nature and extent of his offending. How can such a finding be made in the Applicant's favour where he casts himself as the victim in relationships where he chooses ‘the most aggressive woman, the most broken woman and I tried to fix them?’ He refused to concede that any of his ‘fixing’ conduct broke the law. Rather, he told the Hearing before me that his conduct was oriented towards defending himself and was otherwise the result of him being a reactive person. And further, that ‘.... I don't think I've struck or lashed out at any female. But that's just between me and God’[45] or that a given conviction was the fault of lawyers representing him who apparently lost important evidence having the potential to exonerate him. The totality of this evidence must be rejected for the vacuous and obfuscatory nonsense it is.
[45] Transcript, p 13, lines 29-30.
The Applicant’s conduct while in prison
The Applicant’s conduct while incarcerated has been less than exemplary. In November 2013, the Applicant was involved in a physical fight with two other prisoners resulting in a recommendation by the prison’s unit manager that he be ‘... charged for fighting.’[46] In September 2020, the Applicant was given a directive not to do something in relation to the use of the prison’s kitchen facilities. He became abusive and was told he would be losing his allocated job in the prison facility. This was met with ‘Fuck your job, you are all a bunch of [expletive deleted]’.[47] The Applicant was then ‘... escorted back to his cell... to reflect on his poor behaviour. While I was securing the door, [the Applicant] kicked the door a couple of times to show his displeasure.’[48]
[46] R1, p 277.
[47] R1, p 289.
[48] R1, p 289.
The Applicant’s conduct in prison should be compared to his conduct in immigration detention. As best as I understood the material, there are no reported incidents in immigration detention giving rise to internal admonishment or otherwise resulting in any conviction. This is not an insignificant element because he has been in immigration detention for the best part of three years. During this period, the Applicant has been in the relatively closed confines of immigration detention which has precluded an involvement in a domestic relationship and curbed his possibilities of accessing and abusing either or both illicit drugs and/ or alcohol. His capacity to moderate his conduct in a domestic scenario and sustain a pattern of abstinence from substance abuse in the community remains to be tested.
Has the Applicant experienced any deterrent effect?
The Applicant’s offending has been extensive and has occurred across a period of 10-11 years. He was afforded the benefit of non-custodial terms during about the first third off his offending. At that time he received a head custodial term of 15 months. This did not deter him because he then proceeded to commit a further 43 offences and to incur something in the order of 42 months of head custodial time and fines in the region of $16,150. It seems plain the Applicant is not a person predisposed to heeding a warning or learning a lesson from any sentencing regime imposed on him. This inability does not bode well for his prospects of remaining free from offending if returned to the community now.
Can there be said to be protective factors militating against the Applicant reoffending?
During cross-examination, the Applicant was asked whether he would-if returned to the community now-be resuming his relationship with Ms C[49]. He said the relationship ended in about April or May 2023.[50] Since then the Applicant said: ‘We have partially sent messages to each other but nothing formal really.’[51] It is just difficult to accept or find that the domestic relationship the Applicant previously enjoyed with Ms C will act as any sort of protective factor against his risk of re-offending were he returned to the community.
[49] Who is the biological mother of Avril and Child J; who is also the biological mother of Child A of whom the Applicant is the biological father. Ms C is was the Applicant’s most recent domestic partner prior to his most recent removal from the community. She has also been a victim of his family violence conduct.
[50] See generally, Transcript, page 5, lines 15-18.
[51] Transcript, p 5, lines 20-21.
The Applicant was then asked about whether he had maintained any form of contact with Ms C's children (and stepchildren of the Applicant), Avril[52] and/or Child J[53] during the period of his removal from the community. The Applicant confirmed Ms C has ‘… cut all communications with me, which is fine, because I'm finding it harder and harder myself to have a relationship with my children through the phone.’[54] The Applicant was ‘not sure’[55] when he last spoke to Avril.
[52] The adult child of Ms C and previous stepchild of the Applicant.
[53] The minor-aged child of Ms C and previous stepchild of the Applicant.
[54] Transcript, p 5, lines 33-35.
[55] Transcript, p 5, line 40.
The Applicant did not cavil with the suggestion that the position was any different in relation to Child J. He said ‘…I don’t’ want to force [Ms C] to have to allow me to have a relationship with [Child J].’[56] He said: ‘I’m trying to let that happen organically.’[57] It is difficult to accept that either or both Avril or Child J will act as any sort of protective factor(s) against his risk of re-offending in the event of his return to the community.
[56] Transcript, p 6, lines 4-5.
[57] Transcript, p 6, lines 4-5.
The Applicant was then taken to the biological child he has had with Ms C. That child is Child A who was born in August 2019 and who is now four years of age. Child A was born shorty before the Applicant was incarcerated in April 2020. At the Hearing the Applicant spoke of ‘…. and that’s the thing that’s changed my life is being away from my son…..I haven’t spent hardly any time in his life and he’s going on four years now, four and a half years. I’ve only been with my son eight months out of his life.’[58] Even though Child A was born in August 2019, the Applicant committed something in the order of 11 offences after that child’s birth. During the preceding nine months when Ms C was pregnant with Child A, the Applicant committed at least four offences comprising (1) Possess drug paraphernalia; (2) Breach of Police Order; (3) Disorderly behaviour in public; and (4) Possess a Prohibited Drug (Cannabis). I am hard-pressed to understand or accept that Child A will act as some sort of protective factor against the Applicant’s risk of re-offending if returned to the community.
[58] Transcript, p 11, lines 17-20.
The Applicant’s unresolved issues with the abuse of illicit drugs and alcohol
The Applicant’s abusive relationship with alcohol and illicit drugs is a long one. His difficulties with methylamphetamine date back almost 20 years. He told the previous Tribunal hearing (held on 31 May and 1 June 2021) that he first started using methylamphetamine in ‘…..2004, ‘05, ‘06, ‘07. Maybe three years into being here in Australia.’[59] He also told that hearing that he was using ‘Quite a lot’[60] of methylamphetamine at the rate of ‘At least at a minimum, three times a day’.[61] He further told the previous hearing that in around 2011 he was also taking the drug ecstasy under the influence of which he assaulted a female victim by punching her in the face. According to the Applicant, his being under the influence of ecstasy ‘….had a massive impact on what happened’[62] comprising the subject incident.
[59] R3, p 49, lines 22-23.
[60] R3, p 12, line 34.
[61] R3, p 12, line 38.
[62] R3, p 26, lines 13-14.
The Applicant’s difficulties with substance abuse have also come to the attention of at least one judicial sentencing officer who has dealt with him. When sentencing the Applicant on a conviction for ‘Deprivation of Liberty’ in July 2013, the learned sentencing Judge[63] noted: ‘You’ve abused amphetamine, cannabis and alcohol and you accept that these substances have caused you to be paranoid and have fluctuating moods but you don’t see them as playing a part in your offending.’[64]
[63] Her Honour Judge Wager.
[64] R1, p 224.
The absence of current and independent clinical evidence
The Tribunal’s task involving assessment of the Applicant’s recidivist risk is made significantly more difficult and speculative in circumstances where there is no contemporaneous or current clinical opinion about the factors predisposing him to so very seriously offend. To say there is no evidence of this sort before the Tribunal is not strictly correct. Over a decade ago, at least one judicial sentencing officer took note of certain psychometric testing conducted upon the Applicant. In her sentencing remarks made in July 2013 when sentencing the Applicant on a charge of ‘Deprivation of Liberty’, the learned Judge Wager noted (1) the Applicant’s history of abusing ‘amphetamine, cannabis and alcohol’; (2) that those substances have caused him to be paranoid and have fluctuating moods; but that (3) the Applicant did not have any insight or acceptance about the extent to which those substances have played a part in his offending.
If (1) the Applicant has no realisation or understanding of the extent to which abuse of those substances have predisposed him to offend; and (2) if there is no current clinical analysis directed towards this question, how can this Tribunal now venture into the territory of definitively stating the level of recidivist risk he now represents? In her abovementioned sentencing remarks made in July 2013, Judge Wager noted the following:
‘On psychometric testing Ms Hassan, the psychologist, found the presence of depressive, anti-social and passive aggressive personality traits and indications of depression. You describe your mood as okay but you have difficulty sleeping and you feel anxious which is consistent with being in the prison system.
Ms Hassan recommends that you take part in the Men’s Domestic Violence Program. She notes with concern that you have virtually no victim empathy and that’s a major concern of the author of the pre-sentence report. I accept that given what you’ve been through in your life it’s very hard for you to grasp the concept of empathy but that is something that you’re going to have to work hard on doing.
The author of the pre-sentence report also notes that domestic violence, substance use, difficulties managing your emotions and limited conflict resolution skills and
not taking personal responsibility are matters that you need to address and she suggests that you do that through counselling and that it would be a skilled counsellor who could assist you in this way because of the barriers that you put up because of what you've been through.’[65]
[65] R1, p 224.
True it may be that the Applicant has completed some rehabilitative courses. The relevant completion certificates appear at Exhibit A2. But those certificates are evidence of his completion of courses. They are not the independent clinical opinion of an expert who has examined the Applicant and who can tell us the extent to which completion of those courses favourably impact his recidivist risk. More broadly, the Applicant cannot point to a current clinician who has examined him with particular emphasis on (1) his history of substance abuse; (2) psychopathological factors behind his apparent lack of consequential thinking; and (3) how and to what extent the abuse he reports having occurred earlier in his life now speaks to pre-dispositive factors behind his very serious offending.
The situation did not improve during his oral evidence given in cross-examination. Despite saying in his PCF he was taking medication for ‘anxiety…depression [and] PTSD’[66], he told the instant Hearing ‘I’ve stopped taking the medication’ due to ‘bad side effects’.[67] He stopped taking this medication a year ago.[68] He was then asked about whether he was presently receiving (or seeking out) any mental health treatment and whether the childhood sexual abuse he claims to have suffered was the subject of any psychological treatment. He responded with this:
‘MR WEST: Are you having any other treatment for your mental health at the moment?
APPLICANT: Other than frequent exercise and just meditation, no, I’m not. I plan to get – how do I say it – when I – when I get – when I eventually get out of detention, I do want to go and find a doctor that can prescribe me a medication that doesn’t give me the side effects that I was having from the medication that they’ve been giving me in detention.
….
MR WEST: In your most recent statement, the one from December last year, you talk about some abuse that you suffered as a child. From reading that statement, it’s fair to say that that’s something that still affects your mental health?
APPLICANT: Yes, it is.
MR WEST: You aren’t seeing a psychologist or a counsellor or anyone like that, are you?
APPLICANT: No, I’m not. I prefer to just try and forget about it and just keep moving forward without it being a reoccurring thought and hindering my day-to-day progress.’[69]
[66] R1, p 83.
[67] Transcript, p 4, lines 29-31.
[68] See generally, Transcript, p 4, line 37.
[69] Transcript, p 4, lines 39-44; p 5, lines 1-9.
The state of the Applicant’s treatment for his mental health symptoms remains aspirational (‘find a doctor’) or the subject of self-treatment (‘try and forget about it’). There is no clinical who has (1) identified the symptoms/diagnosed any condition(s) adversely impacting the Applicant’s psychopathology; (2) defined a program of treatment to bring those symptoms under some form of remedial management and control; and (3) provided some kind of resulting prognosis about how such rehabilitative treatment now favourably speaks to the Applicant’s level of recidivist risk.
Findings about recidivist risk
As mentioned earlier, this is the second ventilation of this application before this Tribunal. This has resulted in a bulky level of material. Despite that bulk, there is a relative dearth of independent and ultimately reliable evidence around recidivist risk. Having regard to the state of this bulky material (and the oral evidence given at both Tribunal hearings) I have arrived at the following conclusions about the Applicant’s current recidivist risk:
·capacity to identify causative factors: the Applicant seems able to identify specific causative factors behind his offending. But he does not comprehend how those factors have predisposed him towards the commission of very serious offending;
·remorse and acceptance of wrongdoing: at least one judicial sentencing officer thought he displayed virtually no victim empathy and that he was no good at accepting responsibility for his offending. It must be said that the obfuscatory and self-serving tone of his evidence before the instant Hearing did little to dispel these impressions;
·conduct while in prison: while some of his conduct in prison has been more unruly than unlawful, this misconduct does betray an incapacity to manage his tendency for inconsequential thinking about the consequences of his actions. The consequences were benign in prison. They were clearly harmful and potentially catastrophic when committing his family violence conduct in the community;
·no deterrent effect: the Applicant’s criminal history gives the clear impression of someone who has failed to heed any warning or take any lesson from the sentences imposed on him. I did not take from his evidence given before me any impression that he has now experienced any such deterrent effect;
·the failure of protective factors to prevent offending: the evidence contains reference to support networks of the Applicant in Australia that could now be said to be bulwarks against his risk of further offending. None of (1) the relationship with Ms C; (2) his step-fatherly role for Avril and Child J; and (3) his role as a biological father to Child A prevented him from offending. The evidence does not suggest such factors will more effectively prevent him from offending in future;
·unresolved and undefined substance abuse issues: in my non-clinical opinion, these issues have been front and centre-in a dispositive sense-in the Applicant’s pattern of offending. There is a concerning historicity behind the Applicant’s substance abuse issues stretching back some 20 years. While they remain unresolved or unaddressed, his recidivist risk remains uncertain and, ultimately, unknown;
·the absence of current and independent expert clinical evidence: the Applicant’s symptom(s) and diagnosis(es) predisposing his offending conduct remain unknown and untreated. His prospects of sourcing and receiving such rehabilitative treatment are aspirational and otherwise to be self-determined.
Assessment of recidivist risk

I am hard-pressed to identify a single evidentiary factor on which a finding about the Applicant’s current level of recidivist risk can be reliably made. The absence of clinical intervention and reporting is concerning. The Applicant talks about re-entering the community and assuming the respective responsibilities of remunerative employment and active parenting. These aspirationally expressed intentions are not supported by, or predicated on, supportive clinical opinion that past pre-dispositive factors behind his offending are now under satisfactory management and control.
In these circumstances, I consider it unsafe to venture any assessment of actual future risk. To the extent I am required to meet this requirement, I will say (and find) that this Applicant’s current level of recidivist risk-in the event of a return to the Australian community-cannot be safely found to be any different to what it was at the time of his most recent removal from that community.
Sub-paragraph 8.1.2(2)(c)
The Direction also contains a reference to sub-paragraph 8.1.2(2)(c). With reference to this specific sub-paragraph, this matter does not involve a ‘refusal to grant a visa to a
non-citizen’. It involves an application for the ‘revocation’ of a decision refusing to revoke the earlier mandatory cancellation of the Applicant’s Visa. This specific paragraph is not relevant to the determination of this application.
Conclusion of Primary Consideration 1:
With reference to the weight attributable to this Primary Consideration 1:
(a)I have found the nature and seriousness of the totality of the Applicant’s conduct to date has been very serious;
(b)I have found that recommission of all or part of the Applicant’s offending would have the potential for the occasioning of physical, psychological, measurably material and, quite realistically catastrophic harm to its victims;
(c)I have found the Applicant’s current level of recidivist risk cannot now be safely found to be any different to what it was at the time of his most recent removal from the Australian community.
My analysis of the material leads me to a finding that this Primary Consideration 1 confers a very heavy level of weight towards this Tribunal affirming the Decision Under Review.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
1The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
2This consideration is relevant in circumstances where:
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
3In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
(a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
(i)     the extent to which the person accepts responsibility for their family violence related conduct;
(ii)    the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii)   efforts to address factors which contributed to their conduct; and
(d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
This Applicant has both (1) actual convictions for domestically violent conduct; and (2) perpetrated family violence conduct that has come to the attention of law enforcement authorities, but for which he was not charged or convicted. In terms of the former, the Applicant has convictions for acts of family violence as follows:
·on 25 February 2013, he was convicted of ‘threats to injure, endanger or harm any person; threat/s to destroy, damage, endanger or harm property; wilfully’ and ‘unlawfully destroy or damage property’;
·on 25 February 2013 and 16 July 2013, he was convicted of ‘deprivation of liberty, wilfully and unlawfully destroy or damage property; common assault in circumstances of aggravation’;
·on 7 September 2019, he was convicted of ‘aggravated assault occasioning bodily harm’;
·on 30 April 2020, he was convicted of ‘common assault in circumstances of aggravation; breach of protective bail conditions’; and
·on 16 November 2020, he was convicted for six breaches of a ‘family violence restraining order’.
With reference to his family violence conduct that was duly recorded as having been perpetrated but for which he was not charged and convicted, the material contains the following:
·on 12 June 2011, police were called following an argument between the Applicant and his then partner. After initially leaving the house, the Applicant returned and the argument between him and her resumed. When it resumed, it culminated in him punching her in the face causing bruising and swelling to her face. This incident was duly described in a report made by the South Australian Police Force, a copy of which appears in the material;[70]
·on 20 February 2016, an ex-partner of the Applicant contacted the police and reported that over the last 48 hours he had become aggressive and very jealous towards her. She reported that during an argument between them on the previous day he put his forehead on hers and started shouting abusing things towards her. She also reported that when the Applicant left the scene of that earlier argument, he told her ‘I have bullets, and I’m going to kill you.’ This incident was duly described in a report made by the Western Australian Police Force, a copy of which appears in the material;[71]
·on 13 October 2017, a neighbour of the Applicant and Ms C called the police upon hearing an argument between them. When the police arrived, Ms C told them that the argument occurred as a result of the Applicant tyring to discipline one of her children but instead started yelling at the child and then kicking a heating appliance. Ms C also told police that following the Applicant turning his anger towards her, she ran out of the dwelling and into the backyard where she screamed for help and tried to jump over a bamboo fence. She failed in that attempt and the Applicant caught up with her, pulling her down off the fence and pinning her to the ground. This incident was duly described in a report made by the Western Australian Police Force, a copy of which appears in the material;[72]
·
on 23 December 2017, there was a further incident between the Applicant and

Ms C. A member of the public noticed the Applicant expressing feelings of jealousy towards Ms C. Those expressions were sufficiently animated such as to lead to him physically grabbing Ms C, putting his arm around her neck, dropping her to the floor which resulted in the Avril and Child J to run out of the house and seek help. This member of the public was sufficiently concerned about this conduct to call police who duly arrived. This incident was described in a report made by the Western Australian Police Force, a copy of which appears in the material;[73] and
·on 12 April 2018, the adult child of Ms C, Avril, contacted the police as a result of the Applicant’s conduct towards her mother, Ms C. This conduct involved the Applicant grabbing Ms C, dragging her around the house and throwing drinking glasses at her. This incident was described in a report made by the Western Australian Police Force, a copy of which appears in the material.[74]
[70] R1, pp 634-637.
[71] R1, pp 469-471.
[72] R1, pp 456-457.
[73] R1, pp 452-455.
[74] R1, pp 445-449.
Paragraph 8.2 of the Direction compels two initial inquiries: (1) it is necessary to ascertain who was a member of the Applicant’s family? and (2) whether any of the Applicant’s conduct against any such family member amounts to family violence for present purposes? I will address each question in turn.
Who are members of the Applicant’s family?
Paragraph 4(1) of the Direction provides that ‘….a person who has, or has had, an intimate personal relationship with the relevant person’ is a ‘member of the person’s family’ for the purposes of the definition of family violence. I am satisfied that each of the victims of the Applicant’s abovementioned conduct-both convicted and reported but not convicted-were members of his family for present purposes.
Did any of the Applicant’s conduct constitute family violence?
‘Family violence’ is defined in the Direction. It is defined as ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful’.[75] This definition poses two separate questions:
·was the Applicant's conduct violent, threatening, or other behaviour that coerced or controlled a member of his family?
·was the Applicant's conduct violent, threatening, or other behaviour that caused a family member to be fearful?
[75] Paragraph 4(1) of the Direction.
It is abundantly clear from the various descriptions of the Applicant’s conduct - both

(1) convicted and (2) reported but not convicted - was without question violent, threatening and/or behaviour that sought to coerce or control each of the victims and members of his family. I have no hesitation in finding that his conduct in each of the incidents-both

(1) convicted and (2) reported but not convicted-was violent, threatening and that it comprised behaviour that caused each of its victims to be fearful.
Is the Applicant’s conduct captured by paragraph 8.2 of the Direction?
As mentioned earlier, this Applicant has perpetrated family violence conduct that has been the subject of actual convictions and which has been reported by police but not actually charged and convicted. With specific reference to paragraph 8.2(2)(a), the convictions of the Applicant for domestically violent conduct satisfy this provision. These convictions for family violence conduct do constitute family violence for the purposes of the Direction.
With reference to his family violence conduct that has been reported, but not charged or convicted, I will make a finding that such conduct satisfies the requirement of paragraph 8.2(2)(b) of the Direction. Each of the reports of this category of the Applicant’s family violence conduct were made by suitably experienced attending police officers who, on any reasonable view, would have (or had) commensurate experience in the preparation of such reports. The authors of those reports can now be found to have been an independent and authoritative source for each report that was prepared. Therefore, for the purposes of paragraph 8.2(2)(b) of the Direction, the Applicant’s reported but not convicted family violence conduct must be found to constitute family violence for the purposes of the Direction. I so find.
Assessment of the seriousness of the Applicant’s family violence
I will now consider each of the factors in paragraph 8.2(3)(a)–(d) in turn for the purposes of assessing the nature and seriousness of the Applicant’s family violence conduct.
Paragraph 8.2(3)(a): Paragraph 8.2(3)(a) requires an analysis of the frequency of the Applicant’s family violence conduct and/or whether there is any trend of increasing seriousness. The Applicant’s criminal history speaks for itself: he is plainly a frequent perpetrator of family violence. There is no requirement to look for any trend of increasing seriousness to his family violence conduct because, whether he was charged and convicted for it of whether it was only reported by attending police, it has been serious from its outset. This particular paragraph militates in favour of a finding that the Applicant’s family violence conduct has been of a ‘very serious’ nature.
Paragraph 8.2(3)(b): requires consideration of the cumulative effect of repeated acts of family violence. An obvious cumulative effect has been the physical and emotional trauma occasioned upon victims. Equally appalling is the undeniable reality that the Applicant’s conduct has drawn infant children into its orbit. I have earlier described at least two instances where the now adult child Avril- who only turned 18 in April 2023 – felt sufficiently compelled to report the Applicant’s conduct to the police and to seek their intervention. Avril was well under the age of 18 years when she made these reports to the police. Perhaps even more appalling was the Applicant’s conduct resulting in his conviction on 30 April 2020 for common assault in circumstances of aggravation. The indicia of this conduct is particularly significant because it not only resulted in harm to Ms C, but also to the infant child in the vicinity whose capsule fell to the ground during the assault. The Applicant’s family violence conduct has also been of such a nature as to cause a neighbour and another casual observer of his conduct to feel compelled to call police. These cumulative effects of the Applicant’s family violence conduct causes this sub-paragraph to militate in favour of a finding that the Applicant’s family violence conduct has been of a ‘very serious’ nature.
Paragraph 8.2(3)(c)
: requires consideration of any rehabilitation achieved by the Applicant at the time of my decision since his last known act of family violence. This

sub-paragraph requires three enquiries:
first, sub-paragraph 8.2(3)(c)(i) looks for the extent to which the Applicant has accepted responsibility for his family violence related conduct. I have earlier recounted the nature of the Applicant’s evidence in response to questions about his family violence conduct put to him during cross-examination. It will be recalled that his responsive posture when this conduct was put to him was vacuous, obfuscatory and ultimately devoid of credibility. This sub-paragraph does not assist him;
(ii)second, sub-paragraph 8.2(3)(c)(ii) seeks to understand the extent to which a non-citizen comprehends the impact of their behaviour on the abused person. I am hard-pressed to take any positive impression from the Applicant’s written and oral evidence that he has understood the impact of his behaviour on both the victims and other people it drew into its orbit such as children, a neighbour and a casual observer in a social context. This sub-paragraph does not assist him;
(iii)third
, sub-paragraph 8.2(3)(c)(iii) seeks to identify efforts made by a

non-citizen to address the factors which contributed to their family violence conduct. While he has completed some rehabilitation courses, the self-serving nature of his evidence makes it difficult to understand or find any extent to which those courses could now be said to have assisted the Applicant to identify and address factors contributing to his domestically violent conduct. While he may have done such courses, it seems they have done little to convince this Tribunal that this sub-paragraph may assist him. It does not.
The outcome of the three inquiries compelled by this paragraph 8.2(3)(c) cumulatively militate in favour of a finding that Applicant’s family violence conduct has been of a ‘very serious’ nature. I so find.
Sub-paragraph 8.2(3)(d) requires me to look at whether the Applicant has, ‘re-offended since being formally warned, or otherwise since being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence’. I have searched the material and have found two ‘Restraining Order Details’ documents. The first is dated 25 June 2012[76] and the second 24 August 2020[77]. Both of those documents explain what the Applicant must do and/or refrain from doing so as not to breach them. I am satisfied that these documents constitute either formal warnings or another form of notification to the Applicant about the consequences of further acts of family violence. He ignored these warnings and continued to commit acts of family violence. This sub-paragraph does not assist him and it militates in favour of a finding that his family violence conduct has been of a ‘very serious’ nature.
[76] R1, p 509-510.
[77] R1, p 507-508.
Conclusion: Primary Consideration 2
I have found that sub-paragraphs 8.2(3)(a)-(d) facilitate a finding about the very serious nature of the Applicant’s family violence conduct. Having regard to my findings referrable to the various components of paragraph 8.2(3)(a)–(d) (inclusive), I am of the view (and I find) that this Primary Consideration 2 confers a very heavy level of weight in favour of this Tribunal affirming the Decision Under Review.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
Paragraph 8.3(1) of the Direction states:
(1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
The subsequent sub-paragraphs 8.3(2) and 8.3(3) of the Direction provide guidance to a decision-maker in how to determine the weight allocable to a person’s ties to his child/ren and social links wherein the child/ren and the social links of the person are Australian citizens or permanent Australian residents and/or who have a right to remain in Australia indefinitely.
In the assessment of any other ties a person may have in Australia, paragraph 8.3(4) of the Direction requires a decision-maker to have regard to:
(a)the length of time the non-citizen has resided in the Australian community, noting that:
(i)     considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
(ii)    more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii)   less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
Paragraph 8.3(1): Consideration of the impact of this decision on the Applicant’s immediate family members
It is first necessary to identity the Applicant’s immediate family in Australia who are citizens, permanent residents or people who have a right to remain in Australia indefinitely. Having regard to the abovementioned master list, the Applicant has the following immediate family members residing in Australia who fall within the auspices of this paragraph 8.3(1) of the Direction.
As best as I understood the material, the Applicant (in his Personal Circumstances Form (‘PCF’)) claims to have the following immediate family members in Australia:
·his mother;
·his stepfather;
·his father;
·his brother; and
·his three sisters.

At the Hearing before me, the Applicant was taken to the extent of his relationship with his 19 year-old adult child, Inia. As will be recalled, Inia is based in New Zealand but comes to Australia for varying periods from three to six months at a time to do his seasonal work in the sheep shearing industry. According to the Applicant, Inia does this work with his mother.[131] Inia has not visited the Applicant during his time in immigration detention but did speak with him on the day before the instant Hearing.[132] The Applicant was then asked about the likely extent of his involvement with Inia if removed to New Zealand and he said the following:
‘MR WEST: So if you do have to return to New Zealand, I assume you’ll go and catch up with Inya [sic]? And is the plan to sort of live near him, or?
APPLICANT: Absolutely I’ll go catch up with him, but I’m not going to go, like, move to the town that he’s in and, like, and chase him. He’s a – he’s an adult now and he’s just doing his thing. He doesn’t – he doesn’t really like having me all up in his business and things like that. He’s obviously developed his own life and the things that he likes to do and I’m basically just supportive and grateful that my son has chosen a good path and that he does stay out of – out of trouble and things like that which allows me to be able to focus more on my younger children.’[133]
[131] See generally, Transcript, p 7, lines 8-11.
[132] See generally, Transcript, p 7, lines 19-22.
[133] Transcript, p 7, lines 36-46.
In his PCF, the Applicant says the only family member he has in New Zealand (apart from Inia) is his father.[134] Later in the PCF he said that if removed to New Zealand he would be ‘Without my support people and my family. I’d end up homeless dead or in jail. Without my children in my life I would lose myself. And I’d struggle emensely [sic].’[135]
[134] R1, p 80.
[135] R1, p 84.
It can be accepted that the Applicant has a minimal level of social support in New Zealand. His father is there but the relationship between them does not appear close. Inia is there but he spends between three and six months of each year in Australia working in the sheep shearing industry with his mother. Economically, the Applicant should be able to find remunerative employment in New Zealand having worked here as a storeman, labourer, powder coater and cabinet maker. There is nothing to suggest that his experience in doing these jobs here is not transferrable to New Zealand. To the extent he may require it, the Applicant will have available to him whatever Centrelink-type social security or unemployment benefits as is available to those without employment in New Zealand. I have already mentioned (and found) that the Applicant’s claimed medical issues do not impede his return and resettlement in New Zealand. At best, the relative lack of social support in New Zealand may be said to constitute a moderate impediment to him returning there.
Findings about impediments
Given my findings about each of the three sub-paragraphs to this paragraph 9.2 of the Direction, I am of the view that this Other Consideration (b) confers a moderate level of weight in favour of this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant’s Visa.
Other Consideration (c): Impact on victims
Most usually in these applications, this Other Consideration (c) weighs either neutrally or against an Applicant. It weighs neutrally because there is no statement from a victim in which that victim talks about how they would be impacted in the event an applicant were successful in this type of application. It weighs against an applicant where the Tribunal has such a statement from a victim expressing how they would be adversely impacted by a decision facilitating a return of the applicant to the Australian community.
Here, we have one of the victims of the Applicant’s offending, namely Ms C, who, in two statements made in 2021, is actively supportive of him having his Visa returned to him so that he can remain in Australia. There is authority for the proposition that the evidence of a victim who is supportive of an Applicant remaining in Australia can be taken into account and can work in favour of an Applicant. This scenario was contemplated by His Honour Justice Kerr in PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. When discussing two other relevant authorities, His Honour noted:
‘57 I am satisfied that nothing in CGX20 as has settled the construction to be given to cl 14.4[136] requires, contrary to that guidance, a victim to be heard only as to such impacts as weigh in favour of the cancellation of a visa. I reject that DKN20 requires it.
58 It can be accepted that usually such impacts will weigh in favour of the cancellation of an offender’s visa.
59 Usually, but not always.’ [137]
[136] Note to reader: His Honour Kerr J is referring to clause 14.4 of Ministerial Direction 79, which was the relevant Ministerial Direction in force at the time.
[137] [2021] FCA 1235, [57]-[59].
I have earlier referred to the two respective statements of Ms C which appear in the material and which were made in February and April 2021.[138] On any reasonable view, these statements are supportive of a finding that Ms C is in favour of the Applicant remaining in Australia. As I have also mentioned earlier, these statements are now three years old and they have not been contemporised by Ms C being called to give evidence at the Hearing before me. The further complicating factor is that, on the Applicant’s own evidence, he and Ms C are no longer in a relationship.[139] Given this more recent development, it is difficult to lend credibility to the supportive tone (towards the Applicant) expressed by Ms C in these two statements dating from 2021.
[138] R1, pp 711-714.
[139] See generally, Transcript, p 5, lines 11-29.
I do note however, that she did give oral evidence at the previous ventilation of this application in mid-2021, some three years ago. I am hard-pressed to see where in her oral evidence to the previous Tribunal she is supportive of him staying here. Ms C was asked by the previous Tribunal (differently constituted) whether she would relocate to New Zealand with the Applicant if he were unsuccessful in recovering his Australian Visa and she vaguely said ‘Yes, a bit part of me would want me-would want to.’[140] As best as I understood the orientation of her evidence given at the last hearing, it sought to exculpate the Applicant from an adverse finding about the extent of his family violence conduct in particular and the volatile state of their relationship more generally. Be that as it may, I will cautiously have regard to Ms C’s two statements and her oral evidence given at the previous hearing and I will, pursuant to the authority of PGDX, allocate a moderate 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
[140] R3, p 68, lines 19-20.
The Applicant’s evidence
While the Applicant’s most recent statement contains no reference to any business or other undertaking that could be affected by his removal, he did make reference to it during questions I put to him at the Hearing before me. It is worth recording what the Applicant said about his mother’s catering business, how he could become involved in it if returned to the community and how that option of becoming involved in the catering business should be viewed in the context of the Applicant’s other employment options:
‘SENIOR MEMBER: If you come into the community, what are you going to do for work? Where is there [sic] first place you will go to get a job and make an income?
APPLICANT: I’d go probably straight to Bunbury and spend time with my mum. Look, as you know, she’s been sick with stage 3 breast cancer. I’d like to just spend some time with her for a little bit. And we have a family-run business, a catering business. And also, my mum does community service work where she helps feed the homeless, and I, from time to time, when I was out, I would always go and help my mum deliver food to people in Bunbury that are otherwise struggling or need help, and I’d do that just because I don’t like my mum doing manual labour. She is retired, and in my mind, if I’m there and I’m available, I can go help her, and that’s what I do.
….
SENIOR MEMBER: Go on. Sorry, please go on?
APPLICANT: I would like to help her with the family business as it is taking a bit of a – she has taken a break from the family business and it’s not running at the moment because she needs that extra help; also because she is unable to do a lot of the things she used to because of her illness. She basically has spoken to me about basically taking the business and doing the business for myself, which is catering.
SENIOR MEMBER: Was that a business that she ran and owned and has run and owned or did she run it with other people (indistinct)?
APPLICANT: Yes, yes, it’s – yes.
SENIOR MEMBER: So the reality is that, if you’re released into the community, you’ll come back and head to the Bunbury area to spend time with your mother, who’s got stage 3 breast cancer. Your mother, you say, ran a family catering business which needs a bit of lifting up now because she hasn’t been able to work as strongly as she used to because of her illness, so your first port of call, as it were, in relation to work will be the family catering business, and the backup you would have to that, I presume, is in joinery and foreman work at construction projects, but that’s your fall-back position. Would that be right?
APPLICANT: Yes, that’s correct. Also, I would – this time around, I think I might try and get back into the mines also if there’s work available there. I’m going to try and get back into the mining industry as well.
SENIOR MEMBER: So carpentry, joinery, the mines, catering. You do have employment options. That’s right, is it? Are you there? Can you hear me?
APPLICANT: Yes, I can.
SENIOR MEMBER: So you do have employment options? I was just saying catering with your mum, you’ve got fall-back positions to seek work in a minutes as well as work in carpentry and joinery? That’s right?
APPLICANT: ---Yes.’[141]
[141] Transcript, p 21, lines 25-35; 39-47; p 22, lines 1-19.
The mother’s evidence
I again refer to the mother’s abovementioned statement dated 13 April 2021. In that statement she says this: ‘I will need support & physical help from [the Applicant] with physical food business if at all possible.’[142] Although she did not give oral evidence at the Hearing before me, she did give oral evidence at the previous ventilation of this matter in this Tribunal (differently constituted). At that hearing, she was asked about her catering business and the Applicant’s involvement in it. She responded in these terms:
[142] R1, p 703.
‘PREVIOUS TRIBUNAL: You actually own a shop or run a small business?
APPLICANT’S MOTHER: We do. We haven’t since COVID came in because it’s just been really difficult.
PREVIOUS TRIBUNAL: What sort of shop is it?
APPLICANT’S MOTHER: It’s a takeaway shop, predominantly making New Zealand food. So we, yes, so it is mainly really a catering, we cater.
PREVIOUS TRIBUNAL: Has your son assisted you in the shop before?
APPLICANT’S MOTHER: He’s done all the heavy work because I don’t really like doing any heavy work so I use my sons.
…
PREVIOUS TRIBUNAL: Okay?
APPLICANT’S MOTHER: There’s a lot of heavy work.
PREVIOUS TRIBUNAL: How many hours a week was he actually doing before he went to gaol?
APPLICANT’S MOTHER: We could do anything between 20 and 30 hours a week. It really depended on what we were catering for. So we weren’t open to the public. We did a lot of advertising and a lot of our work came through our advertising.
PREVIOUS TRIBUNAL: So how have you been coping since he’s been in gaol?
APPLICANT’S MOTHER: You mean with work?
PREVIOUS TRIBUNAL: Yes?
APPLICANT’S MOTHER: It’s been very quiet.’[143]
Arachchi[144]
[143] R3, p 56, lines 35-42; lines 45; p 57, lines 1-9.
[144] Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311.
The question for present purposes is whether the Applicant’s removal to New Zealand would cause an impact on the mother’s catering business or whether his removal and consequential impact on that business would significantly compromise the delivery of the catering service it has provided to its customers. In Arachchi His Honour Mr Justice Rangiah said:
‘Paragraph 9.4.2 of Direction 90 commences by stating that, “Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia ...”. The requirement is to consider any impact on Australian business interests. The requirement is not confined to business interests of a particular scale or importance.
Paragraph 9.4.2 goes on to state that, “an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia”. Three observations may be made. First, this qualification applies only where there is a relevant “employment link”. Second, even where there is a relevant “employment link”, decision-makers are not relieved from their obligation to consider any impacts on Australian business interests. Third, while “generally” weight will only be given to the impact on business interests where the cancellation decision would significantly compromise the delivery of a major project or delivery of an important service in Australia, the Direction does not purport to preclude decision-makers from giving weight to impacts on business interests in other circumstances.
The expression “employment link” must refer to a link between employment of the former or prospective visa holder and impacts on Australian business interests resulting from the person not being able to engage in such employment as a result of cancellation or refusal of a visa. It is unnecessary, in the absence of argument, to consider precisely what is meant by “employment” in this context, or to consider the nature of the link that is envisaged. It is enough to conclude that, in the present case, the applicant’s claim was not confined to any “employment link” but was that he had an ownership interest in a business and that his removal from Australia would affect his partner’s business interests.’[145]
[145] Arachchi, [68]-[70].
Applying Arachchi to the instant facts, I am satisfied that the subject catering business is not excluded from consideration due to its relative scale or importance. I am also satisfied – on the basis of the mother’s evidence at the previous hearing – that there is an ‘employment link’ between the Applicant and the mother’s catering business and that the language of paragraph 9.4(1) of the Direction does not preclude me from giving weight to any impact on the catering business even if it is not a ‘major project’ and even if it does not comprise ‘delivery of an important service in Australia’. As against these findings, it must be found that the extent of the Applicant’s ‘employment link’ to the catering business does not extend to an ownership interest such that his removal from Australia would necessarily affect the mother’s interests in that catering business. Speaking frankly, she could readily employ an independent third person to do ‘all the heavy work’ (as she referred to it) that the Applicant has previously done.
Findings about this Other Consideration (d)
There are two themes to my findings about weight allocable to this Other Consideration (d). First, as the Applicant told us in his own evidence, re-involvement by him in the mother’s catering business is but one of a range of employment options open to him. Those other options include working in carpentry, joinery and in the mines. The further critical point is this: this Applicant has been out of the community for about five years. In that time the mother has continued to run the catering business without him. Her capacity to do so was not significantly compromised or disrupted during the period of his removal from the community.
Second, the Respondent contends that I should not allocate any weight to this Other Consideration (d) ‘…because its really something more of a bare assertion….And even when its considered against the direction, there isn’t any suggestion that it’ll compromise major service delivery or any of those aspects set out in the direction.’[146] I agree with this contention but only to the extent that the Applicant’s proposed re-involvement in the catering business represents a ‘bare assertion’. I agree that it is a bare assertion because of the range of other employment options open to him if returned to the community and because the mother appears to have maintained conduct of the business without any involvement from the Applicant over the last approximately five years of his removal from the community.
[146] Transcript, p 32, lines 19-23.
On the basis that the Applicant may return to the catering business and in the circumstances of the mother’s significant health difficulties with breast cancer, I will form the view that this Other Consideration (d) attracts, at best, a moderate level of weight towards restoration of the Applicant’s Visa status to remain here.
Findings: Other Considerations
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 moderate weight in favour of revocation; and
(d)impact on Australian business interests: is of moderate weight in favour of revocation.
CONCLUSION
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 decision. As noted (and found) previously in these Reasons, the Applicant does not pass the character test.
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 very heavy level of weight in favour of affirming the Decision Under Review;
·Primary Consideration 2: carries a very heavy level of weight in favour of affirming the Decision Under Review;
·Primary Consideration 3: is of a moderate weight in favour of setting aside the Decision Under Review;
·Primary Consideration 4: is of moderate 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.
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), (c) and (d) are outweighed by the combined weights I have allocated to Primary Considerations 1, 2 and 5.
A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding that there is not another reason to revoke the mandatory cancellation of the Applicant’s Visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), this Tribunal affirms the decision made on 26 March 2021 by a delegate of the Respondent to not revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

I certify that the preceding 171 (one hundred and seventy -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

..............[SGD]...........
Associate
Dated: 20 March 2024

Date of hearing: 8 February 2024

Representation for the Applicant: Self-represented litigant

Solicitor for the Respondent: Mr Chris West (Associate)

Sparke Helmore Lawyers
ANNEXURE A

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE RECEIVED

RESPONDENT SUBMISSIONS

R1

Remittal bundle

Various

13 November

2023

R2

Statement of Facts, Issues and Contentions

22 January 2024

22 January 2024

R3

Transcript of previous Tribunal proceedings.

Various

24 January 2024

APPLICANT SUBMISSIONS

A1

Statement of Facts, Issues and Contentions

27 December 2023

1 January 2024

A2

Bundle of course completion certificates

Various

1 January 2024

[2024] AATA 458

20 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal

Date of hearing:	8 February 2024
Representation for the Applicant:	Self-represented litigant
Solicitor for the Respondent:	Mr Chris West (Associate)
Sparke Helmore Lawyers

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
RESPONDENT SUBMISSIONS
R1	Remittal bundle	Various	13 November 2023
R2	Statement of Facts, Issues and Contentions	22 January 2024	22 January 2024
R3	Transcript of previous Tribunal proceedings.	Various	24 January 2024
APPLICANT SUBMISSIONS
A1	Statement of Facts, Issues and Contentions	27 December 2023	1 January 2024
A2	Bundle of course completion certificates	Various	1 January 2024