De Pinho Neto and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

De Pinho Neto and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3384 (21 September 2021)
Division:GENERAL DIVISION
File Number(s): 2021/4456
Re:Antonio Jose De Pinho Neto
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Mr S Evans, Member
Date:21 September 2021
Place:Sydney

The Tribunal decides that the decision under review, being the decision of a delegate of the Respondent dated 29 June 2021 not to revoke the mandatory cancellation of Mr Neto’s Class BB Subclass 155 Five Year Resident Return visa is set aside. In substitution it is decided that the decision to cancel the visa made on 18 December 2020 is revoked.
......................................[SGD]..................................
Mr S Evans, Member
CATCHWORDS
MIGRATION – visa cancellation under section 501 of the Migration Act 1958 (Cth) – cancellation not revoked under section 501CA – issue: should the cancellation be revoked – Direction No. 90 considered – primary and other considerations considered – Applicant’s criminal history and background considered – Brazilian cultural factors considered –decision under review set aside and substituted.
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SECONDARY MATERIALS
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
21 September 2021
Mr S Evans, Member

The Applicant, Antonio Jose De Pinho Neto (Mr Neto), seeks review of a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) not to revoke the mandatory cancellation of his visa.
INTRODUCTION
Mr Neto is a 45 year old citizen of Brazil who first arrived in Australia in 2008 to teach martial arts. Shortly after arriving he met Suzana Cigoja whom he married. He was granted a partner visa on the basis of his relationship with Ms Cigoja. On 19 June 2017 Mr Neto was granted a Class BB Subclass 155 Five Year Resident Return visa (the visa).
Mr Neto’s visa was cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) on 18 December 2020. On 7 January 2021 Mr Neto made representations seeking revocation of the mandatory cancellation. On 31 January 2021 Mr Neto was released from prison and transferred to immigration detention. On 29 June 2021 a delegate of the Minster decided under subsection 501CA(4) of the Act not revoke the mandatory cancellation of the visa. On 6 July 2021 Mr Neto applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision.
ISSUE TO BE DETERMINED
The issue for the Tribunal to consider is whether to revoke the original decision to cancel the Applicant’s visa pursuant to subsection 501CA(4) of the Act.
The Tribunal may revoke the original decision if the Tribunal is satisfied:
(a)that the Applicant passes the character test as defined by paragraph 501(6)(a) and subsection 501(7) of the Act; or
(b)that there is another reason why the original decision should be revoked: paragraph 501CA(4)(b).
It is agreed by both parties that Mr Neto does not pass the character test as he has a ‘substantial criminal record’ as defined by the Act. Therefore, the only relevant issue is whether there is another reason to revoke the original cancellation decision.
RELEVANT LAW AND MINISTERIAL DIRECTION NO. 90
Section 501CA of the Act applies where the Minister makes a decision under subparagraph 501(3A)(a)(i) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act states that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6) and 501(7).
Paragraph 501(6)(a) of the Act provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which 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.
Paragraph 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions under section 499 of the Act which apply to decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 90).
Paragraph 5.2 of Direction 90 provides principles which I have considered when reviewing the Applicant’s application. It relevantly provides:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-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.
(3) The 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.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) 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 8.4(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.
Part 2 of the Direction identifies the considerations the Tribunal must have regard to when determining whether to exercise the discretion to revoke the mandatory cancellation of a visa. The primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be considered secondary considerations as in certain circumstances other considerations may outweigh primary considerations.
The primary considerations in the Direction are:
(1) protection of the Australian community from criminal or other serious conduct;
(2) family violence committed by the non-citizen;
(3) best interests of minor children in Australia affected by the decision; and
(4) expectations of the Australian Community.
The other considerations set out in Direction 90 which must be taken into account where relevant include but are not limited to:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. When considering the protection of the Australian community, Direction 90 requires decision-makers to have regard to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of Mr Neto’s conduct to date
2011 offence
Mr Neto has appeared in court on three occasions, the first being on 24 August 2011 when he was found guilty in the Local Court of New South Wales at Waverley of Use intimidation/violence to unlawfully influence person for which he was fined $800. The offending related to an incident which occurred on 5 August 2011 during which Mr Neto threated a parking attendant who issued him with a parking infringement notice. The NSW Police records indicate that Mr Neto was on crutches at the time of the offending having broken his leg and it is recorded that Mr Neto made threats to kill the parking attendant when his leg gets better.
2015 offences
On 5 August 2015 Mr Neto was convicted in the Local Court of New South Wales at Downing Centre and sentenced to a 2 year s9 bond for Destroy or damage property (DV), Common assault (DV)-T2, Stalk/intimidate intend fear physical etc harm (domestic)-T2 and Contravene prohibition/restriction in AVO (domestic).
The victim of Mr Neto’s offending was his former partner with whom he had recently separated from. The circumstances and seriousness of the offending is set out by Magistrate Mijovich in his sentencing remarks from 5 August 2015 where he said in part:
Five very serious sequences. [The victim] is not your property. Your demands to know who she is seeing or what she is doing is not for you to know. I am told the relationship finished some one month prior to these events. She has not contacted you on return until wishing to return your mobile. Your behaviour then includes kicking her car, following her around from place to place by motor vehicle. Taking her keys off her where she has called for assistance from members of the public. Extremely fearful for her own life at the time, quite clearly, as to what you were going to do next. You have threatened to harm her. I do not care if it is an emotional time or not, she is entitled to not have any contact with you whatsoever. You were arrested by police. Given an apprehended violence order and then you immediately breach it. There are so many messages from you on the phone. I am not sure the police actually counted them. It is over a period of time.
So my initial view is that if you are not going to comply with an order given by police that to protect the victim, the best place for you would be gaol. Mr Aguirre has convinced me otherwise but the order I am making today is a direct alternative to a period of imprisonment…
2020 offending
In January 2018 Mr Neto commenced a relationship with Ms K. Ms K went overseas for a time and when she returned in September 2019 she and Mr Neto resumed their relationship. On 31 March 2020 an Apprehended Domestic Violence Order was issued in Queensland in which Ms K was identified as the person in need of protection. On 29 June 2020 a copy of the order was served upon Mr Neto.
On 11 July 2020 Mr Neto and Ms K were living together in Mr Neto’s van. As Mr Neto approached Ms K inside the van she was looking at her mobile phone which she then put away. Mr Neto jumped on Ms K and sat on top of her attempting to take her mobile phone from her. When she tried to scream he put his hand over her mouth and nose. Ms K ran away and Mr Neto followed in his van. He subsequently sent Ms K messages threatening to self-harm and two voice messages saying that he was going to kill Ms K’s workmate as he believed the two were romantically involved. The Police Facts report that Mr Neto sent over 140 messages to Ms K in the period following the incident.
Following the incident he was charged with contravene prohibition/restriction in AVO (domestic), stalk/intimidate intend fear physical etc harm (domestic)-T2, common assault (DV)-T2 and use carriage service to menace/harass/offend.
On 1 September 2020 Mr Neto sent over 100 messages to Ms K and threatened to send intimate pictures of he and Ms K to Ms K’s family. Ms K also received multiple voice messages from Mr Neto in which he was aggressive and accused her of being flirtatious with work colleagues. He also threatened to destroy her personal belongings and called her a ‘fucking prostitute’ and threatened to kill both her and the man he thought she was romantically involved with. He also sent explicit photos of Ms K to her which she believed he was going to send to her mother.
The following day Mr Neto was charged with use carriage service to menace/harass/offend, use carriage service to threaten to kill, threaten to distribute intimate image w/o consent (DV) -T2 and intentionally distribute intimate image w/o consent (DV)-T2. He was also charged with contravene prohibition/restriction in AVO (domestic).
In sentencing Mr Neto on 2 December 2020 at the Local Court Waverley, Magistrate Trad observed that the Court had ‘little option other than to impose a custodial sentence’ as the ‘threshold’ has been crossed not only on account of the individual offences but because Mr Neto’s record reflected a pattern of behaviour over a period of time and the very nature of the offences themselves call for a sentence that denounces that conduct on behalf of the community, domestic violence is abhorrent in all its forms.
Mr Neto was sentenced to an aggregate term of imprisonment of 12 months with a non-parole period of five months.
Conclusion as to the nature and seriousness of the conduct
When looked at as a whole, and taking into account the considerations in Direction 90, it is apparent that Mr Neto’s offending must be regarded as serious. His offences include crimes against women who are identified as vulnerable members of the community in the Direction. As observed in the 2020 sentencing remarks, ‘domestic violence is abhorrent in all its forms’.
Magistrate Trad also observed that Mr Neto’s offending reflection a pattern of behaviour over a period of time. That his offences have resulted in a fine, a s9 bond and then a term of imprisonment indicates a trend of increasing seriousness. It is also the case that his most recent offending occurred only a few years after the expiry of the s9 bond which was imposed in 2015.
Having considered the totality of Mr Neto’s offending and the relevant factors in paragraph 8.1.1 of the Direction, I consider his conduct to date weighs against revoking the cancellation of the visa.
The risk to the Australian community
Paragraph 8.1.2(1) of Direction 90 provides that in considering the protection of the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm lessens as the seriousness of the potential harm increases. In assessing the risk posed by the non-citizen to the Australian community, I should consider, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending and evidence of rehabilitation achieved by the time of decision, with weight to be given to the time spent in the community since the non-citizen’s most recent offending.
Mr Neto has expressed remorse for his offending and in his evidence has provided some background and context for his actions.
In relation to the 2011 offence, Mr Neto explained that he had recently returned from Brazil where he had attended his mother’s funeral. Following Mr Neto’s return to Australia his friend returned his car, which Mr Neto was unable to drive owing to having broken his leg whilst in Brazil. Consequently the vehicle was parked on the street outside his residence. A written explanation states in part:
[Mr Neto] started getting fines for parking in front of the unit so he went and spoke to the parking officer. Applicant instructs that he told the officer that he just returned from Brazil after his mother’s funeral, and that he has a broken leg so he cannot move the car. The applicant argued with the officer regarding the parking fines’ and that is when the parking officer called police and the applicant was charged with intimidation.
Applicant advises that calling names or threatening to kill, without actually doing something to that effect was normal day-to-day affairs in Brazilian society.
The Minister submits that Mr Neto’s most recent offending involved extremely serious offence against his then partner while he was subject to an AVO which indicates he has limited respect of the law.
Mr Neto accepts that he breached the AVO in 2020 but contends he understood it had been withdrawn. He has provided a signed application to withdraw a domestic violence application dated 25 June 2020 which is signed by Ms K. Also in evidence is a court order dated 30 June 2020 withdrawing an earlier domestic violence order lodged on 7 April 2020 whilst Mr Neto and Ms K were in Queensland. He has also provided a copy of a residential lease agreement which he and Ms K entered into on 17 July 2020, approximately one week after a second AVO was put in place.
The Minister contends that Mr Neto appears to have limited insight into his offending, a view supported in the sentencing remarks of Magistrate Trad who found this ‘very concerning’.
In considering Mr Neto’s account of his offending, I am mindful that the Tribunal is bound by the decisions of the criminal courts and cannot go behind a conviction. In HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 (HZCP), the Court observed that whilst the Tribunal cannot contradict or go behind a conviction and examine the facts upon which it is based, that is not to be taken as denying the right of an applicant to present to the Tribunal matters pertaining to a conviction provided that they do not contradict the facts upon which a court found in arriving at a conviction.
For his part Mr Neto pleaded guilty to his offending and acknowledges his guilt and responsibility. He contends that he is not prone to acts of violence, and the only charge against him of physical violence was that he briefly placed his hand over Ms K’s mouth.
Whilst he threatened Ms K with distributing the intimate image of them both, he argues that it is relevant that he did not follow through with the threat. He also alleges that Ms K was physically aggressive towards him and has submitted a video and still photographs which appear to show Ms K acting violently towards him including gouging his eyes.

In a written submission to the Court, Ms K writes in part:
The relationship I had with [Mr Neto] was quite complicated. [I]ndeed he suffers from great insecurity, due to his past. He was subjected too many deceptions and misfortunes. He was greatly affected by the death of his mother. These are followed by many problems of daily life, as well as romantic chess. All this has put him in a state of depression and stress, which he unfortunately ignored. This is how after we started our relationship and our feelings appeared strong and sincere. He imagined, that as in his past he was going to lose me. It is after this that his insecurity increased, even as his jealousy. I have no doubt of his sincere feelings for me, they are so strong that that and became an obsession, which resulted in a fear of losing me. This is how his behaviour changed, to try at all costs to keep me close to him. I do not condone his behaviour. However, in the good times, I could see a loving, caring and always ready to be present for my happiness.
Mr Neto claims that he has learnt from his experience and is ashamed of his behaviour. In a written submission dated 28 July 2021 he states in part:
Due to the facts that led to my sentencing of 5 months of detention, and possible deportation to Brazil, I come to express my most sincere apologies.
In all honesty I feel completely sorry for my verbal acts and behavioural attitudes, as those habits relate to the daily life of my country of origin and do not fit the rules and conduct of the Australian culture. I confess that I was very scared how this impacted my life, and have taken it as a great learning experience.
During this period in custody, I have studied the laws and the facts that induced me to commit infractions to the laws of Australia, and also dedicated myself in many psychology courses and sessions to identify the causes. Today I understand the reasons that led me to weaken my educational responsibility towards my partner. As I am an educator, teacher and influencer in the community, working with people of all ages, I felt ashamed of my behaviour. My goals now are always to learn more about the laws and to help other people not make the same mistake, I intend to participate in social activities and set my example to raise awareness and inform the community so that we can increasingly live in a society of peace and love.
So I humbly ask for forgiveness for my actions and I am sure that this lesson taught me to respect the relationship between the people and the laws of Australia.
Thank you for taking the time on reading this letter, and once again, please accept my sincere apologies.
Report of Dr John Roberts
Dr John Roberts was commissioned to assess Mr Neto prior to his appearance at court for the 2020 offending. In preparing his report Dr Roberts interviewed Mr Neto for 45 minutes on 15 November 2020 via teleconsultation.
Dr Roberts’ report is dated 22 November 2020 and he provides background including that Mr Neto had been an inmate at the John Moroney Correctional Centre for two months and 16 days at the time at the time of his interview. Dr Roberts details the circumstances of the charges brought against Mr Neto and Mr Neto’s background. He considers the full facts which would appear to be a reference to the police facts and that Mr Neto breached an AVO. Based on Mr Neto’s ‘past involvement with the Police which includes behaviour of a similar nature occurring in 2011 and also in 2015’, Dr Roberts concludes that Mr Neto’s ‘history would indicate the presence of a chronic condition of a psychiatric nature pre-existing the offences for which Mr De Pinhi [sic] Neto is now facing Court’.
In Summary and Opinion Dr Roberts writes ‘Mr Antonio De Pinhi [sic] Neto is a stalker’. He references a study of stalkers, the five types of stalkers and them having in common ‘delusional disorders’. He writes in part:
In Mr De Pinhi [sic] Neto’s case, this is characterised by a history of inadequacy in regard to interaction with females, leading to stalking behaviour, there is based on his account a strong probability of a degree of delusional behaviour present.
In the context of the threats made by Mr De Pinhi [sic] Neto, I would having regard to the adjectives mild, moderate and severe, consider that Mr De Pinhi [sic] Neto is suffering from a most severe form of stalking, having regard to the threats made by him to his former partner, [Ms K].
In terms of the material contained in the Facts and Full Facts Sheet, I would consider that Mr Antonio De Pinhi [sic] Neto, is suffering from a mental illness which is defined in the Mental Health Act 2007 as a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person …
…
I am of the view that Mr De Pinhi [sic] Neto would in terms of the behaviour that led to his incarceration be a mentally ill person who is suffering from a mental illness and that owing to that illness, there are reasonable grounds to believe that care, treatment or control of the person is necessary to protect others from serious harm.
Evidence and report of Bradley Jones, forensic psychologist
In evidence is a report dated 18 August 2021 compiled by forensic psychologist Bradley Jones following a three-hour interview with Mr Neto. Mr Jones reports that he assessed Mr Neto using a variety of testing instruments including the Beck Anxiety Inventory, Beck Depression Inventory and the Level of Service Inventory – Revised (LSI-R). He concludes that having assessed Mr Neto’s risk of violent recidivism using a combination of actuarial tools and structured professional judgement tools of risk assessment to provide a comprehensive recidivism risk appraisal it is his opinion Mr Neto poses a low risk for committing general offences relative to other offenders and presents a low risk of engaging in spousal assault or violent behaviour.
Mr Jones considers that Mr Neto is a relatively well functioning individual with no major personality disturbances.
In compiling his report, Mr Jones considered the report of Dr Roberts referenced above and observes that Dr Roberts’s view that Mr Neto ‘is a stalker’ is not a psychiatric or psychological disorder and is not supported by suitable analysis or evidence. He also observes that Dr Roberts ‘proffers a non-descript and broad-based opinion Mr De Pinho Neto was suffering a mental illness’ but does not record information to support such a diagnosis. He concludes that Dr Roberts’s report ‘lacks the evidential and scientific basis for the opinions provided’ and cannot be relied upon.
Mr Jones was questioned about his report and conclusions extensively during the hearing. He told the Tribunal that in terms of treatment for Mr Neto given his criminal history, he would recommend anger management, emotion control strategies and treatment of any underlying anxiety or depressive condition or symptoms that might exist.
Mr Jones considered the psychological treatment that Mr Neto was receiving prior to incarceration and subsequent. He reports that Mr Neto reflected on his past and had developed an understanding of how inappropriate and ‘wrong’ his behaviour was. Mr Neto has also benefitted from undertaking courses specifically to address domestic violence which have enabled him to understand that his behaviour was controlling and his thinking patterns that sought to blame others for his actions was inappropriate.
He writes that ‘Mr De Pinho Neto candidly admitted his thinking was patriarchal in style’ and that following his incarceration and treatment he ‘has been able to self-reflect upon his behaviour and thinking patterns’.
It was put to the Tribunal on behalf of Mr Neto that his offending should be considered in the context of his formative years spent in Brazil where there is a culture of ‘machismo’ which is ‘the main cause of domestic violence in Brazil’. It was contended that some of his criminal behaviour might be considered less serious if it had occurred in Brazil. Documents including a Wikipedia entry were submitted by his representative in support of this contention. Amongst other things, the documents indicate Brazil has been slower to adopt measures to protect women from violence by men than some other countries.
In relation to cultural influences, Mr Jones writes that in Brazil ‘[t]he exacerbation of male identity is valued through aggressiveness, risky behaviour, and domination over women’. He conceded at the hearing that he does not have expertise in Brazil or Brazilian culture, but maintained that Mr Neto’s offending appears to have triggered by events, situations or conflicts after which he engages in aggressive and violent behaviour. Mr Jones states that he did not identify any ‘indicators of state or trait anger’, nor mental illness or condition. He suggests reviewing Mr Neto’s internal belief system and treatment which is focused on modifying his ‘culturally based thought patterns’.
Prison and detention
Before the Tribunal are records of Mr Neto’s time in custody, prison and detention. It is recorded that upon entering prison on 9 September 2020 he met with a chaplain whilst in quarantine. On 18 September 2020 it is recorded that Mr Neto was ‘emotional and anxious’ and referred to a psychologist for further support.
A NSW Department of Corrective Services report dated 21 September 2020 records that Mr Neto presented as ‘polite, cooperative, attentive and receptive’. He is recorded as being ‘articulate and logical’. The author notes that he reported suicidal ideation when he lost his mother and relationship at the same time, but denied any intention to self-harm. The author reports:
[Mr Neto] stated that he feels remorseful but misunderstood for being in custody. Inmate states his jealousy and Paranoia thoughts and insecurity about his relationship is his biggest concern. He mentioned "Be at prison is eye opening and he learnt a lot".
…
Inmate appeared to be experiencing symptoms of anxiety and grief. There were no signs of suicidal and/or self-harm ideation, intentions or plans at this time. His protective factors are his family and his strong faith and beliefs…
A follow-up report dated 10 November 2020 records that Mr Neto presented as ‘generally anxious and engaged/forthcoming…He exhibited and reported no overt symptoms of psychosis or formal though disorder’.
On 19 November 2020 an officer observes that Mr Neto was prepared to learn through the process. In detailing his offending, she notes that Mr Neto acknowledged that his behaviour was wrong and claims he was seeing a psychologist to address jealously issues. She writes that he said he ‘[j]ust made threats to get [the victim] to respond’, which she concludes was minimising behaviour.
On 23 November 2020 a note from community corrections details a phone call with Suzana Cigoia. She writes:
DESCRIBE
Suzana confirmed she and the offender use to be married, known him since 2008. No issues in their relationship such as DV, intimidation, anger, AOD. She did not know too many details about the offender and the victims relationship stating the victim didn't like them talking, so they lost contact due to the victim not approving the relationship as she and the offender still were close. She did advise however that she knew about the charges and court etc.
Suzana was able to verify all areas of the IAF and added she believes the offender would be at risk of a decline in mental health whenever he is sitting still, unemployed, or not able to engage in community activities/sports.
Suzana confirmed her partner has offered the offender employment in the labour sector and can be flexible with community work.
As to the risk that Mr Neto may reoffend, in a sentencing assessment report dated 26 November 2020 Community Corrections Officer Tara Schmidt writes that Mr Neto ‘has been assessed at a Medium-Low risk of reoffending according to the Level of Service Inventory – Revised (LSI-R) … [He is] assessed as suitable to undertake community service work … [should] a community service work condition [be] made’.
Shortly after Mr Neto was sentenced and imprisoned on 4 December 2020 he met with a psychologist who reported he presented as anxious but forthcoming and coherent. Upon entering prison, the psychologist notes the same.
Following a mental health consultation in July 2021, the psychologist records that Mr Neto was ‘motivated to show that he has learned from his past behaviour’ and that he ‘describes strengthening his awareness and learning healthy coping strategies of how to manage his triggers, emotions and thoughts effectively’.
In total, the evidence before the Tribunal indicates that Mr Neto has been cooperative and compliant whilst in prison and detention and has focused on measures to reduce the risk he will reoffend.
Treatment
Mr Neto has provided evidence of completing courses in stress management, anger management, domestic violence, healthy relationships, depression management, problem solving strategies and of having completed the six-session Remand Domestic Violence Program.
He gave evidence that his 2020 offending served as a turning point for him, starting a period of self-reflection and self-improvement. Completing the courses on domestic violence helped him understand that ‘words’ can also be violence. Up until this time he did not appreciate that verbal confrontations were acts of violence. He now understands that the words he uses have consequences and affect victims psychologically and sometimes can do so for many years. Asked how he would integrate what he claims to have learnt since the offending with the Brazilian culture of machismo he claims influenced his offending, Mr Neto told the Tribunal that that he has lived for many years outside of Brazil and it was important to overcome aspects of Brazilian culture. He says that he now understands ‘the weight of the words’.
Prior to being incarcerated Mr Neto saw psychologist Christopher Alexander on three occasions beginning in July 2020. He attended one of the sessions, on 27 July, with Ms K. A letter from Mr Alexander states that Mr Neto was seeking to address anxiety and low mood due to relationship dysfunction. He observed that Mr Neto was ‘highly insecure’ in his relationship and noted that Mr Neto’s childhood was ‘impacted by domestic violence’ which contributed to him to having low self-worth, perceptions of inadequacy, and interpersonal-threat sensitivity.
Consideration: Risk to the Australian community
Should Mr Neto reoffend, it would result in psychological and physical harm to vulnerable members of the community and use of police and court resources.
The Minister submits that there is a medium risk that Mr Neto will reoffend. It argued that his offending occurred relatively recently and that Mr Neto has a long history of similar violent and threatening offending dating back to 2011. The Minister concedes that Mr Neto has been receiving regular psychological treatment, but argues that treatment should be afforded limited weight given the report of Dr Roberts who recommended that ‘care, treatment or control of the person is necessary to protect others from serious harm’ and that ‘long term supervision is required’.
It is also argued that Mr Neto has a track record of minimising his offending which is an indication he lacks insight into the seriousness of his offending and casts doubt on his remorse.
In considering the risk that Mr Neto may reoffend, I prefer Mr Jones’s assessment to that of Dr Roberts. Mr Jones had the benefit of significantly more time with Mr Neto and his report was written after Mr Neto had completed his term of imprisonment. Mr Jones also sets out clearly and methodically the evidence on which he based his conclusions, which are generally consistent with the observations of the mental health professionals who saw Mr Neto from September 2020.
Having considered the evidence referred to above I have concluded that Mr Neto is unlikely to engage in further criminal or other serious conduct. My reasons for reaching this conclusion are:
·Mr Neto has been assessed by Mr Jones as being at low risk of reoffending;
·Mr Jones’ opinion that Mr Neto does not suffer from a mental illness is consistent with the psychological reports and observations from his time in custody and detention;
·Mr Neto has demonstrated a desire to improve his coping mechanisms and acknowledged it is his responsibility to find an acceptable way of managing stressful situations and has sought and continues to receive psychological treatment to realise this;
·Mr Neto had not been imprisoned previously and it is apparent that this has been a salutary experience for him;
·Mr Neto has demonstrated understanding of the circumstances, cognitive processes and extraneous influences which have led to his offending;
·Mr Neto claims to not consume drugs or alcohol and the evidence supports this;
·Mr Neto has a strong network of support, most notably his ex-wife Suzana Cigoia;
·Mr Neto has an offer of employment which will enable him to begin to rebuild his life; and
·Records indicate that Mr Neto has been compliant and cooperative during his time in custody and detention.
In explaining his offending, Mr Neto has cast doubt on the genuineness of his remorse, most notably by identifying the influence of cultural factors and differentiating between physical abuse and other forms of violence. I am satisfied that Mr Neto now appreciates the impact of his behaviour on others and is determined to break with what he contends are the cultural norms of his upbringing.
A distinction ought to be drawn between victim blaming and seeking to absolve oneself of responsibility on the one hand, and seeking to explain offending and demonstrate understanding and insight on the other. I consider that in seeking to do the latter, Mr Neto’s unsophisticated language has at times contributed to a perception that he does not understand, appreciate or acknowledge the gravity of his offending. I do not accept this to be the case.
I consider that this primary consideration weighs against revocation of the cancellation decision, but is afforded less weight for the reasons outlined above.
PRIMARY CONSIDERATION 2 - FAMILY VIOLENCE
The second primary consideration is whether the conduct engaged in by Mr Neto constituted family violence. Direction 90 subparagraph 8.2(3)(a) to 8.2(3)(d) provides that in considering the seriousness of the family violence engaged in by the noncitizen, factors such as the frequency of the conduct, any trend of increasing seriousness, the cumulative effect of repeated acts of family violence, rehabilitation achieved and whether the noncitizen has reoffended since being formally warned are relevant factors.
Family violence is defined in Direction 90 to include 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. As Mr Neto’s most serious offending relates to family violence, most of the issues have been addressed in primary consideration 1.
As set out above Mr Neto’s criminal history consists of numerous domestic violence offences against two of his former partners. Domestic violence is a very serious concern to the Australian community and there can be no doubt that his actions caused the victims to be fearful of him.
I am to consider if there is any trend of increasing seriousness in the family violence. In this regard Mr Neto’s behaviour towards his victims was similar but I consider that the imposition of a term of imprisonment indicates that the 2020 offending was more serious than that which occurred in 2015.
Mr Neto’s remorse for his offending and the extent to which he understands the impact of his behaviour on the victims is set out above. I note, however, that it is apparent he has struggled to appreciate how his non-physical aggression impacted his victims, a point he conceded during the hearing in the context of his efforts at rehabilitation.

I am satisfied that Mr Neto’s conduct involved family violence including physical violence and threats of violence, as set out in the Direction, and this primary consideration weighs against revoking the mandatory cancellation.
PRIMARY CONSIDERATION 3 - BEST INTERESTS MINOR CHILDREN
Mr Neto does not have any minor children and does not contend that any minor children will be affected by the decision. As such this primary consideration does not carry any weight.
PRIMARY CONSIDERATION 4 - EXPECTATIONS OF THE AUSTRLAIAN COMMUNITY
Paragraph 8.4 of the Direction requires me to consider the expectations of the Australian community. Subparagraph 8.4(1) relevantly states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR) the Full Federal Court decided by majority that it is not for the decision-maker to assess what the expectations of the Australian community are for the purpose of applying this consideration. That is, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the expectations of the community that decision makers are required to consider are those set out at paragraph 11.3 of Direction 65, the direction considered in that case which is analogous to paragraph 8.4 of Direction 90.
The Direction lists specific conduct which the Australian community as a whole expects would raise serious character concerns and an expectation that the person would not hold an Australian visa. Having regard to the provisions of Direction 90 and Mr Neto’s criminal offending which include crimes against women, the Australian community would expect that Mr Neto should not continue to hold a visa.
Observing the norm and the principles outlined in in paragraph 5.2 of Direction 90, I am satisfied that the expectations of the Australian community would normally weigh against revoking the visa cancellation on account of his criminal conduct.
OTHER CONSIDERATIONS
I now turn to considering the other relevant considerations set out in the Direction.
Extent of Impediments if removed
I am required to consider the extent of any impediments that Mr Neto may face if removed from Australia to Brazil in establishing himself and maintaining basic living standards.
Mr Neto does not claim he would experience any language or cultural barriers in Brazil. However he has concerns about the returning to Brazil on account of the lack of medical and employment opportunities he claims he would encounter there.
He submits that access to ongoing psychological support would be difficult owing to the relatively high cost of such treatment in Brazil.
Mr Neto’s father, two brothers and sister continue to reside in Brazil though Mr Neto has had limited contact with his family since the passing of his mother. He has not returned to Brazil since returning for her funeral in 2011. Whilst Mr Neto has employment secured here should he be released into the community, he claims that finding employment in Brazil would be difficult, and notes that his highest level of education was at high school.
At 45 years of age Mr Neto is physically fit. I accept that he would be expected to experience emotional isolation having spent so much time from Brazil. I also accept that should he return to Brazil he would be taken away from his support network and this may have a detrimental impact on his mental health and the work he has undertaken to improve his coping skills.
In consideration of these factors, I find the extent of the impediments Mr Neto would be expected to face if returned to Brazil weighs heavily in favour of revoking the mandatory cancellation.
Links to the Australian community
I am required to consider the Applicant’s strength, nature and duration of ties to Australia. Mr Neto arrived in Australia age 32 and is now 45 years of age. Given the period of time in Australia he is entitled to some weight under paragraph 9.4.1 of the Direction.
Mr Neto has worked whilst in Australia, though he appears to have been without work on account of the COVID-19 pandemic in early 2020. He has provided evidence which demonstrates his positive contributions to the community as a coach, martial arts teacher and voluntary activities focused on the Brazilian community. The extent of his ties to the community are demonstrated by the character references which have been provided in support of his application and court appearances.
Suzana Cigoja, writes in a statutory declaration dated 11 January 2021 that she and Mr Neto were married until separating ‘a few years ago’ and have remained friends since. She states that Mr Neto has been a teacher of martial artis for ‘decades’ and takes pride and joy in teaching others, particularly children. She believes that he has a natural gift for teaching and takes an understanding approach with his students. She writes in part:
In the many years that I have known [Mr Neto], he has always been respectful, and kind towards me. I have always known him to be someone who always has a smile on his face, is friendly to everyone and has a great sense of humour and lives a very fit and healthy lifestyle… He has never been violent or abusive towards me in any way, so the recent events and charges have come as quite a surprise to me and seems [sic] very out of character to me.
Infact i have agreed & made arrangements with the parole board to allow him to stay with me, my partner and my 5 month old baby upon his release as i do not have any concerns regarding his behaviour or character. And we are happy to support him in any way we can to get support from a psychologist, etc if/when needed. My partner and i have spoken to him daily since he has been incarcerated and continue to have a close friendship with him. We had also spoken with him and made plans for him to help my partner and i get fit with some at home training upon his release.
Ms Cigoja states that Mr Neto is well known and well liked in their community and people frequently stop to say hello and talk with him when he is out. She is committed to Mr Neto and writes:
I have spent thousands of dollars of my own money on lawyers, etc for [Mr Neto] in his case, this is how much i believe in him and that he is a good person who would do everything he could to right his wrongs. I have no doubt that upon his release [Mr Neto] would want to continue to live his life on the right path and do no further wrong by others.
Liam Costello writes in a reference dated 22 April 2021 that he has known Mr Neto since 2016 through his work as a coach. He considers Mr Neto is a ‘calm individual that has a desire to see others succeed’ and that he has had a positive impact on many people’s lives.
In an undated reference Noel Sertdemir writes that Mr Neto was a great teacher and friend who is compassionate and honest.
Thiago Luiz Moraes de Oliveira writes in a statutory declaration dated 1 March 2021 that his first memory of Mr Neto was around 2008 when he met him whilst he was performing at a Brazilian Day Festival. He reports that Mr Neto is very well known in the Brazilian community as a talented artist.
Kristijan Krivosic met Mr Neto through his local gym where he was the head martial arts coach. He writes that Mr Neto would often come to the gym and train people in his own time without expectation of payment. He has never seen Mr Neto ‘angry at anyone nor he ever showed anything but respect, patience and a very positive, healthy attitude’. He writes that he believes Mr Neto has learnt from his recent experiences and is determined to ‘improve himself as a person’.
In a reference dated 16 February 2021 Alex Rodriques writes that he and Mr Neto came from the same city in Brazil and reconnected in Australia in 2009. He writes that he has known Mr Neto to be a considerate person dedicated to his students and believes him to be ‘of good character and qualities’.
Leticia G Teixeira writes in a reference dated 19 March 2021 that Mr Neto and she met when Mr Neto joined the Brazilian dance group she danced with. She believes he is a talented and friendly individual who she has never seen be angry at anyone. Ms Teixeira believes Mr Neto ‘is a great contributor to Australia’.
Claudio Cartagena has provided a recommendation dated 31 December 2020. He has known Mr Neto for several years and observes him to be a good teacher who has an intuitive way with his students. He notes also that Mr Neto generously volunteers to help others.
In a reference dated 23 February 2021 Marcelo Aveline writes that he has known Mr Neto since 2008 having met him through mutual friends. He believes he is ‘worth given [sic] a second chance’ and an asset to the community.
It is apparent that Mr Neto has made a substantial contribution to the community since arriving in Australia. He has formed meaningful long-standing friendships and is well regarded on account of his coaching and voluntary contributions. The evidence supports a conclusion that he has a very strong relationship with Ms Cigoja and cancellation of his visa would be detrimental to her.
On balance, I give this consideration significant weight in favour of revoking the cancellation decision.
CONCLUSION
Having considered the Applicant’s circumstances as they relate to the considerations outlined in Direction 90, I am now required to weigh up these considerations.
The protection of the Australian community weighs against revocation of the mandatory cancellation, particularly given the nature of Mr Neto’s offending. However, the head sentence of 12 months imprisonment is at the lower end of the scale and there is little indication that his offending has caused lasting harm, particularly given the letter of support he received from Ms K subsequent to the offending. I afford this consideration less weight given the strong indications of reform and rehabilitation. The primary consideration of family violence also weighs against revocation but is afforded less weight that it might otherwise be for similar reasons. The expectations of the Australian community also weigh against revocation.
Should he be removed, Mr Neto would be expected to face considerable difficulty re-establishing himself in Brazil and continuing his mental health treatment. I afford medium weight to this consideration in favour of revoking the cancellation decision.
Mr Neto has made a significant contribution to the community and the evidence indicates he is well regarded and valued by those who know him. I find that his links to the Australian community are significant enough to afford them considerable weight in favour of revoking the cancellation decision.
Primary considerations should generally be given greater weight than secondary considerations. In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23], Colvin J emphasised that the other considerations are not necessarily secondary or subordinate considerations. His Honour stated in part:
… Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including nonrefoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
This is a very finely balanced decision, which I find weighs in favour of revoking the mandatory cancellation of Mr Neto’s visa.
DECISION
For the reasons outlined above, the Tribunal decides that the decision under review, being the decision of a delegate of the Minister dated 29 June 2021 not to revoke the mandatory cancellation of Mr Neto’s Class BB Subclass 155 Five Year Resident Return visa is set aside. In substitution it is decided that the decision to cancel the visa made on 18 December 2020 is revoked.

I certify that the preceding 111 (one-hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

................................[SGD]........................................
Associate
Dated: 21 September 2021

Date(s) of hearing: 30 and 31 August 2021

Advocate for the Applicant: Mr M Chand, Shiva's Migration Services

Solicitor for the Respondent: Ms S Balakrishnan, Australian Government Solicitor

[2021] AATA 3384

21 September 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Date(s) of hearing:	30 and 31 August 2021
Advocate for the Applicant:	Mr M Chand, Shiva's Migration Services
Solicitor for the Respondent:	Ms S Balakrishnan, Australian Government Solicitor