DLZZ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 3922

DLZZ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3922 (28 November 2023)
Division:GENERAL DIVISION
File Number(s): 2023/6640
Re:DLZZ
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:28 November 2023
Place:Perth

The decision of the delegate of the Minister dated 4 September 2023 to exercise the discretion under s 501(1) of the Act to refuse to grant the Applicant a Bridging E (Class WE) visa is set aside and substituted with a decision not to refuse the grant of the visa under s 501(1) of the Act.
.........[Sgd].............................................
Deputy President Boyle
CATCHWORDS
MIGRATION – s 501(1) of the Migration Act 1958 – decision of a delegate of the Minister to refuse to grant the Applicant a Bridging E (Class WE) visa – whether the Applicant passes the character test under s 501(6)(c) – Ministerial Direction 99 – whether Tribunal should exercise discretion in s 501(1) to refuse to grant the Applicant the visa – Applicant covered by previous protection finding – Applicant granted a Bridging (Removal Pending) (subclass 070) visa – already released into the community – effect of High Court decision in NZYQ and grant of removal pending visa on considerations under Direction 99 considered - decision set aside and substituted.
LEGISLATION
Migration Act 1958 (Cth) ss 3A, 43(1), 43(1)(c)(ii), 46A(1), 76B, 76C, 76D, 76DA, 189(1), 196(1), 499(1), 499(2A), 500(1)(b), 501, 501(1), 501(3A), 501(6), 501(7), 501(7)(c), 501F
CASES
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
DLZZ and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 7
Fetelika and Minister for Immigration, Citizenship and Multicultural Affairs ([2023] AATA 2606
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 66
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA Trans 154
NZPC and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 4443
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Price v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 171
Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90
XRGY and Minister for Immigration, Citizenship, and Multicultural Affairs [2023] AATA 755
SECONDARY MATERIALS
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023) paras 5.1, 5.2, 6, 7, 7(2), 8, 8.1, 8.1.1, 8.1.1(1)(a)(i), 8.1.1(1)(a)(iii), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(g), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.3, 8.5, 8.5(1), 8.5(2), 8.5(2)(a), 8.5(4), 9, 9.1
REASONS FOR DECISION
28 November 2023
Deputy President Boyle
THE APPLICATION

The Applicant seeks review of the decision of a delegate of the Respondent (Minister) dated 4 September 2023[1] to exercise the discretion under s 501(1) of the Migration Act 1958 (Cth) (Act) to refuse to grant the Applicant a Bridging E (Class WE) visa.
[1] R1/13.
This application is made pursuant to s 500(1)(b) of the Act which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister made under s 501 of the Act.
BACKGROUND
The Applicant is a 27-year-old citizen of Iran who first arrived in Australia as an illegal maritime arrival on 14 July 2013 (then aged 17).
On 23 July 2018 the Applicant was granted a Temporary Protection (Class XD) (Subclass 785) visa (TPV) as a dependent child on his mother’s application.[2]
[2] R1/75.
On 1 July 2018, the Applicant committed the offence assault by kicking for which he was sentenced on 1 April 2020.[3]
[3] R1/33.
On 25 December 2018, the Applicant committed the offences of kidnapping, intentionally causing injury and assault with a weapon for which he was convicted in the Melbourne County Court on 24 July 2019 and sentenced to a head sentence of 12 months imprisonment for the kidnapping offence, nine months (three months concurrent) for the intentionally causing injury offence and three months (one month concurrent) for the assault with weapon offence.[4]
[4] R1/33.
On 26 December 2018, the Applicant was arrested and imprisoned on remand. He was in prison or immigration detention up to the time of his release on 20 November 2023 (see [19] below).
On 22 March 2019, the Applicant was notified of an intention to consider the cancellation of his TPV pursuant to s 501 of the Act.
On 23 October 2019, the Applicant was given notice that his TPV visa was mandatorily cancelled pursuant to s 501(3A) of the Act. On 16 November 2019, the Applicant made representations seeking revocation of the cancellation decision.
On 31 March 2020, the Applicant was denied parole.[5]
[5] R1/74.
On 21 August 2020, the Applicant was taken from prison into immigration detention.
On 18 October 2022, a delegate of the Minister made a decision not revoke the mandatory cancellation of the applicant’s TPV visa.[6] The Applicant sought review of that decision in the Tribunal and, on 9 January 2023, a differently constituted Tribunal made a decision setting aside the cancellation.[7]
[6] R1/341.
[7] DLZZ and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 7 (DLZZ1).
The Applicant, however, was not released from immigration detention because the TPV would have ceased, in the event it had not been cancelled, on 24 July 2021, being three years after the grant of the TPV.
On 25 May 2023, the Applicant was notified that the Minister had lifted the bar under s 46A(1) of the Act which allowed him to make a further visa application.
On 5 June 2023, the Applicant applied for a Resolution of Status (subclass 851) visa (RoS visa) and associated bridging visa (the visa the subject of these proceedings).[8]
[8] R1/172.
On 20 July 2023, the Applicant was notified of the intention to consider the refusal of the visa under s 501(1) of the Act.[9]
[9] R1/76.
On 4 September 2023, the delegate of the Minister refused to grant the Applicant the visa under s 501(1) of the Act (see [1] above). As a result of that refusal, by operation of s 501F of the Act, the RoS visa application is also taken to have been refused (see [15] above)
On 8 September 2023, the Applicant applied to the Tribunal for review of the delegate’s decision.
On 20 November 2023, the Applicant was granted a Bridging (Removal Pending) (subclass 070) visa and released from immigration detention. A copy of the Removal Pending visa was provided to the Tribunal by the Minister on 21 November 2023, following a request by the Tribunal. The Removal Pending visa is subject to the conditions in Attachment 2 to that visa. Attachment 2 to the Removal Pending visa is attached as Annexure 1 to these reasons for decision. The covering letter to the Applicant by which the Removal Pending visa was sent advised that the Applicant could make representations to the Department as to why his visa should not be subject to conditions 8620 and 8621.
THE ISSUES FOR DETERMINATION
The substantive issues for the Tribunal to determine are whether the Applicant passes the character test as defined in s 501(6) of the Act, and if he does not, whether the Tribunal should exercise the discretion in s 501(1) to refuse to grant the visa.
THE HEARING AND THE EVIDENCE
The application was heard on Friday 10 and Monday 13 November 2023. The Applicant was unrepresented, and the Minister was represented by Ms E Tattersall.
The Applicant, his mother and Ms Delphine Bostock, forensic psychologist, gave evidence at the hearing. The Applicant and his mother gave their evidence through an interpreter. The following documents were admitted into evidence:
(a)Applicant's Submission filed 20 October and attachments 1-13 filed 19 October (A1);
(b)Respondent’s section 501 G Documents filed 22 September 2022 (R1);
(c)Respondent’s original Tender Bundle received 6 October 2023 (R2); and
(d)Respondent’s additional Tender Bundle received 2 November 2023 (R3).
On 8 November 2023, the High Court made ex tempore orders and a declaration in the matter of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs.[10]

The Court has not handed down reasons for the decision. The effect of the ex tempore orders and the declaration made by the Court was that ss 189(1) and 196(1) of the Act, being subject to s 3A of the Act, were beyond the legislative power of the Commonwealth insofar as they applied to NZYQ. The Court made a declaration that, by reason of there having been, and continuing to be, no real prospect of the removal of NZYQ from Australia becoming practicable in the reasonably foreseeable future:
(a)NZYQ’s detention was unlawful as at 30 May 2023; and
(b)NZYQ’s continued detention is unlawful and has been since 30 May 2023.
[10] [2023] HCA Trans 154.
As the parties in this matter had prepared their Statements of Facts, Issues and Contentions and submissions prior to the High Court making the ex tempore orders and declaration on 8 November 2023, I made the following directions at the conclusion of the hearing on 13 November 2023:
1 On or before 17 November 2023, the Minister to file and serve on the Applicant submissions relating to the legal consequences of the decision to be made in this application in light of the High Court decision in NZYQ; and
2On or before 23 November 2023, the Applicant to file any submissions in response to the Minister's submissions.
On 17 November 2023 the Minister requested an extension of time to make the submissions on the effect of NZYQ to 20 November 2023. I granted that extension. On 20 November 2023 the Tribunal received the Minister’s submissions. The Applicant provided written submissions in reply to the Minister’s submissions on 24 November 2023.
LEGISLATIVE FRAMEWORK
Section 501(1) of the Act is as follows:
The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
(Original emphasis.)
Section 501(6) of the Act relevantly provides:
For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); ...
(Original emphasis.)
A “substantial criminal record” is, relevantly, defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
...
(Original emphasis.)
Section 499(1) of the Act provides that:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Section 499(2A) of the Act provides that “A person or body must comply with a direction under subsection (1).”
Direction 99
On 23 January 2023, the relevant Minister for the purposes of s 499 of the Act, made a direction titled “Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 99). The commencement date for operation of Direction 99 was 3 March 2023. Upon its commencement, Direction 99 revoked the operation of “Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 90).
Paragraph 5.1 sets out the objectives of Direction 99. Relevantly, para 5.1 provides:
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa.
...
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
(4) The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 of Direction 99 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to refuse to grant a visa under s 501(1) of the Act. These principles are as follows:
(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 measureable (sic) 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.
(5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally 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. 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) (sic) (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 measureable (sic) risk of causing physical harm to the Australian community.
Paragraph 6 of Direction 99 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 99 (where such considerations are relevant) in order to determine whether the visa should be refused.
Guidance in relation to how the relevant considerations are to be taken into account can be found in para 7 of Direction 99 which provides that:
1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Paragraph 8 of Direction 99 is as follows:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(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;
(5) expectations of the Australian community.
Paragraph 9 of Direction 99 is as follows:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) Legal consequence of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests
CONSIDERATION
Does the Applicant pass the character test?
Failure of the character test arises as a matter of law.[11] The character test is defined in s 501(6) of the Act (see [27] above). Under s 501(6)(a) of the Act, a person does not pass the character test if the person has “a substantial criminal record”. Section 501(7)(c) of the Act (see [28] above) provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more...”. The Applicant has been sentenced to a term of imprisonment of more than 12 months and he therefore has a substantial criminal record (see [6] above).
[11] Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 66.
The Applicant’s submissions dated 20 October 2023[12] at para 20, conceded that the Applicant does not pass the character test. I find, in any event, that the Applicant does not pass the character test under s 501(6) of the Act.
Should the Tribunal refuse to grant the visa under s 501(1) of the Act?
[12] A1: prepared by the Applicant’s former lawyers.
NZYQ and the grant of the Removal Pending visa
The considerations in Direction 99 are premised on the decision to be made by the Tribunal determining “whether non-citizens who are of character concern are allowed to enter and/or remain in Australia” (Para 5.2; see [33] above). The decision in NZYQ (see [23] above) and the subsequent grant of visas to non-citizens coming within the apparent scope of that decision[13] change the fundamental assumption upon which Direction 99 operates. In the present case, as things presently stand, the Applicant will stay in the Australian community irrespective of the decision that I make. The only difference that the decision that I make will have will be as to the conditions under which the Applicant remains in the Australian community. That fact renders the majority the considerations under Direction 99, if not irrelevant, certainly of a different complexion and/or importance.
[13] At the time of writing this decision the High Court has not handed down its reasons.

The conclusion of the Minister’s submissions of 20 November 2023 (see [25] above) was:
… if the Tribunal sets aside the refusal decision and substitutes a decision not to refuse the Applicant a Bridging E (Class WE) visa, the Applicant will remain in the community on a Bridging (Removal Pending) (subclass 070) visa until the time of any decision of the Minister upon remittal on whether to grant the Applicant a Bridging E (Class WE) visa. If on remittal the Minister grants the Applicant a visa, his visa status will change to a Bridging E (Class WE) visa. The grant of such a visa will have practical consequences for the Applicant to the extent there are differences between the conditions able (or required) to be imposed on a Bridging E (Class WE) visa, as compared to a Bridging (Removal Pending) (subclass 070) visa. In the event the Tribunal affirms the refusal decision (or a refusal decision is made by the Minister upon remittal), the Applicant will remain in the community on a Bridging (Removal Pending) (subclass 070) visa and his visa status will not change as a result of the Tribunal’s decision.
While the above is partially correct, insofar as it is correct, it is a statement of the obvious. It is of little assistance in determining how Direction 99 is to apply in circumstances where, irrespective of the decision that I make, the Applicant will be in the community. The Minister’s submissions concede that the only potential difference that a decision will make is as to the type of visa under which the Applicant will be in the community and that “there are differences between the conditions” of the two visas. The Minister does not identify what those differences are. The conditions of the Pending Removal visa are set out in Attachment 2 to the visa, which is reproduced as Annexure 1 to these reasons for decision.
The Applicant’s submissions in reply received on 24 November 2023 contended that the conditions of the Bridging E (Class WE) would be “less onerous” than those of the Pending Removal visa. The Applicant also submitted that, if the refusal to grant the visa was set aside, “the Applicant’s Resolution of Status visa would continue to process in the background, and under the assumption that it is granted, the Applicant would eventually acquire the status of a permanent resident in Australia and the privileges that stem from this”.
The reason that I describe the Minister’s submissions as being only partially correct is that they refer (twice) to the Minister making a further decision whether to grant the Bridging E (Class WE) visa “upon remittal”. That is incorrect. In the case of a review of a decision to exercise the discretion under s 501(1) not to grant a visa, there are two decisions that the Tribunal can appropriately make. They are:
(1) to affirm the reviewable decision under s 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act); or
(2) to set the reviewable decision aside and substitute a decision not to refuse to grant the visa under s 501(1) of the Act under s 43(1)(c)(i) of the AAT Act .[14]
[14] See eg NZPC and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 4443; XRGY and Minister for Immigration, Citizenship, and Multicultural Affairs [2023] AATA 755.
There may be administrative or procedural consequences that ensue as a result of a substitute decision to the effect set out in [44(2)] above, however, they are not matters in relation to which the Tribunal has any power to make a decision.[15] The decision being reviewed by the Tribunal is a decision to exercise the discretion under s 501(1) not to grant the visa. If the Tribunal’s conclusion is that the correct or preferrable decision is that the discretion under s 501(1) not to grant the visa should not be exercised, then the appropriate decision under s 43(1) of the AAT Act is to set aside the reviewable decision and substitute a decision not to refuse to grant the visa under s 501(1). It is inappropriate to remit the matter for reconsideration, with or without a direction or recommendation, when the result is known; namely, not to refuse to grant the visa under s 501(1). Further, it is questionable whether the power to remit a matter under s 43(1)(c)(ii) of the AAT Act would include the power to remit a matter with a direction as to what the decision has to be. That would not be “remitting the matter for reconsideration” as there would be no “reconsideration”, merely the implementation of the Tribunal’s direction.
[15] Section 43(1) of the AAT Act.
Notwithstanding that the considerations under Direction 99 are now of questionable, or at least altered, application, I am still bound to take into account the considerations identified in sections 8 and 9 of Direction 99.[16] I do so in light of NZYQ and the fact that the Applicant now holds the Removal Pending visa and has been released into the community.
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)
[16] Direction 99 para 6.
Paragraph 8.1 of Direction 99 provides that, when decision-makers are considering the protection of the Australian community, they:
(1) ... should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen's conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (para 8.1.1)
Paragraph 8.1.1 of Direction 99 relevantly provides:
1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, 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)...
(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;
...
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;
...
The Applicant’s submissions were to the following effect relevant to this consideration:[17]
(a)In DLZZ1, the Tribunal found that the Applicant engaged in conduct “at the lower end of the spectrum of very serious conduct.”
(b)The Applicant denies that, other than for the offences of which he has been convicted, the Applicant has been violent towards anyone.
(c)Insofar as the Applicant has been counselled for breach of the Code of Behaviour by an Illegal Maritime Arrival, the incident for which he was counselled in June 2015 was driving an unregistered vehicle and without an appropriate supervisor whilst on his L driving permit. That is at the low end of seriousness.
(d)The offences of which the Applicant has been convicted arose out of two separate incidents six months apart, both of which were driven by his alcohol and drug use at the time and in the context of the breakdown of his first intimate relationship.
[17] A1.
The Minister’s amended Statement of Facts, Issues and Contentions dated 2 November 2023 (Minister’s SFIC) made submissions to the following effect relevant to this consideration:
(a)The Applicant’s offences of assault by kicking, assault with weapon and intentionally cause injury involved violence and therefore must be considered very serious (para 8.1.1(1)(a) of Direction 99).
(b)The intentionally cause injury offence involved the victim being smacked on the head, punched and kicked and having a lit cigarette being placed against his arm. A video was also taken of the victim naked, which was intended to be used against him.[18]
(c)In addition to the offences for which he was convicted, there is evidence before the Tribunal that the Applicant has otherwise been violent towards other acquaintances, even though he was not convicted for that violent behaviour.
(d)Even though the Applicant was not convicted in relation to these other acts of violence, para 8.1 of Direction 99 makes it plain that this primary consideration also encompasses a consideration of ‘other serious conduct’ committed by a non-citizen. The Tribunal is permitted to have regard to conduct for which there is evidence to support a factual finding that the conduct had occurred, even though there was no conviction in respect of that conduct .[19]
(e)The Applicant has also engaged in family violence which must be viewed very seriously (para 8.1.1(1)(a)(iii) of Direction 99).
(f)The Applicant has been sentenced to multiple terms of imprisonment for his offending (para 8.1.1(1)(c) of Direction 99). Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy.[20]
(g)The Applicant’s offending has escalated in seriousness in that his violent behaviour has become progressively worse (para 8.1.1(1)(d) of Direction 99).
(h)In June 2015, the Applicant was counselled in relation to his behaviour within the community and his obligations under the Code of Behaviour (para 8.1.1(1)(g) of Direction 99).
[18] R1/66.
[19] Citing Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90 at [64] (O’Callaghan J). See also [1] and [69] (Katzmann and Stewart JJ agreeing.
[20] Citing PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22].
The Applicant’s full criminal record, taken from the Australian Crime Intelligence Agency Check Results Report,[21] is set out in Annexure 2 to these reasons for decision. The most serious of the Applicant’s offences were those for which the Applicant was convicted and sentenced in the Melbourne County Court on 24 July 2019. The Applicant was sentenced to a “total effective sentence of 20 months imprisonment with non-parole period of 14 months”.[22] The circumstances of those offences were set out in Judge Parrish’s sentencing remarks as follows:[23]
[21] R1/32-3.
[22] R1/35 and Annexure 2.
[23] R1/34-73.
On Christmas Day 2018 at approximately 8.15pm you, [Applicant], convinced the victim, [D], to come for a drive in your car with you, [co-accused], under the false pretence of getting cigarettes. You, [Applicant], drove the victim to your house instead, and later that evening drove him back to his friends… Charge 1 on the Indictment – kidnapping.
During the car trip, your time at the house, and the subsequent drive, you, [co-accused], detained [D] against his will, Charge 2 on the Indictment – false imprisonment. Both of you also intentionally caused injury to [D]… Charge 3 on the Indictment – causing injury intentionally.
You were both very angry at [D] as he had recently commenced a relationship with [M] …with whom you, [Applicant], had had a relationship for about three years, having separated approximately six to eight months prior to the offending.
…
Over the last few days before Christmas 2018, you, [Applicant], sent messages to both [M] and [D]. In particular, on Friday 21 December 2018:
o[M] received a text message from you, [Applicant], stating “you both suit each other”.
oThere were further messages from you, [Applicant], of an abusive nature, including “I [see] this asshole [D] tomorrow night I won’t let him be alive; “I’m gonna fuck up those boys tomorrow one by one” and “I’m going to do what I say, those faggots are done tomorrow!”
oYou, [A], sent a message to [D] asking where he was, and also sought information from friends of [D], asking where he was.
oOn Sunday, 22 December 2018, [D] attended a party with [M]. During the lead-up to the party you, [co-accused], sent several text messages to [M], warning her not to go as you, [Applicant], were going there to have a fight as “he wants to go beat up the group of boys particularly [D]”.
On Sunday, 23 December 2018 you, [Applicant], used a mutual friend to telephone [D], telling [D] that you wanted to meet him, but [D] was busy and said he would call you back later. Later, at 9.21pm that night you, [Applicant], sent a message to [D] stating:
“You come with yourself. I’m not going to do anything to you. Don’t walk away from me you child. Otherwise if I happen to see you somewhere it wouldn’t be good for you. You know what I want to do with you. So just come over I want to see you”
…
On Tuesday, 25 December 2018 you, [Applicant], through a series of conversations, ascertained that [D] was at a café in Preston and at about 8.12pm you arrived at such café with several friends, including you, [co-accused]. You, [Applicant], were initially friendly with [D] and it was agreed that [D] and you, [co-accused], would have a chat in your car. Inside the car, you said you wanted to get some cigarettes and although [D] offered you a cigarette, you said you did not smoke that type, and ultimately you went off to get some cigarettes elsewhere.
…
In the car you, [Applicant], told [D] to give you his phone and when handed over, you told him a story about another man who had been involved with [M], stating “I put a bag on his head and took him somewhere far away”
At the end of the story, you instructed [co-accused] to hold [D]’s head down, and when [D] asked what was wrong and struggled while [co-accused] attempted to grab your head, you turned around from the driver’s seat and slapped him on his head.
When [D] continued to struggle you [Applicant], held out a red-handled kitchen knife in your left hand so that the victim could see the knife, (related Summary Charge assault with weapon). When he saw the knife, [D] stopped struggling.
…
On arrival at your house, [Applicant] , you told [co-accused] to take [D] into a garage where you, [Applicant], asked [D] for his phone password. At that time, [D] offered to open it with his fingerprint, but you, [co-accused], swore at him and slapped him to the left side of his face, after which [D] provided the password. You, [Applicant], began searching the messages and when you searched the photographs on the phone you found images of [D] and [M] and you said “Aw you’re fucked”.
You, [Applicant], then came towards [D] and began punching and slapping him to the head and you, [co-accused], attempted to join in. You, [Applicant], stopped him, telling him that you were the one who would hit [D]. At the time, [D] covered his face and began to feel pain in the back of his head.
You, [Applicant], again reviewed the photographs and after querying [D] why he would hug [M], as seen in the photo you, [Applicant], began punching [D] in the head and kicking his legs. At that time you, [co-accused], also joined in, punching [D] to the top of the head. Both of you continued to attack [D] for about twenty seconds.
The Judge continued to describe the assaults on D which lasted for some time and included kicking and punching. The Applicant then called M on D’s phone and instructed D to ask whether M wanted to go out somewhere with him. His Honour continued:
You, [Applicant], instructed [co-accused] to start recording on the phone again, and when such recording commenced you, [Applicant], told [D] that you were going to make him naked and show everyone. You told [D] to take his shirt off and he complied, after which you, [Applicant] and [co-accused], again approached [D] and hit him. Later, you, [Applicant], approached the victim and punched and slapped him.
Judge Parrish then described how the Applicant threatened D about having further contact with M and said to D that, if he wanted to, he could kill him “right now without anyone finding out”. The Applicant then:
..pressed the lit cigarette against [D]’s arm, causing [D] to feel immediate pain and move his arm, which caused you to laugh in response.
His Honour continued:
Later, you, [Applicant], instructed [co-accused] to again start recording, after which you requested [D] to get naked. Initially, [D] refused to take his shorts off, causing you, [Applicant], to punch him to the head. Later still, you [Applicant] and [co-accused], again struck [D] with you, [co-accused] repeatedly asking you, [Applicant], if he could hit him.
… decided to move from the garage into your house and you took [D] upstairs to your bedroom. In the bedroom, [D] began crying and asked you, [Applicant], to delete the videos of him, to which you replied you would keep them for a few months to ensure he stayed away from [M].
The group returned to the car and during the trip back you, [Applicant], hit
[D]’s head.
…
Ultimately, [D] was dropped back with his friends and had visible bruises to his face, was shaking and looked scared.
In April 2020 the Applicant was convicted of assault by kicking in the Ringwood Magistrates Court. The offence occurred in July 2018. The facts of that offence were set out in the Victoria Police Preliminary Brief – Statement Made by Informant.[24] Ms Tattersall for the Minister put a summary of the facts as disclosed by that document to the Applicant in cross-examination, as follows:[25]
… on 1 July [2018] you and the victim were attending a birthday party at a church. You then requested that the victim come with you outside to talk. He did so. And whilst in the carpark you confronted him about speaking to your girlfriend. You then punched him in the face with your right hand, and again with your left hand.

You and the victim then grabbed each other and someone else intervened.
That third person threw the victim to the ground and took you inside the church. The victim had a blood nose and bruising to his face. And in an attempt to stop you from leaving, the victim moved his vehicle behind your vehicle.
…
So after the victim attempted to block your vehicle, you returned to your vehicle and manoeuvred past him. The victim told you that the police had been called and you weren't allowed to leave. You then got out of your vehicle in the company of a third male. The victim was thrown to the ground by a further person. And the victim was then kicked numerous times by yourself and the two other males. That assault was witnessed by another person. And you were separated from the victim. And you left before the police arrived.
[24] R3/1195.
[25] Transcript at 38-40.
The Applicant’s evidence was that he admitted that he had a fight but could not remember the detail of the offence as he was drunk on the night. He admitted that he had hit the victim but could not remember kicking him.[26] The Applicant pled guilty to the charge of assault by kicking.
[26] Transcript at 39-40.
The Applicant was also cross-examined about an altercation that he had had with K, a friend of his mother. The precise nature of the relationship between K and the Applicant’s mother is unclear. In various Victoria Police records and statements given by the Applicant’s mother and K, K has been described as having an “intimate relationship” with the Applicant’s mother,[27] the Applicant’s mother’s “boyfriend”[28] and the Applicant’s mother’s “partner”.[29] The nature of the relationship between K and the Applicant’s mother is relevant to a claim by the Minister that the Applicant’s conduct involving K was family violence for the purposes of Direction 99.
[27] Victoria Police Incident Summary Report: R3/1222.
[28] Applicant’s mother’s statement to police dated 12 December 2018; R3/405.
[29] K’s statement to police dated 9 January 2019; R3/407.

The relevant incident involved a confrontation between the Applicant and K at K’s workplace in April 2018. The Victoria Police Incident Summary Report [30]stated that the Applicant had attended K’s workplace and that a verbal and physical altercation took place in which the Applicant struck K and an unrelated male multiple times with an unknown weapon. That account was put to the Applicant in cross-examination. The Applicant’s evidence was that he could not remember the details of what happened because he had “been away from that situation for a couple of years”. He said that he and K are close and that “fights happen among family members or friends” .[31]
[30] R3/1222.
[31] Transcript at 34.
The Minister argues that the assault on K is an act of family violence because K is, through his relationship with the Applicant’s mother, a “member of the [Applicant’s] family” for the purposes of para 4 of Direction 99. Relevantly, para 4(1) of Direction 99 provides:
family violence means 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. Examples of behaviour that may constitute family violence include:
a) an assault; or
b) a sexual assault or other sexually abusive behaviour; or
c) stalking; or
d) repeated derogatory taunts; or
e) intentionally damaging or destroying property;
…
i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
…
member of person’s family, for the purpose of the definition of the definition of family violence, includes a person who has, or has had, an intimate personal relationship with the relevant person.
(Original emphasis)
The Applicant’s mother’s evidence at the hearing was vehemently to the effect that she has never been in an intimate personal relationship with K.[32] I accept the Applicant’s mother’s evidence which is of more probative value as to her relationship with K than a statement in a police report, the author of which was not called, and the reference in a statement to police (through an interpreter, also not called) to K being her “boyfriend”.
[32] Transcript at 62.
Further, even if K and the Applicant’s mother were in an intimate relationship, that would not make K a member of the Applicant’s family for the purposes of the definition of family violence because K did not have the relationship with the Applicant who would be “the relevant person” for the purposes of the definition (see [59] above).
In assessing the seriousness of the Applicant’s offending and other conduct against the considerations identified in para 8.1.1 of Direction 99 relevant in this case, I find that:
(a)Paragraph 8.1.1(1)(a)(i) - the Applicant has been convicted of crimes of violence (kidnapping, intentionally cause injury, assault with weapon and assault by kicking). I am obliged to take into account that the Australian Government and the Australian community consider these crimes to be very serious. In taking those views into account, I am mindful of the obligation under para 8.1(2)(a) of Direction 99 to assess for myself the seriousness of the Applicant’s offending, informed by the statement of executive policy in Direction 99 (Singh v Minister for Immigration, Citizenship and Multicultural Affairs:[33] see also Price v Minister for Immigration, Citizenship and Multicultural Affairs.[34]
(b)Paragraph 8.1.1(1)(a)(iii) – while there was no conviction, the Applicant’s conduct towards M, his former intimate partner, leading up to and during the kidnapping and assault on D as described by Judge Parrish (see [51] above) would constitute family violence. That conduct was threatening or other behaviour aimed at coercing or controlling M, a person with whom the Applicant had had an intimate personal relationship[35] or which caused M fear.
(c)Paragraph 8.1.1(1)(c) – the sentences of imprisonment imposed by the Court, while not insubstantial (see [6] above) (noting that imprisonment is the last resort in the sentencing hierarchy (PNLB), were at the low end of possible sentences. As noted by Judge Parrish when sentencing the Applicant, the maximum penalty for kidnapping is 25 years’ imprisonment, the maximum penalty for causing injury intentionally is 10 years’ imprisonment and the maximum penalty for unlawful assault is two years’ imprisonment.[36] The Applicant was sentenced to seven days (concurrent) on the assault by kicking charge. The sentences imposed indicate that, while the offences were obviously inherently serious, they were, in each case, clearly considered to be at the very low end of seriousness for offences of that type.
(d)
Paragraph 8.1.1(1)(d) – the Applicant’s convictions arose out of two separate incidents separated by some five months, July 2018 and December 2018.

The Applicant arrived in Australia in July 2013. I would not describe the Applicant’s offending as “frequent” given that there were, in effect, two incidents over a period of five and a half years from the Applicant arriving in Australian in July 2013 and the Applicant committing the offences in December 2018. It is the case, however, that there is a trend of increasing seriousness given the obvious difference between the assault by kicking offence committed in July 2018 and the much more serious offences committed in December 2018.
(e)Paragraph 8.1.1(1)(e) – Other than the obvious harm caused to the victims of the Applicant’s offences and the waste of public money and resources (police, courts, hospitals, this Tribunal) resulting from that conduct, there is no discernible “cumulative effect” of the Applicant’s offending.
(f)Paragraph 8.1.1(1)(g) – in July 2015, the Applicant did receive “counselling” by the Department following an assessment for “Alleged Breach of the Code of Behaviour for Illegal Maritime Arrival released into the community”[37] arising from the Applicant being stopped by police for driving his mother’s car which was unregistered, and while he was unaccompanied while driving on a learner’s permit. The Applicant had signed the Code of Behaviour on 25 February 2015. The counselling notes indicate that the Applicant had been counselled to comply with the Code of Behaviour which included a provision which advised that a breach of the code may result in cancellation of the visa. In that sense, the counselling in July 2015 could be considered to be warning of the consequences of “further offending”. It is, however, far less explicit than the formal warning usually issued by the Department after consideration is given to cancelling a visa (or after cancellation has been revoked) which clearly, and usually in bold print, advises that further offending may result in cancellation of the visa.
[33] (2023) 296 FCR 582 at [73] per Snaden J.
[34] [2023] FCAFC 171 at [71].
[35] Applicant’s evidence: Transcript at 24.
[36] R1/36-7.
[37] R2/24-5.
As noted at [62(a)] above, para 8.1.1(1)(a) of Direction 99 requires the decision-maker to take into account the views of the Australian government and the Australian community that crimes of violence and acts of family violence are to be viewed “very seriously”. Independently of that view, however, applying the principles of Singh and Price (see [62(a)] above), the particular circumstances of the Applicant’s offending, the fact that there are only four convictions and the fact that, other than the two occasions on which the Applicant offended, he has been law-abiding, cause me to consider the Applicant’s criminal record as a whole as being moderate to serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
Paragraph 8.1.2 of Direction 99 relevantly provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers 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 that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, 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:
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 their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of harm to individuals or the Australian community (8.1.2(2)(a))
The Applicant’s submissions dated 20 October 2023 made no submission on the nature of the harm that would be caused to individuals or to the Australian community should the Applicant engage in further criminal or other serious conduct.
The Minister’s SFIC contended that the nature of the harm if the Applicant were to reoffend is very serious and would involve physical harm, psychological harm to the victims and others, and broader financial harm to and consequences for the justice and health systems. That is, self-evidently, correct.
However, I do not accept the Minister’s submission, in my experience made in just about every case involving Direction 99, that “the risk of harm is so serious that any risk of reoffending is unacceptable (paragraph 8.1.2(1) of Direction 99)”. The Minister does not identify what particular harm in this case would be so serious that it should be elevated to the level of “any risk” of it occurring being unacceptable. I repeat my comments at [48] of Fetelika and Minister for Immigration, Citizenship and Multicultural Affairs[38] on this submission. I also observe that, as the Applicant is going to remain in the community irrespective of the decision that I make, in other words, the community will in any event be exposed to whatever risk the Applicant poses, the concept of a risk being “unacceptable” in the context of this application has academic application only.
The likelihood of the non-citizen engaging in further criminal or other serious conduct (8.1.2(2)(b))
[38] [2023] AATA 2606.
The Applicant’s submissions dated 20 October 2023 made submissions to the following effect:
(a)The sentencing remarks of Judge Parrish assessed the Applicant as representing a medium risk of reoffending. Mr Watson-Munro’s report dated 6 December 2022 opined that the Applicant’s risk of offending was “trending from Moderate to Low”.
(b)The Applicant reiterates the comments made in DLZZ1 that the sentencing judge was speaking to a time more than three years ago and, accordingly, this comment should not influence a finding on the Applicant’s current risk of reoffending.
(c)The Applicant was assessed by forensic psychologist, Ms Delphine Bostock on 28 September 2023. Ms Bostock considered that there is a very low risk of the Applicant reoffending, citing as evidence his lack of juvenile offences and that he has never been punished for institutional misconduct and has never breached probation/parole. He received an overall score on the Level of Service/Case Management Inventory survey of five which placed him in the “low” risk of reoffending.
(d)The Applicant has completed many treatment plans during his incarceration and in detention. The Applicant rejects the Minister’s assertion that his rehabilitation in relation to alcohol and drug use is limited. The Applicant contends that his abstinence from alcohol and drugs for a period of around five years to date, represents adequate rehabilitation.
(e)The Minister’s claim that the Applicant has not been tested in an unsupervised environment is erroneous, as the substances are available and accessible in immigration detention. The Applicant has made conscious choices whilst in immigration detention to affiliate with positive influences and avoid harmful situations.
(f)Ms Bostock’s report noted that the Applicant ‘has consistently demonstrated regret and remorse and expressed empathy for his victims as well as the effects of his behaviour on his mother compounding her suffering. [He] has expressed views that are supportive of the criminal justice system. He stated: “I accept everything the Judge said and I respect that”’.
The Minister’s SFIC made submissions to the following effect:
(a)There remains an ongoing and unacceptable risk of the Applicant reoffending.
(b)The Applicant has a history of offending in Australia by committing violent offences.
(c)Judge Parrish’s sentencing remarks refer to the Applicant being assessed as representing a medium risk of reoffending and that, even allowing for his youth, the Applicant’s prospects of rehabilitation were ‘guarded’.
(d)It is apparent that in completing his report, Mr Watson-Munro had access only to the independent material contained within the sentencing remarks. Mr Watson-Munro expressed the opinion that the Applicant’s risk of reoffending was “trending from Moderate to Low” and that he had unmet treatment needs.
(e)In her report, Ms Bostock opined that the Applicant has a low risk of reoffending. It is, however, clear that Ms Bostock was not provided with all relevant material including for example the G-documents, summons records and other relevant source material including transcripts and IHMS records. This is particularly relevant in light of the reference in the report to risk assessment being “an inherently limited process dependent on the type and quality of information available at the time…”[39]
(f)Alcohol and drug use contributed to the Applicant’s offending at least in December 2018. The Applicant’s rehabilitation in relation to those matters is limited.
(g)It is suggested that the Applicant has not consumed drugs or alcohol since the night of the offence. His abstinence has not been tested in an unsupervised environment. In that regard, Mr Watson-Munro’s report referred to the “inevitable adjustments that [the Applicant] will face when returning to the community”
(h)Contrary to the Applicant’s assertions that he has not been able to attend regular counselling sessions in immigration detention, the records indicate that he previously engaged only in the context of previous Tribunal proceedings and only sought to re-engage recently following the delegate’s decision.
(i)While the Applicant expressed remorse at his sentencing, he was assessed by community corrections as having ‘some insight’ into his offending and ‘little remorse’ for the victim. The sentencing judge found that the Applicant had shown some remorse, although this was, according to the judge, in no small part due to the matter having ‘come this far’. The Minister contended that any remorse should not be seen as genuine. Subsequent reports support a finding that the Applicant continues to minimise his offending.[40]
(j)The protection of the Australian community weighs heavily against the grant of the visa.
[39] Quoting Ms Bostock’s report.
[40] Citing IHMS Christmas Island psychologist report dated 22 November 2022; R3/138.
The most recent assessment of the Applicant’s risk of reoffending is Ms Bostock’s report dated 5 October 2023.[41] In her report, Ms Bostock made the following comments and assessments:
[41] Attachment 6 to the Applicant’s submissions A1.
(a)The Applicant stated that never been formally assessed for a mental health disorder.
(b)The psychological report of Mr Watson-Munro dated 6 December 2022 noted current symptoms of depression and anxiety “with no indications of major psychiatric disturbance”.
(c)The Applicant has never received regular, ongoing individual treatment.
(d)The psychological literature has consistently demonstrated that immigration detention has adverse effects on mental health. Detainees have higher levels of anxiety, depression and PTSD; suicidal ideation is also common, and the severity of distress is associated with longer periods of detention (citing Von Werthern et al., 2018).
(e)The Applicant reported starting drinking in his early adulthood. His consumption of alcohol increased significantly in association with increased conflict with his partner at the time. He stated that he drank “to forget about the world” and would drink after work until he “passed out”.
(f)His use of cannabis was similar and occurred alongside his alcohol use.
(g)The Applicant claims that he has remained alcohol and drug abstinent since his arrest.
(h)He has completed therapeutic programs specifically to address addictions whilst in custody and has also attended Self-Management and Recovery Training (SMART) meetings and Narcotics Anonymous (NA) meetings.
(i)The Applicant has consistently expressed remorse and accepted responsibility for his offending. In hindsight has realised that he could have managed himself in a much better way.
(j)The Applicant stated that nothing was more important than freedom and being with his mother.
(k)According to the Applicant, while in prison and detention he has completed programs which have addressed his criminogenic needs. He “demonstrated insight and the gains he has made as a result of participation in these programs”. He has formulated a self-management plan in which he has provided specific examples of how he has been able to implement what he has learned.
(l)There are no documented instances of institutional misconduct and the Applicant stated that he is presently housed in accommodation that is designated for well-behaved detainees.
(m)Applying the Depression, Anxiety and Stress Scale (DASS-21; Lovibond & Lovibond, 1995), the Applicant scored within the Moderate ranges for Depression and Anxiety and the Mild range for Stress.
(n)The Applicant’s score applying the Posttraumatic Stress Disorder Checklist for DSM-5 (PCL-5; Weathers, Litz, Keane, Palmieri, Marx & Schnurr, 2013), indicates that he currently experiences symptoms of traumatic stress including feeling very upset at reminders of the stressful experiences; avoiding thoughts, memories or feelings related to the stressful experiences; trouble remembering some important parts of the stressful experience(s); having strong negative feelings such as fear, horror, anger, guilt or shame; loss of interest in activities; difficulty sleeping; difficulty concentrating and feeling distant or cut off from other people.
(o)This measure is not sufficient in itself to establish a diagnosis of post-traumatic stress disorder (PTSD). The Applicant’s responses are consistent with a provisional diagnosis of PTSD.
(p)Risk assessment is an inherently limited process dependent on the type and quality of information available at the time; as well as sensitive to fluctuation in changes of dynamic factors.
(q)Ms Bostock assessed the Applicant using the Level of Service/Case Management Inventory (LS/CMI; Andrews, Bonta & Wormith, 2004). The Applicant’s overall score on the LS/CMI was five, which placed him in the Low risk of reoffending. His score was below 98.5% of incarcerated male offenders and 85.4% of community-based male offenders in the North American normative sample.
(r)The Applicant expressed ongoing concern for his mother’s well-being. Her mental health difficulties were noted. The Applicant appears to have been integrated within the Australian community as demonstrated in, not only his employment, but his involvement in the church.
(s)It is unclear how Mr Watson-Munro formulated his estimation of risk as “trending from Moderate to Low”. The present assessment of risk finds the Applicant now to be in the Low-risk range per the LS/CMI.
(t)The Applicant does not appear to be an inherently antisocial person with entrenched patterns of offending. He expressed views that are supportive of the criminal justice system.
(u)The Applicant currently presents with symptoms of depression, anxiety and posttraumatic stress. He indicated that intends to commence weekly individual therapy and has identified a treatment provider if he is permitted to return home.
(v)The Applicant’s mental health would deteriorate with further detention and if he were to be deported. The Applicant has demonstrated employment history and offer of ongoing employment, prosocial leisure activities and is motivated for treatment. He has a broad support network most importantly the connection to his mother. He plans to live with his mother. These factors are positive for his overall prognosis including risk of reoffending.

At the hearing, I asked Ms Bostock whether the Applicant having PTSD (noting that Ms Bostock’s evidence was that there had not been a formal diagnosis of PTSD in accordance with DSM - 5, but rather a “provisional diagnosis” (see [70 (o)] above)) increased the likelihood of the Applicant offending. Her evidence had been that PTSD, of itself, did not increase the risk. Her evidence was that it depended on what kind of reaction the person with PTSD was prone to, whether it was “fight, flight, or freeze”.[42]
[42] Transcript at 83.
Ms Bostock’s evidence was that, based on the Applicant’s past behaviour, it was likely that his response was prone to be “fight”. I then asked whether she had formed a view as to whether the Applicant had a plan for dealing with triggering events to avoid reacting in an antisocial or unacceptable way. Her response was that she thought that he did not have such a plan because he had not had specific trauma treatment to address triggers.
I then asked Ms Bostock whether, in her view, the Applicant required further treatment to address potential for inappropriate responses. Her answer was that he did, but that he had “done a really good job to stay out of trouble in a really high-stress environment, with other traumatised, reactive people presumably… The fact that he has managed to control himself in such a difficult environment says a lot about the gains he's made through the treatment that he's already had, even though it hasn't been trauma-specific”.
Ms Bostock’s above comments are, in my view significant. While I think that there is merit in the Minister’s contention that the Applicant appears to have strategically availed himself of the counselling and treatment services available only when court or Tribunal appearances were imminent, and while it might be the case that the Applicant has only had limited treatment and counselling for his provisionally diagnosed PTSD, his ability to control himself, to walk away when confronted with a potentially volatile situation which could easily have escalated into violence, is a positive portent for his future conduct.

I agree with Ms Bostock’s description of detention as being a really high-stress environment rather than, as the Minister portrays it, a controlled environment.
The Applicant’s treatment for drugs and alcohol abuse has been more extensive (see [70(h)] above) and the fact that he has been alcohol and drug abstinent for five years indicates that his issues with drugs and alcohol have significantly subsided.
I also place weight on the Applicant’s closeness to his mother, the fact that he is her only family in Australia and that he will live with her when released as a significant influence against the Applicant reoffending. I also place weight on the other stabilising factors of his prospects of employment as a painter[43] and support from the community, in particular his church.[44]
[43] A1/32 and 35.
[44] Letters of support provided by the pastor; A1/137, 138 and 13.
The Applicant had been offence-free for over five years before he committed the offences in July and December 2018. His offending was isolated to two incidents which were emotion, drugs and alcohol fuelled. I accept his evidence, supported by Ms Bostock’s evidence, that the Applicant deeply regrets his actions and the harm that it has caused to his mother, his victims and to himself. He has matured, noting that the Applicant was only 22 years old and in his first serious relationship, and now understands the consequences of such behaviour and the consequences that will follow if he repeats that conduct.
I agree with Ms Bostock’s assessment of the Applicant’s risk of reoffending as being low.
The harm that could be caused if the Applicant were to offend is serious, however, because I assess the Applicant’s risk of reoffending as low, I place only minor weight on this consideration as weighing against the grant of the visa.
As with most, if not all, of the considerations under Direction 99, assessment of this first primary consideration must be made in light of the fact that the Applicant has been granted a Pending Removal visa, has been released from detention and is living in the community. The fact that the Australian community will be exposed to the Applicant’s behaviour, irrespective of the decision that I make, must mean, as a practical matter, that this consideration has less weight. However, as I am required to take into account the mandatory considerations under Direction 99 and to give each consideration appropriate weight, I do so and accord this consideration minor weight against the grant of the visa.
Second primary consideration: Family violence committed by the non-citizen (para 8.2)
Paragraph 8.2 of Direction 99 provides:
(1) The 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).
(2) This 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.
(3) In considering the seriousness of the family violence engaged in by the noncitizen, 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.
Paragraph 4(1) of Direction 99 defines family violence (see [59] above). For the reasons set out in [60] and [61] above, I do not accept the Minister’s argument that the Applicant’s conduct towards K, even if I accepted that there was an assault or other relevant conduct, was family violence for the purposes of Direction 99.
However, for the reasons set out in [62(b)] above, I find that the Applicant’s conduct towards M on and around the day of the kidnapping and assaults on D, was family violence. While the Applicant’s conduct was family violence, it was an isolated incident and, while all family violence is serious, there was no actual physical violence towards M and the incident falls at the low end of seriousness for family violence.
This consideration weighs against the grant of the visa but, given that there is only one incident and it falls at the low end of seriousness, it should be accorded only minor weight.
Third primary consideration: The strength nature and duration of ties to Australia (para 8.3)
Paragraph 8.3 of Direction 99 provides:
(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.
(2) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens. Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must 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 non-citizen has been ordinarily resident in Australian 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 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.
The Applicant’s submissions of 20 October 2023 made submissions to the following effect:
(a)The Applicant’s only living immediate family member is his mother. She is an Australian permanent resident, who resides in Victoria. Her RoS visa was granted on 23 June 2023. She has been unable to visit the Applicant in detention due to the cost of flights and accommodation associated with visiting him in Western Australia. Due to this, and previously lockdown laws and travel restrictions following Covid-19, she has not seen her only child in nearly four years.
(b)Each day that the Applicant is separated from his mother is another day of hardship and strain on her mental health and well-being. The Applicant’s mother suffers from depression and anxiety.
(c)The Applicant’s mother continues to work whilst he is in detention and contributes positively to the Australian economy in this way. If the Applicant’s BVE is granted however, he will be in a position to assist his mother with living expenses through his own employment.
(d)The Applicant has close ties to individuals in the Australian community who are willing to offer him paid employment positions as soon as he is released from detention.
The Minister’s SFIC contended as follows:
(a)The evidence shows that the Applicant’s mother obtained employment following his incarceration and also obtains financial and mental assistance from others.
(b)Limited evidence has been provided of the Applicant’s broader ties to the Australian community. Statements of support have been provided from the applicant’s former girlfriend, a friend and former employer and two other friends. Those statements are dated.
(c)The Applicant has lived in Australia for ten years. He did not arrive as a young child and was not an ordinary resident during his formative years.
(d)There is some limited evidence of the Applicant making a positive contribution to the community through his employment working as a housepainter for the year prior to going into immigration detention and attending church. However, whilst the pastor referred to the Applicant having regularly attended church between March 2018 and March 2019, the Applicant has referred to only becoming closer to his religion in the last few years and that he was not active in the church during that period prior to his incarceration.
(e)The Minister accepts that this consideration weighs in the Applicant’s favour, however, submits that it does not outweigh the heavy weight the Tribunal should give the other primary considerations which weigh heavily against grant of the visa.
Not surprisingly, the Applicant’s submissions and the evidence filed by the Applicant in relation to this consideration were based on the premise that a decision not to the grant the visa would result in the Applicant being removed from the community and his family. Since the issue of the Pending Removal visa, that is not the case.
The Applicant’s mother made two written statements relevant to this consideration; a statutory declaration dated 16 October 2023[45] and a statutory declaration dated 11 December 2022.[46] These statements were prepared on the assumption that an adverse decision would result in the Applicant’s removal, if not from Australia, at least from the community. Relevantly, her evidence in her statutory declaration dated 11 December 2022 was:
I don’t have anyone in my life, I only have [the Applicant]. I did all this for [the Applicant], to give him a safe life with me and now he’s being taken away. The pain I feel is so much, I keep crying every time I think [the Applicant] might never come home.
[45] Attachment 9 to the Applicant’s submissions A1.
[46] Annexure C to the Applicant’s submissions A1/24.
Her evidence in her statutory declaration dated 23 October 2023 relevant to this consideration, having repeated the above quoted statement from her 11 December 2022 statutory declaration, was to the effect that she still thinks constantly about the Applicant and worries for his safety. She said that when she found out that the Applicant was not going to be released, she had to take higher doses of medication for her depression and anxiety. He is a changed man and will make her proud.
At the hearing, on the assumption that an adverse finding in this matter would result in the Applicant being removed, I asked the Applicant’s mother what impact his removal from Australia would have on her. Her answer was that it would equate to her death. She only has her son in her life. She has no other relatives.[47]
[47] Transcript at 69.
I find that the impact on the Applicant’s mother of a decision that would result in the Applicant being removed from the community would be very significant. It is difficult to say what the impact of a decision that would result in the Applicant remaining in the community on the conditions of the Pending Removal visa rather than on a Bridging E (Class WE) visa would be. As events have unfolded, that, however, is the “impact” of the decision that I am supposed to consider under this consideration. That being the case, the impact is going to be a lot less.
I also accept that the Applicant has significant links to the Australian community in addition to the link through his mother. As the Minister’s SFIC noted, various letters of support were provided by friends including a former employer who runs a painting business who is prepared to employ the Applicant.
Also as conceded by the Minister, the Applicant was, up to the time of his arrest, gainfully employed and involved in his local church. At the hearing the Applicant also gave evidence that he participated in a festival called the Persian Fair which that Applicant said is held every year. He performed music with his band at the fair. The bundle of documents provided with the Applicant’s submissions included photographs of the Applicant and his band performing at the fair.[48]
[48] R1/248-51.
I accept that the Applicant has meaningful links to the Australian community in addition to the familial ties through his mother. I also accept that the Applicant has been ordinarily resident in Australia since his formative years and that he contributed to the Australian community through his work and payment of taxes and through his involvement with his church and the Persian Fair.
With the caveat that, given that the Applicant will remain in the community whichever decision I make, I find that this third primary consideration, the strength nature and duration of ties to Australia, weighs heavily against refusal of the visa.
Fourth primary consideration: The best interests of minor children in Australia affected by the decision (para 8.4)
The Applicant has not identified any minor children in Australia to whom this consideration would apply. Neither party made any submission in relation to this consideration and I accept that it is not relevant.
Fifth primary consideration: Expectations of the Australian Community (para 8.5)
Paragraph 8.5 of Direction 99 relevantly provides:
(1) 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.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
…
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable (sic) risk of causing physical harm to the Australian community.
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
The language of para 8.5(1) highlights the difficulty in applying the considerations in light of NZYQ and the grant of the Pending Removal visa. Insofar as the consideration expresses an expectation of the Australian community that a non-citizen will not be allowed to remain in Australia, that is now an expectation that cannot be realised.
The Applicant’s submission made no submission on this consideration.
The Minister’s SFIC contended that:
Observing the norm stipulated in paragraph 8.5(1), and in accordance with the guidance provided by Principles 5.2(2), (3) and (4) of Direction 99, the Australian community would expect that the [A]pplicant should not continue to hold a visa on account of his offending.
As noted above, that is now an expectation that will not apply. The Applicant will hold a visa, the only question is whether it will be a Bridging E (Class WE) visa or a Pending Removal visa. The highest expectation that the Australian community can have is that the Applicant remain in the community on the far more stringent and restrictive conditions of the Removal Pending visa, which include (subject to High Court review) consequences for breach which include terms of imprisonment[49] and, in the case of breaches of certain conditions, mandatory terms of imprisonment.[50]
[49] Sections 76B, 76C and 76D of the Act.
[50] Section 76DA of the Act.
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated in para 8.5, without independently assessing the community’s expectations in the particular case.[51] The principles set out in para 5.2 of Direction 99 are also relevant to this consideration.
[51] Para 8.5(4) of Direction 99.

The operation of this provision was considered by the Full Court in Minister for Immigration, Citizenship and Multicultural Affairs v HSRN.[52] While the Full Court in HSRN was considering Direction 90, the wording of the corresponding provisions in Direction 99 is the same. Relevantly, the Full Court found at [40] and [44]:
It is to be observed that s 499(2A) of the Act, as mentioned, provides that a person or body “must” comply with a direction given under s 499(1) – reference is expressly made to that requirement in para 5.1(4) of Direction No. 90. Also, the Direction provides that the decision-maker “must”, amongst other things, consider the expectations of the Australian Government as expressed in the Direction (para 5.2(4), 5.2(5) and 6 read with 8.4(4)), and that expression of the expectations applies as a “norm” (para 8.4(1)). In that context, “should” in para 8.4(4) is indicative of a requirement that must be followed; it is mandatory. That is because it would be inconsistent to read, for example, para 6 as being mandatory because of its use of the word “must”, with the result that the relevant consideration must be taken into account, but reading para 8.4(4) as merely offering guidance thereby permitting the decision-maker to arrive at its own view or assessment of what the expectations of the Australian community are. It is to be noted that one of the meanings of “should” is to convey duty or obligation rather than merely guidance: Oxford English Dictionary online version, “shall” (meaning no. 18.a). Reading “should” as indicating only guidance would also be inconsistent with what was held in FYBR, and the acceptance by the Court in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6] that a failure to comply with the relevant Direction’s express requirements as to the conditions to be brought into account and the manner in which those considerations were to be weighed in deciding whether to revoke a visa cancellation would be jurisdictional.
...
Leaving aside whether the Tribunal can permissibly have independent regard to community expectations as assessed by it, which must be considered at least doubtful given the Direction’s express provisions with regard to that subject which can be expected to cover the field, the submission fails on the facts. That is because the Tribunal did not take account of its own assessment of community expectations “outside the prism of para 8.4(4)”. On the contrary, it made its own assessment of community expectations expressly within the context of its consideration of para 8.4. That is a clear error.
[52] [2023] FCAFC 68.
Nothing in this case indicates that the “norm” as stated in para 8.5(1) of Direction 99, should not apply. I must, however, determine the weight that should be given to this consideration. Some guidance in this regard is provided by para 8.5(2) of Direction 99 which provides that the Australian community expects that the Australian Government should not grant non-citizens visas if they raise serious character concerns through conduct, in Australia or elsewhere, of the kind listed is sub-paras 8.5(2)(a)–(f) of Direction 99. As noted above, the highest that that expectation can now reach in the present case is that the Applicant remains in the community on the Removal Pending visa rather than the Bridging E (Class WE) visa.
This consideration of the expectations of the Australian community, by application of the “norm”, which I have found applies in the present case, weighs against the grant of the Bridging E (Class WE) visa. The new reality is that this consideration is driven by the difference between the two options now available, namely, should the Applicant remain in the Australian community on the more stringent conditions of the Removal Pending visa which provide some control and monitoring of the Applicant in the community, or the less stringent conditions of the Bridging E (Class WE) visa. My assessment, guided by the necessary restrictions now imposed on the realisation of the Australian community’s expectation as expressed in para 5.2 and 8.5 of Direction 99, is that the Australian community’s preference would be for the Applicant to remain in the community subject to the more stringent conditions of the Removal Pending visa. I assess that moderate weight should be given to this consideration.
OTHER CONSIDERATIONS
Paragraph 9 of Direction 99 sets out the “Other considerations” to be taken into account as follows:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) Legal consequence of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests
Legal consequences of the decision (para 9.1)
Paragraph 9.1 of Direction 99 provides:
(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(2) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
Again, the decision in NZYQ and the consequential grant of the Pending Removal visa, largely renders par 9.1 of Direction 99, and the sentiment underlying the paragraph, inapplicable. The direct legal consequences of the decision that I make are those identified by the Minister in his submissions as reproduced at [41] above.
A further consequence, not identified by the Minister but alluded to by the Applicant, is that, if the decision to refuse to grant the Bridging E (Class WE) visa is set aside and a substituted with a decision not to exercise the discretion to refuse to grant that visa, the Applicant’s application for a RoS visa will no longer be taken to have been refused under s 501F of the Act (see [17] above). A RoS visa, a permanent visa, would afford the Applicant much greater security and more rights than he would have under the pending removal visa. It would also mean that the Applicant would not be prevented from making an application for any other visa a condition of which is that a visa has not been refused under s 501(1) of the Act. The Applicant would still be subject to any bar under s 46A(1).
I find that the legal consequences, particularly that identified in paras [109-10] weigh heavily in favour of not refusing to grant the visa.
Extent of impediments if removed (para 9(1)(b)), impact on victims (para 9(1)(c)) and impact on Australian business interests 9(1)(d))
The Applicant made no submission on any of these considerations. The Minister’s SFIC submitted that there is no current prospect that the Applicant will be removed to Iran because he is owed non-refoulement obligations and s 197C(3) effectively prevents his removal to that country. In those circumstances, the Minister contends this consideration should weigh neutrally. I agree.
In relation to the other two considerations, the Minister correctly contended there is no relevant evidence before the Tribunal, and, accordingly, they should be given neutral weight. Again, I agree.
THE WEIGHING EXERCISE
Direction 99 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 99 sets out the way in which the relevant considerations are to be taken into account (see [35] above).
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under earlier Ministerial Directions issued under s 499 of the Act (see [31] above), the same considerations apply to the exercise required by Direction 99 which is materially in the same terms to those earlier Ministerial Directions. I am guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection and the Full Court judgment in Minister for Home Affairs v HSKJ[53] See also XRGY and Minister for Immigration, Citizenship, and Multicultural Affairs[54] for analysis of those cases.
[53] [2018] FCAFC 217; [2018] FCAFC 217; 266 FCR 591.
[54] [2023] AATA 755 at [182]- [183].
More recently the Full Court of the Federal Court considered the operation of Direction 90 (relevantly materially the same as Direction 99) in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs.[55] At [35] the Full Court described the process as follows:
The balancing process is directed to determining whether there is “another reason” why the visa cancellation should be revoked. It requires an identification of the matters that may constitute “another reason” and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute “another reason” capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.
[55] [2023] FCAFC 138
In criticising the Tribunal’s reasons, the Full Court at [38] found:
...They do not disclose that there was any process by which the Tribunal grappled with the competing considerations, each of which had been ascribed a different descriptor of weight and some of which had the status of being “primary” considerations and others not, in order to bring them to bear in forming a state of satisfaction as to whether there was “another reason” to revoke the cancellation. The statutory task is not fulfilled by ascribing a descriptor of weight, such as “strong”, “significant”, “considerable” or “moderate” (in favour of or against revocation) to the different considerations, primary and other, and then stating a conclusion as if that conclusion was made inevitable by the application of a mathematical formula.
And at [43]
... the Tribunal recognised in paragraph [113] that it was required to weigh “all the Considerations” (emphasis added), and because it had expressly gone through the process of considering each of the “other considerations in turn”, as explained above, it cannot be concluded that the Tribunal failed to consider the “other considerations”. However, there is nothing in the concluding section of the Tribunal’s reasons, or indeed anywhere, which reveals any process of balancing and evaluation... Nor is there anything which demonstrates that in reaching its ultimate conclusion, the Tribunal brought to bear its assessment of the weight of the various “other considerations”. After summarising, and rephrasing, its earlier ascription of descriptors of weight to each of the primary considerations, the Tribunal then simply concluded in paragraphs [114] and [115] by use of the words “therefore” and “consequently” that the visa cancellation should not be revoked. Such a conclusion does not inevitably or necessarily follow from those unexplained, un-balanced and un-weighed descriptors of weight; it may be that such a conclusion is justified by what preceded it but it is not apparent that the Tribunal undertook the required process of evaluation in order to reach its decision. It is not even apparent that the Tribunal considered that the weight of all the primary considerations were compelling against revocation of the cancellation of the visa, since it placed “significant weight” on one of those considerations, the interests of minor children, as favouring revocation.
And at [44]:
...What it did, on the face of its reasons, is ascribe weight to the various considerations having considered each in isolation and then express a conclusion without demonstrating that it actually weighed the various considerations against each other and undertook a proper evaluation of whether there was indeed “another reason” why the cancellation should be revoked.
What I understand the Full Court to be saying is that giving a weight to each consideration by ascribing a particular quantitative or qualitative adjective and then stating a conclusion without explaining how the conclusion flows from or arises out of a described process of assessing the weight of each consideration against each other consideration, is not discharging the statutory function. Applying those principles to the case of the exercise of discretion under s 501(1) to refuse to grant a visa, I take the Full Court to be directing the decision-maker to give appropriate weight to each relevant consideration, explain why such weight is given to the consideration and then, through a described, logical process, compare and balance all of the applicable considerations to determine whether it is appropriate, in the circumstances, to refuse to grant the visa.
Following the above-described process, I have ascribed a weight to each of the relevant considerations under Direction 99 and explained the basis upon which I have assessed the weight to be given to each consideration. As noted previously, the decision that I make will not have the effect of deciding whether the Applicant stays in the community or is removed the Australian community, the premise upon which most of the considerations under Direction 99 are formulated. My decision will simply decide the conditions on which the Applicant will be in the community and whether the consequences identified in [110] above will ensue. That fact obviously affects the criticality of the decision and, accordingly, the overall weight that the considerations carry. In addition to the overall weight of the considerations, as a whole, being affected by the fact that the Applicant will hold a visa no matter what I decide, the relative importance and therefore weight between the considerations, both those that favour the grant of the visa and those against the grant of the visa, are also affected. For instance, the consideration of the safety of the Australian community takes on a different complexion given that the Australian community will be exposed to the Applicant’s behaviour irrespective of the decision that I make.
In light of the above observations, and following the guidance provided by the above cases, I find that the first primary consideration, the protection of the Australian community, weighs against the grant of the visa but that only minor weight should be afforded it (see [80] above).
The second primary consideration, family violence committed by the Applicant, weighs against the grant of the visa but only minor weight should be given to the consideration (see [84] above).
The third primary consideration, the strength, nature and duration of the Applicant’s ties to Australia, weighs heavily in favour of the grant of the visa (see [96] above).
The fourth primary consideration, the best interests of minor children in Australia affected by the decision, is not relevant.
I find that the fifth primary consideration, the expectations of the Australian community, weighs against the grant of the visa and that moderate weight should be given to that consideration.
The only “other consideration” relevant in the present case is that of the legal consequences of the decision which I find weighs heavily against refusing to grant the visa (see [111] above).
I am mindful that para 7(2) of Direction 99 states that primary considerations should generally be given greater weight than the other considerations (see [35] above). In that regard, I repeat the observations made at [119] above. Having weighed the considerations, I find that the considerations against exercising the discretion to refuse to grant of the visa under s 501(1) outweigh those in favour of refusing to grant the visa.
DECISION
The decision of the delegate of the Minister dated 4 September 2023 to exercise the discretion under s 501(1) of the Act to refuse to grant the Applicant a Bridging E (Class WE) visa is set aside and substituted with a decision not to refuse the grant of the visa under s 501(1) of the Act.

I certify that the preceding 127 (one hundred and twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

........[Sgd]................................................................
Associate
Dated: 28 November 2023

Date(s) of hearing:

10, 13 November 2023

Applicant:

Self-represented

Solicitors for the Respondent:

Ms E Tattersall, Sparke Helmore Lawyers

Annexure 1
Bridging R (Class WR) (Removal Pending) (subclass 070) Visa Conditions
8303 - No violent or disruptive activities
The holder must not become involved in activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community.
8401 – Report as Directed
The holder must report:
(a) at the time or times; and
(b) at a place or in a manner; specified by the Minister from time to time.

8513 – Notify residential address
The holder must notify Immigration of his or her residential address within 5 working days of grant.
8514 – No change in circumstances
During the visa period of the visa, there must be no material change in the circumstances on the basis of which it was granted.
8541 - Must Assist with Removal
The holder:
(a)must do everything possible to facilitate his or her removal from Australia; and
(b)must not attempt to obstruct efforts to arrange and effect his or her removal from Australia.

8542 – Report for removal from Australia
The holder must report in person for removal from Australia in accordance with instructions given, orally or in writing, by the Minister.
8543 - Facilitate removal from Australia
The holder must attend at a place, date and time specified, orally or in writing, by the Minister in order to facilitate efforts to arrange and effect his or her removal from Australia.

8550 - Notify changes in personal details
The holder must notify the Minister of any changes in the holder’s personal details, including a change to any of the following contact information:
(a)         the holder’s name;
(b)         an address of the holder;
(c)         a phone number of the holder;
(d)         an email address of the holder;
(e)         an online profile used by the holder;
(f)          a user name of the holder;

not less than 2 working days before the change is to occur.
8551 – Obtain approval for certain occupations
(1) The holder must obtain the Minister’s approval before taking up employment in the following occupations, or occupations of a similar kind:
(a)occupations that involve the use of, or access to, chemicals of security concern;

(b) occupations in the aviation or maritime industries;
(c)occupations at facilities that handle security-sensitive biological agents.

(2) In this clause:
Chemicals of security concern means chemicals specified by the Minister in an instrument in writing for this definition.

Note: The Minister’s instrument will refer to chemicals that have been identified, by the Council of Australian Governments, as chemicals of security concern. Without limiting what the Council might identify the chemicals may include:
(a)Industrial chemicals, including chemicals used in the retail, pharmaceutical or pool and spa sectors, that could be diverted from their lawful use to other purposes such as terrorist-related activities; and
(b)Agricultural and veterinary chemicals that could be diverted from their lawful use to other purposes, including terrorist-related activities.

8552 - Notify change in employment details
The holder must notify the Minister of any changes in the holder’s employment details, not less than 2 working days before the change is to occur.
8553 – Must not be involved in activities prejudicial to security
The holder must not become involved in activities that are prejudicial to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).
8554 – Must not acquire specified goods
(1)       The holder must not acquire any of the following goods:
(a)         weapons;
(b)         explosives;
(c)material or documentation that provides instruction on the use of weapons or explosives.

(2) In this clause:
weapon means a thing made or adapted for use for inflicting bodily injury.

8555 – Obtain approval before undertaking specified activities
The holder must obtain the Minister’s approval before undertaking the following activities, or activities of a similar kind:
(a) flight training;
(b) flying aircraft.

8556 – Must not communicate with specified entities or organisations
The holder must not communicate or associate with:
(a)an entity listed under Part 4 of the Charter of the United Nations Act 1945; or
(b)an organisation prescribed by the regulations made under the Criminal Code Act 1995 for the purposes of paragraph (b) of the definition of terrorist organisation in subsection 102.1(1) of the Criminal Code.

8560 – Obtain approval to acquire chemicals of security concern
(1)The holder must obtain the Minister’s approval before acquiring chemicals of security concern.

(2) In this clause:
chemicals of security concern means chemicals specified by the Minister in an instrument in writing for this definition.

Note: The Minister’s instrument will refer to chemicals that have been identified, by the Council of Australian Governments, as chemicals of security concern. Without limiting what the Council might identify, the chemicals may include:
(a) industrial chemicals, including chemicals used in the retail, pharmaceutical or pool and spa sectors, that could be diverted from their lawful use to other purposes such as terrorist-related activities; and
(b) agricultural and veterinary chemicals that could be diverted from their lawful use to other purposes, including terrorist-related activities.

8561 – Must attend interview if directed
If the holder is directed, orally or in writing, by the Minister to attend, at a specified place, on a specified day and at a specified time, an interview that relates to the holder’s visa (including an interview with the Australian Security Intelligence Organisation), the holder must comply with the direction.
8562 – Must not take up specified employment
(1) The holder must not take up employment in:
(a)occupations that involve the use of, or access to, weapons or explosives; or

(b) occupations of a similar kind.

(2) In this clause:
weapon means a thing made or adapted for use for inflicting bodily injury.

8563 – Must not undertake specified activities
(1)The holder must not undertake the following activities, or activities of a similar kind:
(a)         using or accessing weapons or explosives;
(b)         participating in training in the use of weapons or explosives;
(c)         possessing or accessing material or documentation that provides instruction on the use of weapons or explosives.

(2) In this clause:
weapon means a thing made or adapted for use for inflicting bodily injury.

8612 – Notify details of persons who reside with the holder
The holder:
(a)must, within 5 working days of the grant, notify Immigration of the full name, and date of birth, of each person who ordinarily resides with the holder at the holder’s residential address; and
(b)must notify Immigration of any change in the persons who ordinarily reside with the holder at the holder’s residential address within 2 working days after the change occurs.

8613 – Obtain approval before commencing activities with vulnerable persons
(1)The holder must obtain the Minister’s approval before commencing to perform work, or a regular organised activity, involving more than incidental contact with a minor or any other vulnerable person.

(2) Subclause (1) applies:
(a) whether the work or activity is for reward or otherwise; and
(b)whether or not a working with children or vulnerable people check (however described) is required in relation to the work.

8614 – Notify travel
(1)The holder must notify Immigration of any travel interstate or overseas by the holder at least 7 working days before undertaking the travel.
(2)If the holder does not comply with subclause (1), the holder must notify Immigration of the travel within 2 days after departing on the travel.

8615 – Notify associations and memberships
The holder:
(a)must, within 5 working days of the grant, notify Immigration of the details of the holder’s association with, or membership of, any organisation (other than an organisation formed for a purpose of engaging in communications on governmental or political matters); and
(b)must notify Immigration of any change in those details (including the beginning or end of any association or membership) within 2 working days after the change occurs.

8616 – Notify contact with certain individuals or organisations
(1)The holder must notify Immigration of the details of any contact with the following within 2 working days after the contact occurs:
(a)any individual, group or organisation that is alleged, or is known by the holder, to be engaging in criminal or other illegal activities;
(b)any individual, group or organisation that has previously engaged in, or has expressed an intention to engage in, criminal or other illegal activities.

(2) Subclause (1) does not apply to:
(a)contact in the course of attending a therapeutic or rehabilitative service; or

(b) contact in connection with legal proceedings or legal advice.

8617 – Notify change in financial circumstances
The holder must notify Immigration of each of the following matters within 5 working days after the matter occurs:
(a)the holder receives, within any period of 30 days, an amount or amounts totally AUD 10 000 or more from one or more other persons;
(b)the holder transfers, within any period of 30 days, an amount or amounts totalling AUD 10 000 or more to one or more other persons;

(c) the holder’s banking arrangement change.

8618 – Notify debt or financial hardship
(1)If the holder incurs a debt or debts totally AUD10 000 or more, the holder must notify Immigration within 5 working days after the holder incurs the debt or debts.
(2)If the holder is declared bankrupt or otherwise experiences significant financial hardship, the holder must notify Immigration within 5 working days after the holder is so declared or the financial hardship begins, as the case may be.
(3)The holder must notify Immigration of any significant change in relation to the holder’s debts, bankruptcy or financial hardship within 5 working days after the change occurs.

8619 – Provide evidence of financial circumstances upon request
The holder must, within 7 days after receiving an oral or written request from the Minister, provide evidence of the holder’s current financial circumstances.
8620 – Abide by specified curfew
(1)The holder must, between 10pm on one day and 6am the next day or between such other times as are specified in writing by the Minister, remain at a notified address for the holder for those days.
(2)If the Minister specified other times for the purposes of subclause (1), the times must not be more than 8 hours apart.

(3) in this clause:
Notified address for a holder for a particular day or days means any of the following:
(a) the address notified by the holder under condition 8513 or 8550;
(b)an address at which the holder stays regularly because of a close personal relationship with a person at that address, and which the holder has notified to Immigration for the purposes of this paragraph;
(c)if, for the purposes of this paragraph, the holder notified Immigration of an address for that day or those days no later than 12 pm on the day before that day or the earliest day of those days (as the case may be) – that address.

8621 – Monitoring device
(1) The holder must wear a monitoring device at all times.
(2)The holder must allow an authorised officer to fit, install, repair or remove the following:
(a) the holder’s monitoring device;
(b)any related monitoring equipment for the holder’s monitoring device.

(3)The holder must take any steps specified in writing by the Minister and any other reasonable steps, to ensure that the following remain in good working order:
(a) the holder’s monitoring device;
(b)any related monitoring equipment for the holder’s monitoring device.

(4)if the holder becomes aware that either of the following is not in good working order;
(a) the holder’s monitoring device;
(b)any related monitoring equipment for the holder’s monitoring device; The holder must notify an authorised officer of that as soon as practicable.

8622 – Must not perform work with minors
(1)If the holder has been convicted of an offence that involves a minor or any other vulnerable person, the holder must not perform any work, or participate in any regular organised activity, involving more than incidental contact with a minor or any other vulnerable person.

(2) Subclause (1) applies:
(a) whether the work or activity is for reward or otherwise; and
(b)whether or not a working with children or vulnerable people check (however described) is required in relation to the work.

8623 – Must not approach school or childcare centre
If the holder has been convicted of an offence that involves a minor or any other vulnerable person, the holder must not go within 200 metres of a school, childcare centre or day care centre.
8624 – Must not contact victim or victim family member
If the holder has been convicted of an offence involving violence or sexual assault, the holder must not contact, or attempt to contact, the victim of the offence or a member of the victim’s family.

Annexure 2

Date Of Conviction Court Offence Result

01/04/2020 Ringwood Magistrates Court ASSAULT BY KICKING 7 days imprisonment.

Concurrent with State sentences presently being served.

24/07/2019 Melbourne County Court
KIDNAPPING (COMMON LAW)

INTENTIONALLY CAUSE INJURY

ASSAULT WITH WEAPON

12 months imprisonment

9 months imprisonment, 3 months of sentence concurrent

3 months imprisonment, 1 month of sentence concurrent.

Date(s) of hearing:	10, 13 November 2023
Applicant:	Self-represented
Solicitors for the Respondent:	Ms E Tattersall, Sparke Helmore Lawyers

Date Of Conviction	Court	Offence	Result
01/04/2020	Ringwood Magistrates Court	ASSAULT BY KICKING	7 days imprisonment.
Concurrent with State sentences presently being served.		ASSAULT BY KICKING
24/07/2019	Melbourne County Court	KIDNAPPING (COMMON LAW) INTENTIONALLY CAUSE INJURY ASSAULT WITH WEAPON	12 months imprisonment 9 months imprisonment, 3 months of sentence concurrent 3 months imprisonment, 1 month of sentence concurrent.