DTFQ and Minister for Immigration and Border Protection (Migration)

[2018] AATA 465

DTFQ and Minister for Immigration and Border Protection (Migration) [2018] AATA 465 (5 March 2018)

Division                   GENERAL DIVISION

File Numbers          2017/7548

ReDTFQ  

APPLICANT

Minister for Immigration and Border ProtectionAnd  

RESPONDENT

DECISION

Tribunal                   Senior Member A. Nikolic AM CSC

Date  5 March 2018

Place  Melbourne

The decision of the delegate of the Minister made on 13 December 2017 to refuse to grant the Applicant a Bridging E (Class WE) Visa under s 501(1) of the Migration Act 1958 is affirmed.

[sgd]........................................................................

Senior Member A. Nikolic AM CSC

MIGRATION – bridging visa refusal – failure to pass the character test – convictions for family violence offences – risk of engaging in criminal conduct if allowed to remain in Australia – primary considerations – protection of the Australian community – expectations of the Australian community – impact on family members –protection of the Australian community and the expectations of the Australian community outweigh all other considerations – decision affirmed

Legislation

Family Violence Protection Act 2008 (Vic)
Migration Act 1958 (Cth); ss 499, 500, 501, 501K

Sentencing Act 1991 (Vic); s 83AD

Cases

Aksu v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 667
Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67
Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

Secondary Materials

Minister for Immigration and Border Protection, Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA; 22 December 2014

Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth)

REASONS FOR DECISION

Senior Member A. Nikolic AM CSC

5 March 2018

INTRODUCTION

1. I will refer to the Applicant in these proceedings by the pseudonym ‘DTFQ.’ This accords with sections 501K(1) and (2) of the Migration Act 1958 (the Act), which require that the identity of applicants for protection visas and protection-related bridging visas, as well as their relatives or other dependents, is not to be published by the Tribunal. Accordingly, I directed that the hearing of this matter take place in private and that the publishing or other disclosure of information tending to reveal the identity of DTFQ, his relatives or dependents be prohibited. Certain dates, places, the names of some witnesses, and the names of those who provided references, have also been altered to ensure confidentiality. 

2. DTFQ is a citizen of a Southeast Asian country, who arrived in Australia in 2014 after living for approximately three years in Malaysia. While in Malaysia he reconnected with a woman known to him from his home village and they married in a traditional ceremony.[1] His wife, who I shall refer to in these reasons as ‘P,’ arrived in Australia before him and subsequently sponsored his migration under a Prospective Marriage Visa. They underwent a marriage ceremony under Australian law and DTFQ was granted a Partner Visa. They have no children together, but P has two adult children from a previous marriage.

   [1] Exhibit R1, p.106.

3. Since arriving in Australia four years ago, DTFQ has committed a number of family violence offences. On 1 February 2017 he was issued with a Notice of Intention to Consider Cancellation of his Partner Visa by a delegate of the Minister for Immigration and Border Protection (the Minister). On 14 March 2017, after considering DTFQ’s response, a delegate of the Minister cancelled his Partner Visa. On 1 August 2017 his Bridging Visa ceased and on 21 August 2017 he was detained as an unlawful non-citizen.[2] He has remained in immigration detention since that time.

   [2] Ibid, p.53.

4. On 20 September 2017, while in immigration detention, DTFQ applied for a Protection (Class XA) Visa (Protection Visa). This was also taken to be an application for a Bridging E (Class WE) Visa (Bridging Visa).[3] Approval of the Bridging Visa would have enabled him to reside in the community while awaiting the outcome of his Protection Visa application. On 10 October 2017, DTFQ was issued with a Notice of Intention to Consider Refusal of his Bridging Visa application.[4] He did not respond to the Notice and on 13 December 2017 his application was refused by a delegate of the Minister under section 501(1) of the Migration Act 1958 (Cth) (the Act).[5] The delegate was not satisfied that DTFQ passed the character test, because there was a risk he would engage in criminal conduct if allowed to remain in Australia. Having found that DTFQ did not pass the character test, the delegate further decided to exercise their discretion to refuse to grant DTFQ’s application for a Bridging Visa. By way of application lodged on 19 December 2017, DTFQ sought review of the delegate’s decision to refuse his application.

   [3] Ibid, pp.31-63.

   [4] Ibid, pp.66-70.

   [5] Ibid, pp.26-30

5. The matter before me relates solely to the refusal of DTFQ’s September 2017 application for a Bridging Visa. I note that on 14 December 2017 his application for a Protection Visa was also refused by a delegate of the Minister,[6] but that decision is the subject of separate merits review by the Migration and Refugee Division of this Tribunal.

   [6] Ibid, pp.11-17A.

6. The Hearing of the application for review was heard on 21 and 23 February 2018, with the Tribunal hearing evidence from DTFQ, P, and one of DTFQ’s stepsons. All three witnesses gave evidence to the Tribunal with the assistance of an interpreter. DTFQ was represented at the Hearing by Ms Sarah Fisher, a solicitor with Victoria Legal Aid. The Minister was represented by Mr David Brown, solicitor with the Australian Government Solicitor.

   THE EVIDENCE

   Conduct and Convictions

7. Between February 2015 and January 2017, police were called to eight incidents involving DTFQ. Reports provided on summons from Victoria Police record key aspects of these incidents as follows:

   (a)25 February 2015: ‘The Resp has moved to Australia in Jan 2014. Since then he has been binge drinking…The AFM[7] is yelled at 3-4 times a day by the Resp while he is intox, which is most days. On the 25/2/15, at 7.00pm the Resp has again yelled abuse at the AFM before passing out in the backyard…Resp’s verbal abuse has escalated to the point the AFM no longer feels comfortable sleeping next to the Resp. AFM is fearful that if the Resp is allowed to live at the address and be intoxicated she will be assaulted…Parties attended court and an IVO is now in place allowing the Resp to live at the address.’[8]

   (b)17 September 2015: ‘Active order in place prohibiting Respondent from being within 200m of address when in possession of alcohol or if alcohol affected. AFM called police…as Respondent had been drinking at address. Nil threats and nil violence on this occasion. AFM not fearful but fed up with having to be around Respondent when he is intoxicated…Respondent removed from address and taken to…Police Station…Brief to be prepared for breach of Intervention Order.’[9]

   (c)21 September 2015. ‘…There is a current IVO in place that prohibits the Respondent from being drunk or being in possession of alcohol within 200m of [word redacted]. Police attended and spoke to the son…stated the Respondent is out in the back yard and is drunk….He smelt of intoxicating liquor, blood shot eyes, couldn’t stand properley [sic] and was swaying….Lodged at…Police Station until he sobers up…Police have nil concerns for the safety of the AFM. The AFM…just annoyed thats hes drunk all the time…Noted as 3rd reported incident in past 6 months. Risk assessment conducted and rates as medium. Breach by way of intox with criminal investigation being conducted….’[10]

   (d)8 October 2015. ‘…There is a current IVO in place that prohibits the Respondent from being at the home address when affected by alcohol…On 7/10/2015…the Resp was at the home address and had consumed 2 bottles of wine during the day. The Resp grabbed the AFM’s throat with one hand and held her head with the other hand, the Resp then threatened to kill the AFM saying he would kill her the next day…The AFM is in fear of the Resp as he becomes violent when he is intoxicated and has breached the IVO twice in September 2015 by being intoxicated at the home address…Threats to kill and unlawful assault. Police believe the IVO needs to be varied to prohibit the Resp from having any contact with the AFM to be excluded from the home address at all times to prevent further escalation of violence…Risk assesm completed rated as High…[11]

   In the accompanying Case Progress Narrative, Victoria Police noted that P was subsequently unwilling to make a formal statement relating to any assault or threat to kill.[12]

   (e)8 June 2016. ‘There have been 4 previous incidents…all relating to the Respondents alcohol abuse. There is a full intervention order…This incident occurred when the AFM called police because the Respondent was at their home and he was asleep in the bedroom, extremely alcohol affected…The male was woken up by police and transported to the…Police Station where he was lodged to sober up prior to a remand application. The Respondent has two outstanding warrants, one for failing to appear on summons for breaching the Intervention Order, and the other one is a charge warrant also for breaching the Intervention Order. The Respondent has a long term alcohol addiction problem and he does not respect the alcohol condition on the Intervention Order…’[13]

   (f)3 July 2016. ‘…In the early hours of the 3rd of July 2016 the Respondent has allegedly attended the address asking to be let inside. The AFM stated to Police she has seen the Respondent walking around the front and back yards of the address. The AFM’s son… was also at the address but did not see the Respondent, only hearing noises around the yard…Upon Police arrival the Respondent was not on scene…Found window in one bedroom half open, believed it had been possibly opened by Respondent…Also stated believed the Respondent had turned lights of house off using metre box, but nil signs of tampering…AFM stated she did not wish to make a statement regarding matter at this point…but was considering changing order to stop Respondent from coming to the address at all…Police have…advised AFM to contact court on Monday and apply for variation of order to exclude Respondent from address.’[14]

   (g)27 October 2016. ‘…Son of the Resp. had called Police because he knows that Resp. is not allowed at the address. Nil arguments, nil violence, nil threats. Located at the address by…Police. Field interview conducted and Resp. collected by brother in law and taken to live at….’[15]

   (h)16 January 2017. ‘The Respondent…has come home drunk…The AFM has become upset because the Respondent was intoxicated …The son of the AFM…has told the Respondent to get out of the house because he is drunk……and the AFM no longer wanted him at the house. The Respondent has become upset and left via the front door. The AFM and…have then heard a loud smash and gone to investigate. They have located a brick in the lounge room which had been thrown through the window…Police have attended and observed a person in the driveway who has then gone towards the backyard. After a prolonged search of the area the Respondent was located lying down in the grass at the back of the property. The Respondent was arrested re: Breach IVO and Criminal Damage…This is the 8th incident between parties. Police have applied to have the order varied to a full intervention order and the accused is to be bailed re: Breach Intervention Order and Criminal Damage.’[16]    

   [7] Aggrieved Family Member.

   [8] Exhibit R2, p.148.

   [9] Ibid, p.140.

   [10] Ibid, p.142.

   [11] Ibid, pp.144-145.

   [12] Ibid, p.145.

   [13] Ibid, p.138.

   [14] Ibid, p.146-147.

   [15] Ibid, p.137.

   [16] Ibid, p.135-136.

8. The intervention orders (IVOs) referred to above were issued by the Victorian Magistrates’ Court under the Family Violence Protection Act 2008 (Vic). The first IVO was made on 27 February 2015[17], preventing DTFQ from going to, or remaining within, 200 metres of the marital home unless he was sober. Based on the information outlined above in paragraph 7, DTFQ reportedly breached that IVO on three occasions in the same year. On 12 February 2016, as a consequence of those repeated breaches, a final 12-month IVO was issued with the same restrictions concerning intoxication and proximity to the marital home.[18] Following a further family violence incident on 8 June 2016, DTFQ was held by police on remand. He was convicted the next day in the Magistrates’ Court on three counts of ‘Contravene a Family Violence Intervention Order’ in relation to the 17 September 2015, 21 September 2015, and 8 June 2016 incidents.[19] He was sentenced to a 12-month Community Correction Order (CCO),[20] the conditions of which required DTFQ to undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed, a mental health assessment and treatment as directed, and an offending behaviour program as directed.[21]

   [17] Ibid, p.148.

   [18] Exhibit R1, pp.78-79.

   [19] Ibid, p.82.

   [20] Ibid, pp.82-83.

   [21] Ibid.

9. Following further reported breaches in October 2016 and January 2017, DTFQ was arrested and charged with contravening a Family Violence Intervention Order and causing criminal damage.[22] Police asked the Magistrates’ Court to impose a ‘full intervention order’ because they held ‘concerns for the emotional and physical wellbeing’ of P.[23] DTFQ was subsequently charged under section 83AD(1) of the Sentencing Act 1991 (Vic), with failing, without reasonable excuse, to comply with the conditions of his CCO.[24] This included a failure to undergo treatment and rehabilitation as required on 3 August 2016 and 23 August 2016, as well as a failure ‘to be supervised, monitored and managed as directed on 23/08/2016, 25/10/2016, 26/10/2016, 14/11/2016, 23/01/2017.’[25]

   [22] Exhibit R2, pp.135-136.

   [23] Exhibit R1, p.92.

   [24] Ibid, pp.98-99.

   [25] Ibid, p.99

10. On 20 February 2017, DTFQ was convicted of twice contravening a Family Violence Intervention Order (in relation to the 27 October 2016 and 16 January 2017 incidents) and one charge of Criminal Damage (Intent Damage / Destroy) (in relation to the ‘brick incident’ on 16 January 2017).  As a consequence, a further 12 month CCO was imposed by the Magistrates’ Court. DTFQ was again ordered to undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed, a mental health assessment and treatment as directed, and an offending behaviour program as directed.[26] A further IVO was imposed against DTFQ on 7 March 2017 in the same terms as the 12 February 2016, with an expiry date of midnight on 6 March 2018.[27]

    [26] Ibid, p.100

    [27] Ibid, pp.101-102.

11. On 22 June 2017, P applied to have the IVO revoked on the grounds that her husband had been ‘hit by a car on 7/5/17’ and needed her care.[28] Although documentary evidence was not provided to the Tribunal regarding revocation of the IVO at P’s request, the parties agree it was revoked on or about 18 August 2017, which enabled DTFQ to again reside with his wife. The CCO remained in place until February 2018, noting that DTFQ was taken into immigration detention on 21 August 2017, where he has since remained.

    [28] Ibid, pp.103-105.

    Evidence of DTFQ

12. In his statement dated 25 August 2017, DTFQ contextualises his offending as a result of ‘ongoing fights’ with one of his stepsons.[29] He says his wife sided with her son by calling police and taking out IVOs against him, contending that her primary intent in doing so was to curb his excessive alcohol consumption. He said P wanted to reduce the prospect of violence between DTFQ and her son, because if they ‘both drank, incidents might happen.’ DTFQ submits that when he and his stepson do not drink alcohol, ‘there are no issues.’

    [29] Ibid, p.109.

13. DTFQ accepts he has repeatedly breached IVOs, but says this is because he did not understand the ‘strictness of the laws of Australia which is completely different’ to the law in his home country.[30] During the hearing he stated that he did not take the IVOs seriously and believed they were ‘just a threat.’ Although he tried to comply with orders of the court, he claims to have forgotten about the conditions attached to CCOs and IVOs, suggesting it would be ‘a good idea to have constant reminders about the intervention orders.’ DTFQ says he did not initially think it was ‘such a big crime not to comply with an intervention order.’ While able to recite the conditions attached to CCOs and IVOs taken out against him, he cavilled in his oral evidence about the need for police attendance at all:

    ‘Whenever I am drunk the police are always called…It is normal to have an argument between husband and wife – what have I done that was so wrong for police to be called…She always seeks the police first without trying to resolve with me…I tell her to stop calling the police for every little thing…Every little issue we argue about she calls the police…It was just bickering between us. It feels like I am being made out to be the worst criminal ever and that is not true… …she only wants to stick to her own opinion and call the police – the police are always there.’

    [30] Ibid.

14. When asked about the reference in police reports about his being ‘drunk most days,’ DTFQ said it was not something he could ‘clearly remember.’ He opined that some people may have embellished details about his conduct, because they spoke English and made him out to be ‘the bad guy’ to justify calling police. DTFQ claimed not to remember many details about his conduct because of the passage of time or because he was drunk. When pressed about references in police reports to his abusive and violent conduct, DTFQ stated: ‘if that is what is written it must have happened.’ Notwithstanding that concession, he often portrayed his conduct in a defensive light, stating ‘I am a friendly drunk, but if other people aggravate me, I have to defend myself…I am not a threatening person when I am drunk.’ He characterised frequent conflict with his wife as ‘small disagreements’ and denied that he was drunk on a number of occasions detailed in police reports, contending that others had misinterpreted his level of inebriation.

15. When asked about details relating to the initial police callout on 25 February 2015, DTFQ initially said he could not remember, but later conceded he ‘may have shouted some words’ at P. When asked about the police report dated 7 October 2015, referring to him grabbing P by the throat and threatening to kill her, DTFQ stated:

    ‘I never grabbed her like that or threatened to kill her…If I wanted to kill my wife I would have done it there and then – I wouldn’t have threatened it.’

16. In relation to the incident where he breached an IVO and threw a brick though the window of his wife’s home, he elaborated upon his conduct that day, stating inter alia:

    ‘I was not drunk – I’d had a few drinks on an empty stomach and the smell of alcohol must have been very strong because of that…They might have thought I was drunk…Even a cup of wine can make you smell as if you are drunk…I wasn’t there to create trouble…I assumed the intervention order was finished… After I was told to leave I did, but wandered back after a while thinking if they left the kitchen door unlocked I could get something to eat…I thought it was a good idea to break a window, let myself in, have a meal and change my clothes. I used a brick but couldn’t control it and it went inside. I heard people screaming and was very shocked. I was planning on breaking the window quietly…When the police came I approached them.’

1. Aspects of DTFQ’s evidence are inconsistent with the police report and implausible in light of other evidence adduced during the hearing. For example, his contention that he approached police when they arrived is contradicted by the police report, which states:

   ‘After a prolonged search of the area the Respondent was located lying down in grass at the back of the property. The Respondent was arrested…’[31]

   [31] Exhibit R2, p.135.

2. When asked why the police report contained the adverse details it did, DTFQ said he was drunk and had answered questions quickly, irrespective of whether his answers ‘were true or not, just to make the questioning finish.’ When pressed to elaborate on his conduct, DTFQ conceded that because of his drinking ‘he may have gone overboard and put some threatening words into it,’ but was adamant he had never touched P: ‘Even when I’m angry, my palm has never touched her – never.’  He said ‘apart from these arguments [he and P] have no other marital issues.’ In response to subsequent questions he said:

   ‘I don’t know what happened – maybe I was aggressive…perhaps I threatened my wife, perhaps I acted inappropriately…It happened a long time ago – I find it very hard to recollect what happened.’

3. DTFQ stated that he has attended court whenever required and ‘followed all directions.’ He said he understood the conditions in the IVOs and CCO’s made against him and had signed the IVOs to that effect. Although he had ‘tried to attend all appointments’ relating to his CCO, he said that sometimes he ‘had other [unspecified] appointments,’ but always informed those managing his CCO why he failed to attend. When it was pointed out that his failures to comply with CCO conditions had resulted in a formal charge,[32] he insisted that he had ‘willingly followed all orders by Corrections Victoria,’ but couldn’t remember why he didn’t attend some appointments. He contends that he would never willingly fail to attend an appointment, explaining that on one occasion he ‘was drinking at a pub and was arrested, so was unable to attend.’

   [32] Exhibit R1, pp.98-99.

4. DTFQ submits that he now realises IVOs are necessary to stop violence and protect families. He contends that this realisation occurred ‘after [his] visa was cancelled and [he] became an illegal person.’ He now regrets non-compliance with the IVOs, submitting that he is ‘happy with Australian law and fully accepts Australian law.’ He expresses remorse for his offending, acknowledging he was at fault even if he could not remember the precise circumstances of many incidents. Despite previously being unaware of the seriousness of his conduct under Australian law, he said he would ‘try [his] best not to commit offences again.’

5. In relation to how the application to revoke his IVO following a car accident in May 2017 came about, DTFQ gave conflicting evidence. He initially stated that friends of his wife told her that lifting the IVO would ‘improve [DTFQ’s] visa status’ and assist his ability to remain in Australia. He then changed his evidence to the effect that it was not friends of his wife, but his own friends who advised him about the implications of the IVO on his visa status, after which he decided to ‘have a discussion with [his] wife.’ When asked about the nature of the discussions he had with P, DTFQ sought to again amend his evidence. I advised DTFQ about my concerns regarding the reliability of his evidence, given the frequent changes and withdrawal of evidence adduced just minutes earlier. In response to further questions about why P chose to seek revocation of the IVO, DTFQ stated it arose from discussions he had with his wife:

   ‘We were discussing IVOs and what the serious consequences might be. She realised that she had sought the IVO without full understanding of the implications. She did not wish the IVO to cause this amount of trouble. I discussed with her the implications for my visa…to withdraw the IVO and if she withdraws, I would have more motivation to stop drinking. And if she was more faithful to her religion, it might also help me stop drinking.’

6. DTFQ attributes his excessive consumption of alcohol to Australia’s drinking culture, which he liked, and because he found it so easy to access alcohol after arriving here. He previously consumed rice wine in his country of citizenship, but contends alcohol was much harder to access and he had never been intoxicated prior to arrival in Australia. He submits that ‘some alcohol is good for the body, but not in excess.’ During his first year in Australia, DTFQ said he received many invitations to dinners and social events to welcome him, where it was expected he would consume alcohol. When asked to elaborate, DTFQ explained that if he only drank soft drink, he ‘would feel isolated.’ He said there were not many times during his first year in Australia that he was intoxicated and had only consumed alcohol on ‘perhaps 10 occasions.’ He said that when he got drunk he ‘became friendlier and nicer’ and did not like getting into arguments. DTFQ described himself as ‘an unlucky drinker,’ submitting that when he consumes alcohol, ‘something always happens.’

7. DTFQ’s step-son and the President of his ethnic community in Melbourne contend in their statements that DTFQ no longer consumes alcohol.[33] In his statement, DTFQ claims to have ‘stopped drinking’ after the first CCO with the help of his Pastor.[34] That evidence was contradicted by DTFQ’s oral evidence, where he claimed to be ‘drinking significantly less’ once the IVO had been lifted and he resumed living together with P. He states that after this time, if he ‘drank too much [he’d] stay at a friend’s house.’ He said that when P was hospitalised in March 2017, he had reduced his drinking significantly and ‘was drinking solely to relax.’ DTFQ also claims to have completed ‘numerous alcohol rehabilitation programs,’ but no objective evidence was provided to the Tribunal in this regard. He expresses an aspiration to abstain from alcohol in the future, seeing it as the root cause of his offending. But it is clear from the evidence that he only stopped consuming alcohol after being taken into immigration detention. He submitted that if his visa was approved, he intends to ‘overturn all of his personality and behaviours and change his life by quitting drinking, improve his faith and find a stable job.’

   [33] Ibid, p.113-114.

   [34] Ibid, p.109.

8. When asked whether his comments about employment referred to a specific job offer, DTFQ confirmed he has never been in paid employment since arriving in Australia. He said this was because he initially prioritised learning English, but submitted that his English studies and efforts to secure employment were impeded by the imposition of IVOs and CCOs. He said if the IVOs had not been imposed, he would have suffered less stress and anxiety, completed his studies, and found a job. He submits that if allowed to remain in Australia, he planned to learn English and ‘work for the rest of [his] life.’      

9. DTFQ submits that his wife is ‘often weak and unwell’[35] inhibiting her ability to work, lift and undertake a full range of household duties. He also claims to suffer residual symptoms after being run over by a car on 7 May 2017, resulting in nine broken ribs and multiple skull fractures. He claims to become dizzy when raising his head suddenly, experiences symptoms at night and when it is cold, and suffers ‘hardened stools from time to time.’ I note a letter from the Epworth Hospital stating that DTFQ had been involved in a motor vehicle accident on 7 May 2017, where he sustained the following injuries:[36]

   . Left 9^th rib fracture with flail and TX

   . Laceration left arm

   . Laceration back of scalp

   [35] Ibid, p.109.

   [36] Ibid, p.112.

10. No objective evidence was tendered to support DTFQ’s contention that he suffered nine broken ribs or multiple skull fractures, or in relation to the nature of P’s medical conditions, or any limitations arising from them. In response to my question, Ms Fisher confirmed that these claims are solely reliant on the oral evidence of DTFQ and his wife.

11. In relation to the possibility of being returned to his country of citizenship, DTFQ said he possesses no identification documents and would therefore not be accepted. He claims to have left in 2010 with the intention of never returning, and fears imprisonment because he deserted from Army service a day after being forcibly enlisted. He said that soldiers in his home country are treated ‘like animals’ and that ‘enlistment means to die on the front line in battle.’ He feels lucky to have escaped and contends the Army is ‘still searching’ for him, which makes him fearful about being returned. When asked to reflect on the changes in his home country during the last seven years, DTFQ said that any changes are only superficial and improved roads and infrastructure did not change the fact that the Army still had power over the government. When asked to elaborate on any specific activity by the Army or other groups in his home province that underpins his fears, DTFQ did not refer to any specific activity, stating that he nevertheless feels: ‘…very afraid – the Army has not changed its ways.’ 

12. In relation to the prospect of being returned to his home country DTFQ said his parents had passed away and he was not in contact with his sister. He submits there is no home for him to return to and he is concerned about being ostracised because people would identify him as ‘the guy rejected by Australia.’ 

    Evidence of DTFQ’s Wife (P)

13. P submitted a statement in support of her husband,[37] gave evidence at the hearing with the assistance of an interpreter, and was cross-examined. I found her to be an impressive witness overall whose evidence was heartfelt, but at times erred on the side of an overly-generous interpretation of her husband’s offending and misconduct. She has encountered significant adversity in her life, but nevertheless displays a determined and forgiving nature. She has made the best of her circumstances in Australia and has regularly worked since arriving here. That includes work in a plastics factory soon after arriving in Australia, an 8-9 month job in a flower nursery, and work in a furniture factory until May-June 2017. Although she is currently on unemployment benefits, she displays a strong work ethic and a positive disposition. 

    [37] Ibid, p.117.

14. Notwithstanding the tumultuous nature of her relationship with DTFQ, P submits that as a widow, she became a ‘happier woman’ after marrying him. In the first year after her husband’s arrival in Australia, she says he ‘couldn’t control himself’ and always exceeded his drinking limits. In the 2-3 years after that, she says he reduced the amount he drank, but ‘when he does drink, he goes back to being a drunk.’ She says her husband’s alcohol abuse resulted in fights between him and her son. Her intent in seeking police assistance and taking out IVOs against him, was ‘to help him stop drinking’ and reduce the prospect of conflict within the family.  

15. When asked if her husband had been physically violent towards her, P initially replied: ‘He’s never touched me…it’s just his drinking that I object to.’ When asked about the police report stating her husband grabbed her by the throat and threatened to kill her, she said that while pushing her intoxicated husband out of the house, he may have placed his hands near her throat. She insisted, however, that he had done so in a ‘self-defence way.’ When pressed about the threat to kill her referred to in the police statement, she agreed that DTFQ’s conduct worsened in response to her repeated requests that he abstain from alcohol, and on the occasion in question had threatened her:

    The more times I tell him to quit [drinking alcohol] the worse the abuse got…He said ‘If you don’t let me live with you and keep kicking me out, I will kill you.’

16. P explained that at the time he made this threat, however, her husband was ‘drunk, hungry and upset’ and ‘would never intentionally say those words with a clear mind.’ She could not recall if an interpreter was in attendance when police questioned them. She also provided context about her husband’s breaching of an IVO and breaking a window at their home on 17 January 2017, which was because he was hungry and occurred after she had locked the doors and told her sons not to let him in.

17. P says she sought revocation of the IVO and started living with her husband again after his car accident and when she considered he had ‘stopped drinking completely.’ She said he was ‘quite sad’ in March 2017 after his Partner Visa was cancelled and had expressed an intention to totally abstain from alcohol. Her evidence, however, was that although ‘he drank less,’ he did not abstain from alcohol. When asked if she had seen him intoxicated after they reconciled, she stated: ‘I didn’t see him drunk because I was working.’ She says her husband’s car accident has had a salutary effect on him, convincing her that he intends to change his life. She claims he has apologised to her for his past misbehaviour and as a Christian, she has ‘high hopes and high faith’ that he will abstain from alcohol in the future and ‘fix his misbehaviour.’ She said their Pastor had visited DTFQ in immigration detention.

18. P claims to be ‘physically very ill and weak with various illnesses all the time,’ which required an operation in March 2017. No objective evidence was tendered to support her contention, with the exception of a Patient Reminder Card for Mirena™,[38] which is used as a contraceptive or to reduce the effect of heavy periods. P contends that her husband is the only person who can look after her when she is sick, because her two sons are now married and have their own families.

    [38] Exhibit A1.

19. P says her husband cannot return to their home country because he has no ID and his ‘life is threatened.’ When asked to elaborate, she said the Army had made him do unpaid work, oppressed him, and enlisted him against his will. She contends they confiscated his ID and still have his signed letter of enlistment, making it ‘very dangerous’ for him to return. She fears he could ‘be imprisoned or killed’ because the Army continues to search for him. When asked how she knew they continued to search for him, P replied: ‘I don’t know definitely, I am guessing.’ P agreed there was no fighting in their home state, but claimed that soldiers in the small villages ‘do what they want.’ When asked what she based those views on, P said she got her information primarily from the news, social media, and telephone calls with friends. She claimed that while new infrastructure has been built in their home state, there have been ‘no actual changes socially where a citizen can have advantage.’ She said her husband’s parents were deceased and he had not contacted his sister since arriving in Australia. Moreover, she submits that his parent’s house had been demolished in a landslide and if he were returned, would have nowhere to live. She states that without her husband in Australia, ‘life would be unbearable.’ When asked about her intentions if her husband could not remain in Australia, P stated she would return with him to their country of origin.

    Evidence of DTFQ’s Stepson

20. I have had regard to an unsigned letter from DTFQ’s adult stepson, stating that DTFQ ‘is a good, kind and…peaceful man.’[39] He submits that DTFQ has never hit P nor been ‘violent to her in any manner’, that he has stopped drinking alcohol, and never gave the family ‘any problem…while [they] were living together.’ The stepson gave evidence at the hearing with the assistance of an interpreter and was cross-examined. During his oral evidence, he stated ‘there are lots of times where [DTFQ] looks intoxicated, but I’m not sure if he is or not.’ He agreed that he had called the police at his mother’s request on a number of occasions in response to DTFQ’s behaviour, but claimed not to have observed any aggressive conduct by DTFQ. In relation to the window breaking incident, he said he was neither shocked nor surprised when the brick was thrown into the home, and had not heard his mother screaming. When pressed, he stated ‘I can’t recall small incidents,’ and described the nature of the conflicts as ‘just between my mother and stepfather.’ 

    [39] Exhibit R1, p.114.

21. I reject much of the evidence of DTFQ’s stepson based on convincing evidence to the contrary, particularly the police reports. His evidence that DTFQ ‘no longer drinks alcohol’ is contradicted by DTFQ himself. His evidence that DTFQ has never given the family ‘any problems’ and has never been ‘violent [to P] in any manner’ is implausible. 

    References in Support of DTFQ

22. I have had regard for a reference in support of DTFQ from his Pastor,[40] who did not give evidence at the hearing and was not cross-examined. The reference predominantly addresses the difficulties DTFQ would encounter if returned to his home country. No evidence was tendered in relation to what specific knowledge the Pastor has about current circumstances in DTFQ’s country of citizenship or how he has assessed the risks to DTFQ. In particular, it is unclear why Army authorities may respond so forcefully to what appear to be the unremarkable circumstances of someone who claims to have fled in 2010 after a single day of forced enlistment. The Pastor’s letter also does not reflect specific knowledge of DTFQ’s offences and misconduct, although he may be referring to these matters in the following sentence: ‘[DTFQ’s] family had been gone through family issues’ (sic). The Pastor also makes no reference to the critical issue of DTFQ’s alcohol abuse. In this regard, the Pastor’s letter understates the nature of DTFQ’s conduct and fails to address the primary catalyst for his offending. Without reflecting at all on the sincerity of the Pastor’s reference, I place little weight on his letter.

    [40] Ibid, p.111.

23. I have had regard for a reference provided in support of DTFQ by the President of his ethnic group in Melbourne, who did not give evidence at the hearing and was not cross-examined.[41] The President describes DTFQ as ‘a decent, hardworking and trustworthy person.’  He refers to DTFQ as previously having a ‘drinking problem’ resulting in an IVO, but that ‘he quit drinking and has been sober for three months.’ This reference is very general in nature and does not reflect the scope and seriousness of DTFQ’s conduct. It also does not correlate with DTFQ’s evidence that he continued to drink alcohol until being taken into immigration detention. It is submitted in this letter that DTFQ ‘will face persecution and…be put in jail’ if returned to his country of citizenship. Again, no evidence was tendered regarding any specific knowledge the author has about current circumstances in DTFQ’s home country, and why he assesses DTFQ will be jailed and persecuted. Without reflecting at all on the sincerity of the President’s reference, I place little weight on his letter.

    [41] Ibid, p.113.

    LEGISLATIVE FRAMEWORK

24. The jurisdiction of the Tribunal to review the decision made by the Minister’s delegate is provided for at section 500(1)(b) of the Act.

25. Section 501(1) of the Act is one of a number of discrete powers conferred under section 501. It gives the Minister the power to refuse to grant a visa, if the person who has applied for a visa does not satisfy the Minister, or their delegate, that they pass the character test.

26. The character test is defined at sections 501(6) - 501(12) of the Act and refers to a range of character matters that the Minister or their delegate may have regard to in deciding whether to refuse or cancel a visa (or revoke a mandatory cancellation of a visa). DTFQ’s Bridging Visa application has been refused on the basis of section 501(6)(d)(i), which states a person does not pass the character test if:

    (d)in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

    (i)        engage in criminal conduct in Australia; …

1. If I find that DTFQ fails the character test, I must then determine whether the discretion under section 501(1) of the Act to refuse his visa should be exercised.[42] Guidance in exercising the discretion is found in Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (the Direction).

   [42] The Federal Court has reinforced the importance of adhering to the two-step process mandated by section 501 of the Act. See for example: Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67 at 69 (Edmonds J); Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113 at 119 (Nicholas J, Moore and Rares JJ agreeing); Aksu v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 667 at 674 (Dowsett J), quoted with approval in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 at 523 (Kiefel and Bennett JJ).

   DIRECTION No. 65

2. The Minister is empowered by section 499 of the Act to issue the Direction, with section 499(2A) mandating that the Tribunal must comply (Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J). Paragraph 6.1 of the Direction sets out the following objectives:

   6.1      Objectives

   (1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

   (2) Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.

   …

   (4) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.

3. By way of general guidance, paragraph 6.2 of the Direction provides:

   6.2      General Guidance

   (1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

   (2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.

   (3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501…

4. The principles referred to under General Guidance are reproduced below and constitute a framework within which decision-makers must apply the considerations in Parts A, B, or C of the Direction:

   6.3      Principles

   (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) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

   (3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

   (4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

   (5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

   (6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

   (7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

5. Paragraph 7(1)(a) of the Direction states that a decision-maker ‘…must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa.’ Part B is the relevant Part of the Direction for this application as it contains the considerations relevant to the refusal of an application of a visa. Paragraph 8(1) of the Direction explains that the considerations in Part A and Part C for existing visa holders and in Part B for visa applicants are different:

   Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

6. If it is determined that DTFQ does not pass the character test, three primary considerations at paragraph 11(1) of the Direction must be applied to the specific circumstances of his case:

   a)Protection of the Australian community from criminal or other serious conduct;

   b)        The best interests of minor children in Australia;

   c)        Expectations of the Australian community.

7. Paragraph 12(1) of the Direction requires that the other considerations be taken into account in deciding whether to cancel a visa, include but are not limited to:

   a)        International non-refoulement obligations;

   b)        Impact on family members;

   c)        Impact on victims;

   d)        Impact on Australian business interests.

8. Paragraph 8(4) of the Direction states that ‘Primary considerations should generally be given greater weight than the other considerations.’ Paragraph 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’

   ISSUES

9. The issues to be resolved in this case are:

   (a)whether DTFQ passes the character test set out in section 501(6) of the Act; and

   (b)if not, whether the discretion in section 501(1) of the Act to refuse to grant a visa should be exercised, after applying the considerations at Part B of the Direction to the specific circumstances of his case.

   DOES DTFQ PASS THE CHARACTER TEST?

10. It is argued on behalf of the Minister that DTFQ does not pass the character test because if he were allowed to remain in Australia, there is a risk he would continue to engage in criminal conduct. In assessing risk, the High Court observed in Minister for Immigration and Ethnic Affairs v Guo[43] (Guo) at 574-575 that:

    ‘The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.

    The terms of the Explanatory Memorandum for the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth), which amended section 501(6)(d)(i) of the Act, informs consideration of Parliament’s intent regarding this provision. The Explanatory Memorandum states that ‘the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.’ It follows that in order to satisfy the statutory test, a finding that there is a ‘real’ or ‘likely’ risk is needed, rather than a risk that might be considered remote.

    [43] (1997) 191 CLR 559

11. I have given regard to DTFQ’s submissions and those of his solicitor regarding the context of his conduct and offences. I acknowledge that he has not been imprisoned in Australia as a consequence of his convictions, and have had regard for the positive comments made about him by P, his stepson, pastor and the president of his local ethnic group. I also note it is not necessary for the purposes of a visa refusal under section 501(1) of the Act that the conduct relied upon by the Minister must result in imprisonment. The Direction enables a broader assessment of a person’s character.

12. DTFQ’s frequent and persistent offending over a two year period has occurred in circumstances where he has frequently been affected by alcohol, and while IVOs and CCOs were in place to protect his wife and moderate his unacceptable behaviour. He has nevertheless re-offended and failed to comply with orders of the court. I am satisfied that he does not pass the character test on the basis that there is a risk he will engage in similar criminal conduct if allowed to remain in the Australian community. Having made that finding, I must make a supervening determination on whether or not to exercise the discretion granted under section 501(1) of the Act to refuse to grant his Bridging Visa. This requires application of the considerations in Part B of the Direction to the specific circumstances of DTFQ’s case.

    PRIMARY CONSIDERATIONS

    Protection of the Australian community from criminal or other serious conduct

13. Paragraph 11.1 of the Direction states:

    When considering protection of the Australian community, decision-makers should have regard to the principle 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. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. 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.

14. Paragraph 11.1.1 sets out factors to be considered in determining the nature and seriousness of a non-citizen’s offending or other serious conduct to date. In considering DTFQ’s conduct, the following extracts from paragraph 1.11.1 are relevant:

    a)The principle that, without limiting the range of offences that may be considered serious, violent and / or sexual crimes are viewed seriously.

    b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled)…are serious;

    …

    e)        The sentence imposed by the courts for a crime or crimes;

    f)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

    g)        The cumulative effect of repeated offending;

    ...

    The nature and seriousness of the conduct

15. DTFQ’s conduct and convictions encompass domestic violence and must be regarded as serious. DTFQ acknowledges the serious nature of his offending,[44] but contends the conflict with his wife is in the nature of ‘normal arguments’ and he has never ‘laid hands’ on her. This evidence is contradicted by police reports as follows:

    (a)A police report dated 25 February 2015 states DTFQ verbally abused P on 3-4 occasions a day and was reportedly intoxicated on most days. Police noted the verbal abuse had escalated to the point where she no longer felt comfortable sleeping next to DTFQ and was fearful of being assaulted.

    (b)A police report dated 8 October 2015 notes that DTFQ grabbed P by the throat with one hand and held her head with the other hand, threatening to kill her the next day. P told police she feared DTFQ’s violent conduct when intoxicated. As a consequence of her fears and in order to further protect her, police considered the IVO needed to be varied to prohibit DTFQ from having any contact with P and to be excluded from the home address at all times. Police assessed the risk arising from DTFQ’s conduct at this time as ‘High.’

    (c)A police report dated 16 January 2017 notes DTFQ was again intoxicated and in breach of an IVO when asked by his stepson to leave the family home. DTFQ subsequently threw a brick through the lounge room window and was found by police lying down in the grass at the rear of the property.

    [44] Applicant’s submissions dated 25 January 2018, p.3.

16. In light of the conflicting evidence between the police reports, DTFQ and his wife, I place more weight on the records obtained under summons from Victoria Police. In circumstances where police were repeatedly called to provide assistance and deal with the unwanted consequences of DTFQ’s behaviour, I consider their reports most accurately reflect what occurred during these incidents. These reports are preferable to the evidence of DTFQ, who could not remember many of the incidents, or the evidence of P, whose reflections were at times inconsistent with what police had recorded from her in the aftermath of these incidents, or DTFQ’s stepson whose evidence was implausible for the reasons previously adduced.  

17. Contrary to DTFQ’s contention that he has never physically assaulted his wife, I find that his conduct has been serious, repetitive and at times violent. I am satisfied that the cumulative effect of his repeat offending over an approximate two-year period has caused fear for his family, particularly his wife. Eight alcohol-related incidents during this period have resulted in police becoming increasingly concerned for P’s safety, causing them to increase their assessment of the risk posed by DTFQ’s conduct from medium to high. The courts have issued IVOs and CCO’s, which DTFQ has either disregarded or partially complied with. The last incident occurred in January 2017 and it was only after his Partner Visa was cancelled on 14 March 2017 that DTFQ says he began to take the consequences of his offending seriously.

18. There is evidence of increasing seriousness in DTFQ's offending after the initial family violence incident on 25 February 2015. His wife describes a pattern of verbal abuse, which by 8 October 2015 was reported to Police as an unlawful assault and a threat to kill her. At the hearing, P confirmed that DTFQ’s verbal abuse towards her became worse the more she asked him to stop consuming alcohol. She also stated that while intoxicated on 8 October 2015, DTFQ had stated to her:

    ‘If you don’t let me live with you and keep kicking me out, I will kill you.’

19. DTFQ’s persistent breaches of IVOs continued into 2017. On 16 January 2017 he became upset while again breaching an IVO and threw a brick through the lounge room window of his wife’s residence. He was subsequently charged and convicted of criminal damage. The evidence shows that DTFQ has consistently shown no respect for the IVOs made to protect P, nor fully complied with court-ordered rehabilitation and treatment. His conduct enlivens consideration of paragraph 6.3(6) of the Direction, which states that remaining in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been, law-abiding:

    Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

20. Given the nature of DTFQ’s conduct, repeat offences and failure to comply with corrective penalties, I find he has not acted in a way that reflects an appropriate understanding of his responsibilities as an Australian visa holder and visa applicant. DTFQ’s submission that his conduct reflects unfamiliarity with Australian law might be accepted for a first and perhaps a second domestic violence incident, but not for the six incidents that followed.

    Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

21. Paragraph 11.1.2 of the Direction states in part:

    (1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle 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 likelihood that it may be repeated may be unacceptable.

    ...

    (3)In considering the risk 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 reoffending; and

    ii.evidence of any 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); and

    iii.        the duration of the intended stay in Australia.

    (4)Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short stay visa.

1. DTFQ accepts that his offending is always linked to over-consumption of alcohol and expresses an aspiration to abstain in the future. The likelihood of him engaging in similar criminal or other serious conduct, therefore, is linked to an assessment of whether he might again abuse alcohol. Ms Fisher states that DTFQ no longer posed a risk from the time he and his wife resolved their differences and recommenced living together after his release from hospital in June 2017. She contends that DTFQ’s circumstances changed so profoundly after his car accident that he was determined to stop drinking, rendering any risk of re-offending negligible. Ms Fisher also submits that the principal victim of DTFQ’s offending is his wife and there is no evidence of risk to the community at large. She states the type of harm that can be discerned from DTFQ’s offending is at the ‘lower end of serious,’ and there is no evidence that his wife has suffered any physical or psychological effects from her husband’s conduct.

2. Ms Fisher submits that DTFQ and P want to be together again and rely on each other in a way that might be characterised as ‘mutual interdependence.’ She contends he has shown real insight into what future intoxication might mean for those around him and is determined to change his ways. She describes him as ‘not an educated man,’ who has nevertheless ‘drawn a line in the sand,’ who shows a real commitment to his marriage, displays more than a reasonable understanding of IVOs, has benefitted from an ‘education of sorts’ from his experiences with Corrections Victoria and detention, and has had six months to think about the consequences of his previous behaviour.

3. Mr Brown contends that the risk of DTFQ re-offending is unacceptable. He highlights that DTFQ’s offending began within approximately a year of arrival in Australia and, within two years, police had developed a heightened concern about the safety of P to the point of seeking a full intervention order. Mr Brown submitted that DTFQ’s CCO only ceased around the time of this hearing, and insufficient time had passed to enable reliable judgements about whether he has effectively repaired his marriage and broken the nexus between alcohol abuse and his offending behaviour. In that regard Mr Brown said DTFQ’s Partner Visa was cancelled in March 2017, he was then hospitalised in May 2017, released from hospital in June 2017, and the application to revoke the IVO had only been granted in August 2017, which was just prior to DTFQ being taken into immigration detention on 21 August 2017 as an unlawful non-citizen. Mr Brown contends that an approximate two-and-a-half month period since his release from hospital was insufficient time to reliably conclude that DTFQ would not repeat the conduct and offences for which his character had been called into question. This was particularly the case given his ambiguous responses regarding alcohol consumption after returning home to live with his wife, and his continuing belief that his wife should not have sought police assistance.   

4. In considering these opposing views, Paragraph 11.1.2(3)(b)(ii) of the Direction requires that I have regard for any evidence of rehabilitation. DTFQ contends that he has undertaken ‘numerous’ alcohol rehabilitation programs, for which there was no independent evidence provided. The only evidence before me relates to his contravention of a CCO without reasonable excuse, encompassing a failure to undergo treatment, rehabilitation and supervision ordered by the Courts. Moreover, DTFQ gave evidence that he continued to consume alcohol after reuniting with P, but if he drank too much, had sufficient insight to stay at a friend’s place. While respecting P’s strong faith that her husband will successfully abstain from alcohol in the future, the evidence does not reliably support such a finding. Indeed it shows that DTFQ has not fully engaged with rehabilitative requirements directed by the courts and continued to consume alcohol until taken into immigration detention. It is not possible to conclude that he has effectively broken the nexus between alcohol misuse and his offending behaviour. The prospect of him continuing to abuse alcohol in the future and committing further criminal offences remains very real as a consequence.  

5. In his oral evidence at the hearing, DTFQ repeated the contention in his written statement that he has not harmed P. I do not accept that contention. His submissions and equivocations to the contrary demonstrate that he is not prepared to fully accept responsibility for his previous conduct. I am unable to safely conclude that he will not engage in further family violence offences if allowed to remain in Australia. The consequent risk of harm arising from such conduct is more than minimal or remote, extending not only to P, but to those responsible for managing the consequences of DTFQ’s offending and anti-social behaviour. This is a significant opportunity cost borne by the police, the courts, and those who try and ensure compliance with IVOs and CCO’s. DTFQ’s serious and repetitive offending cannot be considered an isolated act of misconduct reflecting a lack of ‘education, poor English and [a]…limited understanding of the Australian law system’[45] as DTFQ contends. It instead reflects a pattern of unacceptable conduct and offending that gives rise to real concerns about his future risk of re-offending if allowed to remain in Australia.   

   [45] Exhibit R1, p.109.

6. The Tribunal must further, under paragraph 11.1.2(3)(b)(iii) consider the duration of DTFQ’s intended stay in Australia. Although the matter before me relates to a Bridging Visa application, DTFQ’s intentions in the long term are to remain permanently in Australia. 

7. The specific circumstances of this case reveal more than a minimal or remote chance that, if allowed to remain in Australia, DTFQ would continue to abuse alcohol and commit the sort of family violence offences for which his character has been called into question. I find that risk is unacceptable. In reaching this conclusion, I note the risk assessment undertaken by Victoria Police in September 2015, which determined the risk arising from his conduct at that time was assessed as ‘Medium.’[46] In October 2015 a further risk assessment undertaken by Victoria Police showed it had risen to ‘High.’[47] Within an approximate two-year period of offending, police concerns were such that they considered it necessary to seek a full IVO to provide for P’s safety.  DTFQ now submits there is no prospect of his re-offending if allowed to stay in Australia. I do not accept that submission because of the repeat nature of his offending, his failure to abide by the court’s corrective penalties, and his continuing belief that his conduct was undeserving of police involvement.

   [46] Exhibit R2, p.142.

   [47] Ibid, p.145.

8. The evidence supports a finding that DTFQ has been unable to control his alcohol abuse and the anti-social conduct arising from it. Given he was detained as an unlawful non-citizen in August 2017, and the CCO against him did not expire until February 2018, I am unable to find that DTFQ has spent sufficient time in the community to demonstrate he has overcome the alcohol abuse that is a catalyst for his offending. There is a real risk that DTFQ would again engage in criminal conduct if permitted to remain in Australia. Considering the factors set out above, I am persuaded that the primary consideration of the protection of the Australian community from criminal or other serious conduct, weighs strongly in favour of refusing to grant DTFQ a visa under s 501(1) of the Act.

   Best interests of minor children in Australia

9. On the evidence before me, there are no minor children in Australia whose interests are relevant to DTFQ’s case.[48] I therefore find that this primary consideration does not weigh in favour of or against the refusal of DTFQ’s application for a visa.

   [48] Ibid, p.106.

   Expectations of the Australian community

10. Paragraph 11.3 of the Direction states:

    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.

11. In light of DTFQ’s repetitive offending, Australians would not be sympathetic to his circumstances as a visa holder and applicant, who has made no discernible community contribution since arriving here in 2014. The community would be particularly concerned about his repetitive family violence offences requiring eight police attendances, at least one occasion where police reported an assault, at least one occasion of criminal damage, and the police assessment that a full IVO was required. The Australian community would likely be sympathetic to P, who has worked hard since arriving in Australia, has attempted to align DTFQ’s conduct with societal norms, and wants to build a more productive life together in Australia. The community may have mixed feelings in this regard, however, given DTFQ’s previous conduct towards P.

12. DTFQ’s evidence that he did not take the IVO’s or CCO’s seriously enough until cancellation of his Partner Visa, also does little to engender sympathy for his circumstances. The Australian community would consider that insufficient time has passed since DTFQ recommenced living with his wife in June 2017, which was only a short period prior to being taken into immigration detention in August 2017, to conclude that he has effectively broken the nexus between his alcohol abuse and offending behaviour. It should be noted in that regard that a CCO imposed by the courts in response to DTFQ’s offending did not expire until February 2018.

13. It would be of particular concern to the community that the evidence from DTFQ and others that he had ‘stopped drinking,’ is not correct. DTFQ expresses an aspiration to stop consuming alcohol if he is allowed to remain in Australia, which elevates concerns that a resumption of alcohol abuse would lead to further criminal offending. The community would also be concerned with some of DTFQ’s responses during the hearing, which are at odds with his expressions of remorse. In particular, he remains of the belief that police involvement was unnecessary and that his wife should have instead kept these issues in the family. His quite extraordinary submission that if he had wanted to kill his wife he would have done so rather than threatened it, also gives rise to concerns about his future behaviour. The evidence supports a finding that the primary consideration of expectations of the Australian community weighs strongly in favour of refusing DTFQ’s visa application, and the Australian community would expect the Minister to refuse to grant him a visa under s 501(1) of the Act.

    OTHER CONSIDERATIONS

    International non-refoulement obligations

14. The Direction refers to a non-refoulement obligation as an obligation not to forcibly return, deport or expel a person to a place where they are at a risk of a specific type of harm.[49]

    [49] Direction, para 12.1(1).

15. DTFQ applied for a Protection Visa on 20 September 2017, which was approximately four years after arriving in Australia and about a month after being taken into immigration detention. His application was refused on 14 December 2017 because the delegate was not satisfied that DTFQ is a refugee as defined at section 5H(1) of the Act, or that he is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act. The delegate further determined that there is no real chance of DTFQ suffering serious harm if returned to his country of citizenship, given the significant changes there since he left in 2010.[50] Therefore, the delegate found that DTFQ was also not a person in respect of whom Australia has complementary protection obligations under s 36(2)(aa) of the Act. As mentioned earlier, this decision is currently the subject of merits review within the Migration and Refugee Division of this Tribunal.

    [50] Exhibit R1, p.15.

16. DTFQ’s principal concern is that some record has been kept of his status as a deserter making him fearful of arrest. In essence, he claims to have been pressured to undertake a few days of forced labour and then to involuntarily join his country’s Army in 2010. He claims to have escaped on the first day at the Army training camp, submitting that he asked the guard for a drink of water, and then fled through a door the guard forgot to lock while the guard was sleeping. He claims that because his ID was confiscated, seeking replacement documents would possibly bring him to the attention of authorities. Even though he had only a single day of service in the Army seven years ago, DTFQ contends the Army would continue to pursue him and he could not be safe unless his identity and appearance were changed. On the evidence, I consider the fears expressed by DTFQ to amount to no more than speculation. They make no allowance for the changes in his country’s situation during the last seven years or the fact that there is no report of conflict in DTFQ’s home region. I note in this regard an assessment by the Department of Foreign Affairs and Trade (DFAT) regarding DTFQ’s country of citizenship,[51] which refers to a low risk of official or societal harassment. The location of severe discrimination relates to minorities on the opposite side of the country to DTFQ’s home state and although there is a military presence across the country, there is no evidence that DTFQ’s home state is a focus of any military violence. I note also in the DFAT report that the establishment of civilian government has been accompanied by greater freedom of speech and commentary, with many former political prisoners serving as members of the current government. Moreover, returnees have been welcomed and even ‘former political prisoners and exiled activists are now typically able to return safely…’ Although returnees who departed the country illegally in the past are ‘technically subject’ to imprisonment for having illegally crossed a border, DFAT reports that ‘…this provision has not been enforced in recent years.’

    [51] Exhibit R3.

17. DTFQ and P acknowledge the democratic transition in their country or origin since 2010 and that there is no fighting in their home region, but contend that no authority, including the central government, is able to control the Army. They submit the Army would continue to search for DTFQ if he was returned. For the reasons previously adduced, this submission is speculative and, on the evidence, over-stated. DTFQ did not provide any evidence to support his contention that he would be targeted by the authorities if returned, or that he reasonably fears harm as a consequence. P’s evidence in this regard, and that of their pastor and ethnic community leader, is similarly speculative.

18. Although the decision to refuse DTFQ’s protection visa application is the subject of review by another division of the Tribunal, I am not satisfied on the evidence before me, that DTFQ has a well-founded fear of persecution. I find that his claims do not engage Australia’s non refoulement obligations. The likelihood of his being held accountable after a single day of enforced Army service is remote in terms of the risk of apprehension, jail and significant harm. It does not constitute a risk of significant harm within the meaning of Australia’s complementary protection obligations. I therefore find that this consideration does not weigh in favour of or against the refusal of DTFQ’s application for a visa.

    Impact on family members

19. Paragraph 12.2(1) of the Direction requires consideration of the:

    Impact of visa refusal on 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.

20. The compassionate grounds informing my consideration of DTFQ’s case centre on submissions regarding P’s health. DTFQ contends that he must remain in Australia to look after P who is frequently unwell. But there is a dearth of evidence in this regard, including any current diagnosis for the condition/s P may be suffering from. The only evidence tendered during the hearing was P’s Patient Reminder Card for Mirena™[52], which is designed for use as a contraceptive or to reduce the effect of heavy periods. Moreover, I note that P was in paid employment at a furniture factory until June 2017, worked at a number of jobs prior to that time, and is currently on unemployment rather than disability benefits. Additionally, P’s evidence during the hearing was that although both of her sons have their own families and live independently, she still enjoys a close and continuing relationship with them, and they provide her with assistance when available. On that basis it is not possible to conclude, as I am invited to, that only DTFQ can support P when she is sick.  

    [52] Exhibit A1.

21. The evidence also does not support DTFQ’s contention at the hearing that he suffered nine broken ribs and multiple skull fractures in a May 2017 car accident. This relates to the submission that DTFQ and P are mutually-interdependent on each other, including in terms of managing their respective health concerns. The evidence shows that DTFQ suffered a single rib fracture ‘with flail and HTX,’ a laceration to his left arm, and a laceration to the back of his scalp.[53] There is also no evidence before me regarding the nature of any continuing symptomology that might be suffered by DTFQ, which requires continuing medical care or the assistance of P or other family members.

    [53] Exhibit R1, p.112.

22. The compassionate grounds in this matter also extend to the potential for DTFQ, his wife and other family members to be separated if he is not permitted to remain in Australia. When asked about her intentions if DTFQ is returned to their home country, P stated she would accompany him. On balance, I am satisfied that if DTFQ is returned to his home country, it would be very difficult for his wife in particular, forcing her to choose between accompanying her husband, or remaining in Australia close to her two sons and their families. I find that the consideration impact on family members is a countervailing factor that weighs against refusing to grant DTFQ a visa.

    Impact on victims

23. The victim in this matter is P, who nevertheless wants to build a life together with DTFQ in Australia. The Respondent submits that although DTFQ’s wife would be distressed by his removal from Australia, ‘her long term welfare may be protected by removal of the source of a real risk of harm.’ While it would be easy to accept that submission in light of the multiple police attendances in response to DTFQ’s violent conduct, I choose not to. On the evidence of DTFQ’s wife, I accept that this consideration weighs against refusing to grant DTFQ a visa.

    Impact on Australian business interests

24. Paragraph 12.4 of the Direction requires consideration of the:

    Impact on Australian business interests if the non-citizen’s visa application is refused, noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project or delivery of an important service in Australia.

25. DTFQ confirmed at the hearing that he has never been employed since arriving in Australia four years ago.[54] There is no evidence before me that Australian business interests will be affected by refusal of his visa application. I therefore find that this consideration does not weigh in favour of or against the refusal of DTFQ’s visa.

    [54] Ibid, p.56.

    Impediments if Returned

1. The Direction does not limit the number of other considerations that can be taken into account. Given the specific circumstances of this case, I have decided to consider a number of possible impediments raised during the hearing about the possible return of DTFQ to his country of citizenship. I use the phrase impediments if returned as a useful description of the evidence put before me and note that it should not be confused with the similarly-named consideration expressly appearing in paragraphs 10.5 and 14.5 of the Direction (for cancellations of visas and the revocation of mandatory cancellation of visas respectively).

2. In his statement, DTFQ submits that he would ‘have nowhere to go’ if returned to his country of citizenship, because both of his parents have passed away and he has not kept in touch with his sister.[55]  Ms Fisher states that if he was returned, he would be unable to subsist in one of the poorest countries in Southeast Asia, and would likely join the ranks of those living below the poverty line and possibly become a displaced person. She said that given his ethnicity and lack of familial connections, he could also be forcibly conscripted. DTFQ also expressed concern that he might be ostracised by other citizens as a person unwanted by Australia. Beyond oral submissions, no expert evidence was tendered in relation to those economic and cultural consequences.

   [55] Ibid, p.109.

3. Mr Brown submitted that although DTFQ’s country of citizenship is poor, it is the fastest-growing state in Southeast Asia, albeit off a low base. In that regard he said DTFQ’s submissions ignore the democratic and economic improvements since he left in 2010. Mr Brown points to the changes highlighted in DFAT’s report,[56] including significant infrastructure spending in DTFQ’s home state, contending that both are likely to provide greater employment opportunities than those available seven years ago.

   [56] Exhibit R3.

4. DTFQ is a relatively young man and although he has not worked since coming to Australia, he states that he wants to work for the rest of his life. There is no evidence before the Tribunal that he is unable to work, or that there are language or cultural impediments to his gaining employment if returned. I accept that if returned, it is highly unlikely he would be able to rely on the level of income support available in Australia, or access the same level of healthcare. That said, he would have access to the same benefits available to the other citizens. Moreover, even though DTFQ claims not to have contacted his sister since arriving in Australia, she is potentially someone who can assist his return. Additionally, if his wife chooses to return with him as she contends, she may also be able to assist their reintegration. I accept that if she does accompany her husband back to their country of origin, P may find it difficult to remain connected with or visit her sons and their families in Australia. Both DTFQ and P may also find it difficult to access the same level of medical support available in Australia, for the unspecified conditions they say require ongoing treatment. Again, they would have access to the same healthcare services available to other citizens. On balance, I nevertheless find this is a countervailing factor that weighs against refusing to grant DTFQ a visa.

   CONCLUSION

5. I found DTFQ’s evidence to be inconsistent and less than forthright on occasions, raising credibility concerns reflecting on his reliability as a witness. His recall of events was often selective and evasive. He changed his evidence on a number of occasions and at times was only able to recall matters adverse to his application after being pressed and directed to a specific documentary source. Where the oral evidence conflicted with the documentary evidence before me, I placed greater weight on the latter. In particular:

   (a)I prefer the evidence of Victoria Police in the reports obtained under summons,[57] to the incomplete and at times guarded recollections of DTFQ and other witnesses;

   (b)I prefer information from the Courts regarding the extent of DTFQ’s compliance with IVOs and CCOs, to DTFQ’s evidence in this regard;     

   (c)I prefer the evidence of the specialist from the Epworth Hospital,[58] regarding the injuries sustained by DTFQ on 7 May 2017; and

   (d)I prefer the assessment of the Department of Foreign Affairs and Trade regarding the circumstances in DTFQ’s country of citizenship, to the assessment by DTFQ, P, their pastor, and the President of DTFQ’s ethnic community.

   [57] Exhibit R2, pp.131-148.

   [58] Exhibit R1, p.112.

6. The primary considerations of ‘Protection of the Australian community from criminal or other serious conduct’ and ‘Expectations of the Australian community’ weigh strongly in favour of refusing DTFQ’s visa application. This follows from the repetitive nature of his family violence offences over a two year period, the harm arising from his offending, and his failure to abide by the court’s corrective penalties, particularly its rehabilitation and treatment directions. For the reasons previously adduced, the evidence does not show that DTFQ has broken the nexus between abuse of alcohol and his criminal offending. The risk of him again drinking to excess, engaging in further criminal conduct, and causing harm to members of the Australian community, most likely his wife, is unacceptable.

7. After weighting up all of the evidence and the applicable law, I find that DTFQ does not pass the character test. After considering the discretion granted under section 501(1) of the Act, and applying the considerations in Part B of the Direction to the specific circumstances of his case, I conclude that the two primary considerations outweigh any other considerations applying in this matter. It follows that the preferable decision is for DTFQ’s application for a Bridging Visa to be refused.

   DECISION

8. I affirm the decision of the delegate of the Minister made on 13 December 2017 to refuse to grant DTFQ a Bridging E (Class WE) Visa under s 501(1) of the Act.

I certify that the preceding 96 (ninety-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

[sgd]........................................................................

Associate

Dated: 5 March 2018

Dates of hearing:	21 & 23 February 2018
Advocate for the Applicant:	Ms Sarah Fisher
Solicitors for the Applicant:	Victoria Legal Aid
Advocate for the Respondent:	Mr David Brown
Solicitors for the Respondent:	Australian Government Solicitor