Ghimire and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 3
•2 January 2024
Ghimire and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 3 (2 January 2024)
Division: GENERAL DIVISION
File Number: 2023/6421
Re:Subash Ghimire
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
REASONS FOR DECISION
Tribunal:Member Dr C Huntly
Date:2 January 2024
Place:Perth
The following decision was made and provided to the parties on 20 November 2023 with a note that written reasons would be provided to the parties within a reasonable time:
The Reviewable Decision, being the decision of the delegate of the Respondent dated 25 August 2023 not to revoke the mandatory cancellation of the Applicant’s Class BS Subclass 801 Partner visa under s 501CA(4) of the Migration Act 1958 (Cth) is affirmed.
These are my reasons for decision.
.......................[Sgd].................................................
Member Dr C Huntly
CATCHWORDS
MIGRATION – mandatory visa cancellation – decision of delegate of Minister not to revoke mandatory cancellation of the Applicant’s Visa – substantial criminal record – offences including acts of family violence, breaches of family violence orders and traffic offences – Applicant is a 39 year old who arrived in Australia when he was 24 years of age – Direction No 99 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – family violence – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – legal consequences of the decision – Australia’s international non-refoulement obligations – extent of impediments if removed – impact on victims – Reviewable Decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss – 48A, 48B, 499, 499(1), 499(2A), 500(6L), 501(3A), 501(6), 501(6)(a), 501(7)(c), 501(7)(d), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G(I)
CASES
Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 66
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594Minister for Home Affairs v HSKJ [2018] FCAFC 217
SECONDARY MATERIALS
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), 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 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 6, 7, 8, 8(1), 8(2), 8(3), 8(4), 8(5), 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.2, 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.3, 8.3(1), 8.3.(2), 8.3(3), 8.3(4), 8.4, 8.4(4), 8.5, 8.5(1), 8.5(2), 8.5(3), 8.5(4), 9, 9(1), 9(1)(a), 9(1)(b), 9(1)(c), 9(1)(d), 9.1 9.1(1), 9.1(2) 9.1(3), 9.2, 9.2(1), 9.3, 9.3(1), 9.4, 9.4(1)
REASONS FOR DECISION
Member Dr C Huntly
2 January 2024
THE APPLICATION
The Applicant seeks review of a decision of a delegate of the Respondent dated 25 August 2023, not to revoke the mandatory cancellation of the Applicant’s Class BS Subclass 801 Partner visa under s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
The Applicant’s visa was cancelled pursuant to s 501(3A) of the Act on the basis that the Applicant did not pass the character test by reason of his substantial criminal record as the Applicant was serving a sentence of imprisonment. Specifically, the Applicant has been sentenced to a 12-month term of imprisonment.[1]
[1] GD, 33.
Section 500(6L) of the Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which an Applicant is properly notified in accordance with s 501G(I) of the Act. Consequently, I was required to hand down a decision on or before 20 November 2023. I handed down my decision on 20 November 2023. The following are my reasons for the decision made on that day.
BACKGROUND
The Applicant is a Nepalese national, who first arrived in Australia on 25 February 2009 as the holder of a Student visa.[2] He arrived with his first wife (Wife 1).
[2] GD, 237.
On 11 January 2010, the Applicant was eating dinner with Wife 1, and had consumed approximately 2 litres of red wine. An argument ensued during which the Applicant began yelling at Wife 1, and, while in their bedroom, struck her with an open hand to the nose.[3] Wife 1 left the bedroom and returned to that part of the apartment where other flatmates were present in a shared space.
[3] GD, 64.
Approximately 2 hours later, as Wife 1 left the shared space, the Applicant dragged her back into their bedroom. The Applicant punched Wife 1 twice to the nose, as one of the flatmates pulled Wife 1 away from the Applicant. The Applicant then tried to leave the apartment but was prevented from departing by the flatmates. Police were called. When police arrived, the Applicant repeatedly stated ‘she is a bad wife, she is illegal.’[4] Charges were laid against the Applicant by police at this time.
[4] GD, 65.
On 15 January 2010, the Applicant was found guilty in the Burwood Local Court of common assault (Domestic Violence) and was sentenced to a 12 month ‘s10 bond’.[5] The Applicant was also made subject to an Apprehended Domestic Violence Order (ADVO) for a 12-month period for the protection of Wife 1. The conditions of the ADVO were:[6]
1(a) The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
1(b) The defendant must not engage in any other conduct that intimidates the protected person(s) or a person with whom the protected person(s) has /have a domestic relationship.
1(c) The defendant must not stalk the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
10. The defendant must not approach the protected person(s) or any such premises or place at which the protected person(s) may from time to time reside or work within 12 hours of consuming intoxicating liquor or illicit drugs.
11. The defendant must not destroy or deliberately damage or interfere with the property of the protected person(s).
[5] The effect of s 10 of the Crimes (Sentencing Procedure) Act 1999, is that the offence is found proven, but the court does not record a conviction.
[6] GD, 58.
On 23 August 2010 and before the termination of the ADVO, the Applicant and Wife 1 coincidentally walked past each other in a grocery store. Wife 1 entered the store as the Applicant exited. The Applicant re-entered the store and began following Wife 1. As Wife 1 departed, the Applicant forced Wife 1 to sit on a nearby park bench and made a fist with his right hand and raised it above his head. Wife 1 ran into a nearby store, and the Applicant again followed her, stating words to the effect of ‘if you don’t come with me, I’m going to kill you’.[7]
[7] GD, 59.
On 21 November 2011, the Applicant was convicted in the Liverpool Local Court for the foregoing family violence related conduct. He received fines (totalling $12,000) and a 2-year s 9 Bond requiring that he comply with protective orders not consume alcohol to excess.[8] He was convicted of the following offences:
9.1. 3 contraventions of the ADVO;
9.2. 2 instances of stalk/intimidate intend fear of physical/mental harm;
9.3. 2 instances of use carriage service to menace/harass/offend.
[8] GD, 34.
On 1 October 2013, the Applicant was granted a Partner (Temporary) (class UK) Partner (subclass 820) visa, sponsored by another person (Wife 2). The Applicant was granted the visa on 29 January 2015. This relationship was ultimately unsuccessful. Wife 2 did not provide evidence in the present proceedings and the Applicant is no longer in contact with her.
The Applicant was convicted of alcohol-related traffic offences as follows:[9]
(a)15 December 2014, Drive vehicle under influence of alcohol – 1st off(ence), ($500 fine and 6 month disqualification from driving); and
(b)14 March 2017, Drive with low range PCA – 2nd+off[ence], ($500 fine, 3 month disqualification from driving and 12-month alcohol interlock program).
[9] GD, 34.
In the early hours of 13 June 2021, the Applicant grabbed his then wife (Wife 3) by the hair, dragged her from the lounge and began shaking her and yelling. Wife 3 bit the Applicant’s arm in order to gain her liberty and ran from the home. Wife 3 later returned home to get ready for work. At about 11am Wife 3 returned home from work and began packing her things in the bedroom so she could leave. The Applicant entered the bedroom and again yelled at Wife 3, throwing her clothes around the room. Wife 3 took her phone, again ran from the home and called the police. Police attended and arrested the Applicant after he became aggressive towards them.[10] The Applicant was charged with Common Assault (DV), made subject to an ADVO and released on bail with conditions protective of Wife 3.
[10] GD, 51-52.
While subject to protective conditions, the Applicant continued to electronically harass and intimidate Wife 3. Wife 3 made a complaint to Police on 4 August 2021 and provided evidence of approximately 420 text messages she received from the Applicant between 23 July 2021 and 4 August 2021 in addition to 22 telephone calls to Wife 3 from the Applicant’s telephone between 2:30am and 3:48am on 3 August 2021.[11]
[11] Summons Bundle, 64.
On 4 August 2021, the Applicant was convicted in the Campbelltown Local Court of Stalk/intimidate intend fear physical etc harm (domestic)-T2 and Contravene prohibition/restriction in AVO (Domestic). He was fined $500 and given a 12-month Community Correction Order.[12]
[12] GD, 34.
On 17 March 2022, the Applicant was convicted in the Liverpool Local Court of the 13 June 2021 Common Assault (DV)-T2 charge. His pre-existing Community Corrections Order was extended for 3 months (until 3 November 2022). The Applicant was required to attend for assessment of his alcohol issues and participate in alcohol counselling.[13] An ADVO was also issued for the protection of Wife 3 for a period of 2 years, with the following conditions:
(a)You must not do any of the following to [Wife 3] or anyone she is in a domestic relationship with:
(i)assault or threaten her,
(ii)stalk, harass or intimidate her, and
(iii)intentionally or recklessly destroy or damage any property or harm an animal that belongs to or is in the possession of [Wife 3].
(b)You must not approach [Wife 3] or contact her in any way unless the contact is through a lawyer.
[13] GD, 34.
On 27 March 2022, the Applicant was charged with failing to stop at a red-light traffic signal, and, having a prohibited percentage blood alcohol (mid-level) while driving.[14] This arose after the Applicant caused a head-on collision with a vehicle that was travelling in accordance with the traffic lights after he had concluded a drinking session at the Campbelltown Catholic Club. Speaking of this event later, the Applicant acknowledged it’s severity, indicating that ‘he is lucky to be alive after the accident [sic] and he was lucky that no one was injured’.[15]
[14] GD, 33; Summons Bundle, 59.
[15] GD, 96. This observation was notable, given that the other driver in the incident had to be taken to hospital by ambulance for treatment at the time (Summons Bundle, 59).
Between 3 June 2022 and 4 July 2022 and while subject to protective orders including ADVO, the Applicant:
(a)shared a total of 3 Facebook posts which all contained visual imagery of Wife 3 with disturbing captions, and linked these images to members of Wife 3’s family; and
(b)sent several emails to Wife 3, including threats to kill her friend, demanding she pay him money and showing that he had opened her personal mail and stating that ‘you ended up at jail or deported back to Nepal’.[16]
[16] GD, 56.
On 5 July 2022, the Applicant was taken into custody on remand.[17]
[17] GD, 66.
On 7 July 2022, the Applicant was convicted in the Bankstown Local Court of Stalk/intimidate intend fear physical etc harm (domestic)-T2 for his fresh offending conduct against Wife 3; and, of Contravene prohibition/restriction in AVO (Domestic) relating to the Orders that he was, at that time, still subject to for his prior offending conduct.[18] The Applicant was sentenced for these offences to 12 months imprisonment with a non-parole period of 6-months.
[18] GD, 33.
Further, given that the Applicant was in breach of his previous Community Correction Order and the offences to which they were related, the suspended sentences for those offences were ‘called up’. The Applicant was sentenced by the learned Magistrate to 6-months imprisonment for those offences. The Applicant appealed against the severity of his sentencing.[19]
[19] GD, 33.
On 27 July 2022 the Applicant’s visa was cancelled pursuant to s 501(3A).
On 28 July 2022 the Applicant was convicted of the 27 March 2022 charges of failing to stop at a red-light traffic signal; and, prohibited percentage blood alcohol (mid-level) (2nd offence). He was fined a total of $1,000 and disqualified from driving for 18 months commencing 28 July 2022.[20]
[20] GD, 33; Summons Bundle, 59.
On 23 August 2022 Hanley J of the NSW District Court confirmed the sentencing received by the Applicant.
On 29 July 2022, the Applicant requested revocation of his visa cancellation.[21] A large volume of supporting information was provided by the Applicant in support of this request over the months that followed.[22]
[21] GD, 69.
[22] GD, 68-69.
On 4 January 2023, the Applicant was released from prison, into immigration detention.
On 25 August 2023, the delegate refused to revoke the cancellation of the Applicant’s visa.
These facts are not in contention between the parties.
ISSUE
The issues that I need to determine are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if he does not pass the character test, whether I am satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
THE HEARING AND THE EVIDENCE
The hearing of this application was held in person at the Tribunal on 1 November 2023 and a resumed hearing was conducted via MS Teams on 3 November 2023.
Mr Ghimire represented himself. Ms M. Scott of Australian Government Solicitors represented the Respondent.
The Applicant and his brother gave evidence at the hearing on 1 November 2023 and 3 November 2023 respectively. The Tribunal attempted, unsuccessfully to contact three further witnesses for the Applicant by telephone at the resumed hearing.
The Tribunal had the following materials before it:
(a)Applicant's Bundle, comprising documents 1- 107, filed 25 October2023 (Exhibit A1);
(b)Applicant's Supplementary Bundle, containing documents 1-6 (Exhibit A2);
(c)Respondent's Statement of Facts, Issues & Contentions (SOFIC) dated 27 September 2023 (Exhibit R1);
(d)Respondent's Reply dated 25 October 2023 (Exhibit R2);
(e)Respondent's Tender Bundle, labelled R1-R7, filed 27 September 2023 (Exhibit R3);
(f)Summons & Other Documents Bundle, containing documents 1-5, filed 25 October 2023 (Exhibit R4); and
(g)Section 501G Documents, labelled G1-G6, containing attachments A- X, filed 19 September 2023 (Exhibit R5).
LEGAL FRAMEWORK
Migration Act
Subsection 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
i. paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
ii. paragraph (6)(e) (sexually based offences involving a child); and
(b)the person 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.
Subsection 501(6)(a) of the Migration Act provides that:
(6)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)); or
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(Original emphasis.)
Section 501CA of the Migration Act further provides, in part:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
i. a written notice that sets out the original decision; and
ii. particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
i. that the person passes the character test (as defined by section 501); or
ii. that there is another reason why the original decision should be revoked.
(Original emphasis.)
Direction No 99
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)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.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 23 January 2023, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 99) under s 499 of the Migration Act, which commenced operation on 3 March 2023. This Direction replaced the previous Direction No 90: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s501CA made on 8 March 2021 (Direction No 90).
Paragraph 5.1 of Direction No 99 sets out “[o]bjectives”, with paragraphs 5.1(3) and (4) being relevant to the current application:
(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 No 99 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA”. The principles are:
(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) (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.
(Emphasis added.)
Informed by the principles set out in paragraph 5.2 of Direction No 99, when making a decision the decision-maker (in this case, the Tribunal – see definition of “decision-maker” in para 4(1) of Direction No 99) must consider the primary considerations listed in paragraph 8 of Direction No 99, and the other considerations listed in paragraph 9 where relevant (see para 6 of Direction No 99).
Specifically, paragraph 8 of Direction No 99 provides:
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 No 99 lists other considerations to be considered as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) legal consequences of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests
Guidance as to how a decision-maker is to apply the considerations in
Direction No 99 can be found in paragraph 7, “[t]aking the relevant considerations into account”, which provides:(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.
CONSIDERATION
Does the Applicant pass the character test?
Failure of the character test arises as a matter of law: Harrison and Minister for Immigration and Citizenship.[23] The character test is defined in s 501(6) of the Act (see [34] above). Section 501(6)(a) of the Act provides that a person does not pass the character test if the person has “a substantial criminal record”.
[23](2009) 106 ALD 66.
Section 501(7)(c) (see [35] 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...”. Section 501(7)(d) provides that a person will have a substantial criminal record if they have been “sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more”.
As the Applicant does not pass the character test, he cannot rely on the provision in s 501CA(4)(b)(i) for the reviewable decision to be revoked. The issue, therefore, is whether the power under s 501CA(4)(b)(ii) should be exercised, on the basis that there is another reason why the reviewable decision should be revoked (see [36] above).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
PRIMARY CONSIDERATIONS
First primary consideration: Protection of the Australian community (paras 8(1) and 8.1 of Direction No 99)
Paragraph 8.1(1) of Direction No 99 provides that:
(1)When considering protection of the Australian community, decision-makers 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.
(Emphasis added.)
Paragraph 8.1(2) of Direction No 99 then provides:
(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 (paras 8.1(2)(a) and 8.1.1(1) of Direction No 99)
Paragraph 8.1.1(1) of Direction No 99 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. causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii. crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii. any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv. where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
(Emphasis added.)
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No 99)
Paragraph 8.1.2(1) of Direction No 99 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.
Paragraph 8.1.2(2) of Direction No 99 provides, in part, in relation to assessing risk:
(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 noncitizen 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 the harm (para 8.1.2(2)(a) of Direction No 99)
The assessment of Magistrate Giles in the Bankstown Local Court on the occasion of the Applicant’s most recent sentencing on 7 July 2022 for his persistent violent offending against Wife 3 was as follows:[24]
It is always very sad to have to sentence somebody to prison who is fairly young, vulnerable, at a time of global pandemic, I take all that into account, but Mr Ghimire's behaviour has been atrocious. Not just atrocious, wicked, really wicked behaviour, evil behaviour and it continues, it would seem, into the sentencing assessment report where he blamed his wife for his offending behaviour.
Both of the breaches of the community correction order, he was exceptionally lucky when he was sentenced in Campbelltown to be given community correction orders so that he could remain in the community because obviously at the time he assured the sentencing magistrate that this lady would be safe from his bullying and stalking and harassment and humiliation and sadly, we were wrong, again.
This woman has suffered again, and she has come to this Court to beg for our protection, we gave her that protection and Mr Ghimire ignored it. He ignored that, he ignored her wishes, he ignored the community correction order that said that he was supposed to be being of good behaviour. I do not know how else I can get the message across to this man who clearly still thinks, as of today, when he is speaking to Community Corrections, that his behaviour is all his wife's fault. I think that probably tells us everything we need to know about how we are going to try and keep her safe and the only possible sentence that can be imposed is one of full-time custody.
Mr Rosalky from Legal Aid has pleaded for that to be by way of intensive correction order so that he is free in the community again. Problematically, I do not need a crystal ball to see how he will behave on conditional release because I have seen Mr Ghimire on conditional release and the victim is not safe. I certainly understand what Mr Rosalky says when he says that gaol has been horrendous. I understand that. We are in a period of global pandemic.
Mr Ghimire is young, he is vulnerable, as is his wife. We have tried to protect her, he was free to stay in the community if he just behaved himself, but he did not and he cannot seem to control his own behaviour so sadly it falls to us. He cannot live amongst us because the victim is not safe and so he has to remain in full-time custody.
He has pleaded guilty, that does him some credit. I am prepared to find special circumstances so that he can spend half the time on parole, and we will see how his alcohol addiction goes after the time he spends in custody. But such sustained offending, clearly we need to send some kind of general deterrence message to this gentleman who clearly is not getting the message. Even speaking to Community Corrections to then say, well, it is all her fault that this is happening to her.
(Emphasis added.)
[24] GD 35-36.
It is of significance that, as demonstrated by the facts identified above, this was a second instance over a twelve-year period on which the Applicant has pleaded guilty and been sentenced by a court for acts of violence against a woman in circumstances amounting to domestic violence. It is further of significance that the Applicant has committed abhorrent offences against a protected person in contravention of the express terms of orders of the court.
In addition to this offending, I note the Applicant’s repeated drink-driving offences identified above which can only be regarded as serious in and of themselves. These are offences committed against road users and members of the public in general. The Applicant’s lack of regard for others in this offending is highlighted by his observation in the context of the most recent pre-sentence interview that ‘he is lucky to be alive after the accident [sic] and he was lucky that no one was injured’.[25] This observation not only elides over the fact that the “accident” in question was an avoidable traumatic collision caused by his own intoxication and negligence, but it fails to acknowledge the injuries sustained by the other driver who had to be treated in hospital after being taken there in an ambulance.[26]
[25] GD, 96.
[26] Summons Bundle, 59.
As to the nature of harm to innocent members of the Australian community that might flow from the documented serious and criminal conduct of the Applicant, if it were to re-occur: members of the community might be exposed to the trauma-inducing harm of witnessing domestic violence and abuse; or, if they were his intimate partners, to personally experience threats, coercive control, humiliation, stalking, homelessness and beatings; or be injured or killed as a result of avoidable road trauma. Further, vulnerable women in third countries might be made subject to arranged marriages and placed under obligation to their own families of origin and required to move to Australia and be subjected to abhorrent treatment including the risk of alienation and shaming from their own families of origin.[27]
[27] Transcript 1, 18-20.
This is the essence of serious conduct that runs counter to the expectation that a non-citizen in this country will be law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction No 99)
The Applicant suggests that he acknowledges the significant psychological damage his actions may have caused. He states that he is remorseful for and deeply regrets the pain he has caused and that he is committed to personal growth, rehabilitation and making amends to those affected by his behaviour.[28] The Applicant has also stated that he “accepts responsibility” for his serious and other criminal offending behaviour,[29] although what, precisely, the Applicant intends to express by reference to this term is somewhat ephemeral. To the extent that it conveys a deep appreciation of the personal consequences of his own conduct for the present circumstances in which he finds himself, this appears to have begun around 22 August 2022 when the Applicant’s appeal against sentence was determined in the negative by the NSW District Court.[30]
[28] Transcript 1, 39.
[29] Transcript 1, 72-77.
[30] Transcript 1, 77.
The Applicant further stated that his Christian beliefs and commitments, his dedication to ongoing counselling, his social engagement and his personal plans will assist him to no longer be a risk to the community or individuals in his life. He is committed to abstaining from alcohol and drugs of addiction and will comply with any orders of the court or the requirements of his parole.[31]
[31] Transcript 1, 74-77.
The Applicant has produced numerous supporting letters from people who have experienced him as a positive and supportive individual. Some of these letters are from individuals who have knowledge of the Applicant’s serious and other offending conduct in Australia. I give these letters of support some weight. This weight is reduced, however, given that most of the relevant letters do not make reference to the Applicant’s detailed and extensive record of offending and other conduct. I also note that much of that offending and other conduct was conterminous with the period during which the Applicant was known to the persons writing in support. This raises the prospect that the Applicant has lived something of a parallel life. Such an implication is entirely consistent with his disregard for the orders of the court over more than a decade and his disregard for the rights, freedoms and personal liberty of his former domestic partners – while simultaneously ingratiating himself with people whose high opinion the Applicant are, in his view, deserving of his better conduct.
I have already made reference to the sentencing Magistrate’s 7 July 2022 assessment of the Applicant’s likelihood of reoffending, and his prospects for rehabilitation above. I further note that the Applicant has offended against at least two former intimate partners with whom the Applicant shares extended social networks in Nepal.[32] It is troubling that this interconnectedness has not served to militate against his violent, coercive and intimidating treatment of those persons.
[32] Transcript 1, 18-20.
I note that the 21 March 2023 Clinical Psychologist report of Sam Borenstein records the Applicant as stating that “Alcohol is my problem...” and that “Alcohol has ruined my life”.[33] This is reinforced by the suggestion of the psychologist that the Applicant “expressed guilt and remorse for the offending behaviour, which he attributes exclusively to alcohol.”[34] This report further records that the Applicant “has had difficulty maintaining a committed, stable relationship, which he attributes to his alcohol problem.”[35] In summary, the expert report states “Successful rehabilitation and total abstinence from alcohol will, in my opinion, mean the likelihood of [the Applicant] offending in a similar fashion against [sic] will be significantly reduced.”[36]
[33] GD, 171.
[34] GD, 172.
[35] GD, 173.
[36] GD, 173.
At the hearing, the Applicant’s evidence about his serious domestic violence offending in response was not straightforward. He was unable or unwilling to explain the events that have brought him to this point in his life by way of anything other than the most detailed and forensic questioning by reference to contemporary documents. Even when his partial and often misleading evidence about these matters was drawn to his attention, he found it difficult to acknowledge either the nature of his actions or the seriousness of the consequences of those actions to those affected by them. The following passage of transcript will illustrate the point:[37]
[37] Transcript 1, 56-59.
MS SCOTT:I asked you whether you had an argument where you threatened that your first wife would be deported back to Nepal when you said ‘no’?
APPLICANT: Yes.
MS SCOTT:That’s what’s reflected in this statement. You’re saying this statement is incorrect?
APPLICANT: Yes.
MS SCOTT:Did you say anything to your wife along the lines of ‘You bitch, you are a terrible wife’?
APPLICANT: Yes, I did, I did.
MS SCOTT:You accept that part of the statement?
APPLICANT: Yes, yes.
MS SCOTT:Did you approach your wife and strike her with an open hand to the nose, causing a laceration to the left side of her face?
APPLICANT: Yes, I agree that one.
MS SCOTT:You agree with that?
APPLICANT: Yes, that one I agree. But I don’t agree I did, like, attempt to – – -
MEMBER:A moment ago you said you didn’t hit her. What is it, [Applicant]? Did you hit her or did you not hit her?
APPLICANT: I did hit. I did struck her with an open hand to the nose and – but I did not punch twice her on the nose.
MEMBER:You need to focus on the question you’re being asked, [Applicant]?
APPLICANT: Okay, yes.
MEMBER:You have given different answers to the same question when you’ve been asked the same question under oath. When I first asked you about these events, you didn’t mention them at all?
APPLICANT: Yes.
MEMBER:When Ms Scott has asked you about it, you’ve given very different answers each time she’s asked. Sorry, Ms Scott.
MS SCOTT:You previously said that you had just pushed her. That was incorrect?
APPLICANT: I push her. It is correct as well.
MS SCOTT:But you didn’t just push her. You’ve just said that you struck her with an open hand to the nose. I’ll put the question again. You didn’t just push her; you struck her as well?
APPLICANT: Yes, I struck as well. That’s why I committed – I told the judge as well.
MEMBER:Okay. We’ve gotten an answer to that question. Let’s start from there before you provide further clarification. Ms Scott.
MS SCOTT:Then the statement goes on to say that you used a right closed fist to punch her twice to the nose, and you’re saying that did not happen?
APPLICANT: No, that not happened.
MS SCOTT:Then if you turn to the next page, it says on page 65 – – -?
APPLICANT: Yes.
MS SCOTT:It says that a witness pulled your wife away from you?
APPLICANT: I don’t – I don’t remember that – those.
MS SCOTT:Then it says you put on your shoes and tried to leave but your flatmates essentially stopped you from leaving?
APPLICANT: I (indistinct) that as well. Because I have a 2 litre of wine that time, you know. Like, I can’t remember.
MS SCOTT:You don’t recall the finer – – -?
APPLICANT: Like, yes, yes.
MS SCOTT:It could’ve happened?
APPLICANT: Yes.
MS SCOTT:That could’ve happened?
APPLICANT: That could not – that could happen, but I don’t – I don’t believe, like, I’m going to – I’m running from anywhere, you know. Like, if I run around, I would only – I would (indistinct) run away, miss. I would then go to the police station, you know what I mean?
MEMBER:Can I just be clear what your evidence is about punching your first wife in the face? Are you saying that you can’t remember whether you punched her or you deny that you punched her?
APPLICANT: I deny punching that one.
MEMBER:You can’t remember whether or not you said particular things, but you can remember that you didn’t punch her in the face. Can I ask a question?
If you had slapped her to the side of the face when she left – before she left the room and joined her flatmates and they noticed – apparently they noticed a laceration to the left side of her face – and then after that you grabbed her – followed her into the room, grabbed her by the arm and dragged her back into the bedroom. The witness, being concerned for the victim, has followed her into the room. While that witness is in the room, and while you’re inside the room, you turn to face the victim and used a right closed fist to punch her twice in the nose, causing immediate pain and her nose to bleed.
So this, the way it reads, you pursued her outside of the room, forced her back into the room, you were followed into the room by a witness, and police have charged you with punching her in the face causing her nose to bleed while a witness had followed you into the room. So that being the case, and you denying that you had punched them in the face – punched your first wife in the face, you’re saying that your alcohol-affected memory is a better recollection of what happened than the evidence of your wife and two civilian witnesses? Is that what you’re saying? So your alcohol-affected memory is a better judge than the evidence of other people who were present?
APPLICANT: In my understanding, like, I was very affected by alcohol, but before got in – before went – before went to the court, I was told by those witnesses – those witnesses, like, ‘To help and support you, you just have to quit alcohol.’ That’s what they told me. But I don’t know – I have – I – – -
MEMBER:Well, three days later – presumably you weren’t drinking three days later – three days later, before the magistrates, these facts were read, the witnesses were referred to, and you were found guilty of common assault?
APPLICANT: I did – I did – I did pleaded guilty of that offences.
MEMBER:You pled guilty to it?
APPLICANT: Yes.
MEMBER:To these facts?
APPLICANT: Yes.
MEMBER:But now you’re saying these facts didn’t happen. Thank you, [Applicant]. That’s all I need to hear on that matter.
MS SCOTT:Were you aware that a domestic violence order was issued after that event occurred? So there was something in place to stop you from harming your wife?
APPLICANT: Yes.
MS SCOTT:So it seems that, having been convicted of assaulting your wife and given a good behaviour bond and there being a domestic violence order that that’s a pretty clear example that such conduct is not tolerable, isn’t it?
APPLICANT: Yes.
MS SCOTT:So then if we move to – – -
MEMBER:Sorry, 12 months would’ve ended – 12 months of good – promised good behaviour started on the – – -
MS SCOTT:15 January is my understanding.
MEMBER: – – – 15 January 2010, and would’ve ended on 15 January – 14 January 2011?
MS SCOTT:Yes. That is my understanding.
MEMBER:Thank you.
MS SCOTT:So then some months later, and this is in – from 26 July, you – and you’ve given evidence today that you continued to call your wife. Is that correct? You wanted to reconcile with her. You wanted to get back together with her?
APPLICANT: (No audible response.)
MS SCOTT:Did you understand that that was in breach of what you were meant – – -?
APPLICANT: I did not – I did not have, like, no contact. Like, I can still contact her, but – – -
MS SCOTT:But you made over 100 calls to her. And so do you think that that is – – -
MEMBER:Over what period, Ms Scott?
MS SCOTT:I believe it was over that three-day period before 26 July and 3 August. I’ll just bring you to the police facts sheet on that one.
MEMBER:Thank you.
The similarity of circumstance and nature of the Applicant’s domestic violence offending and subsequent disregard for the protective orders of the Court in both 2010 and 2021 discussed above are as striking as they are alarming.
In mitigation, the Applicant has given evidence of his enduring relationships of trust and mutual affection with friends, family and co-workers extending from before and throughout his time in Australia. The relationship between the Applicant’s substance use/dependency and his antisocial behaviour and poor judgment has been clearly identified in the materials before the Tribunal and the Applicant has expressed a personal commitment to continuing on his journey towards recovery. The most recent clinical assessment referred to above is that, with continued abstinence from drugs of addiction and continued rehabilitation, the “likelihood of [the Applicant] offending in a similar fashion … will be significantly reduced”.
Given what the most recent sentencing judicial officer has described as the Applicant’s “atrocious, wicked, really wicked behaviour, evil behaviour”, any risk of the Applicant re-offending in such an inherently abhorrent manner is intolerable. Significantly, Burwood Community Corrections assessed the Applicant as having a “Low/Medium risk of reoffending according to the Level of Service Inventory – Revised (LSI-R)” on 17 June 2022.[38]
[38] Summons Bundle, 111.
The Applicant’s expert psychologist report referenced above highlights the “significant reduction” of the risk that the Applicant will similarly reoffend if he is successful with adopting the interventions, strategies and commitments he has identified. Such an outcome would be contrary to his lived experience in Australia to this point in time. It is further noted that the Applicant appears to lack insight into the intrinsic personal causes of his offending against others, whether it be his former intimate partners (“it is normal in his cultural his [sic] hit a partner who is cheating or yelling”; “the offence impacted him the most out of everyone”)[39] or other road users (“he was lucky that no one was injured in the accident he caused”).[40] It is accepted that the Applicant has developed an online therapeutic relationship with a counsellor and a community of support in his chosen faith while in prison. However, the Applicant has had the benefit of counsellors and faith communities throughout his time in Australia and these have not proved to be sufficiently protective in the past.
[39] Summons Bundle, 100 (26 April 2022).
[40] Summons Bundle, 111 (17 June 2022). The Applicant was still unaware of any injury to the other driver in the head on collision he caused while drink driving at the hearing on 1 November 2023 (Transcript, 71).
The Applicant’s past conduct, viewed through the prism of the available evidence satisfies me that he continues to present a moderate to high risk of reoffending in like fashion to his previous serious offending and other conduct in Australia to this point if he remains in the community.
Summary re: para 8.1 of Direction No 99
I have found that the Applicant’s conduct in Australia has been serious as this term is contemplated in Direction 99. I have further found that the Applicant presents a moderate to high risk of reoffending in like manner in Australia if returned to the Community.
I find that the first primary consideration, being protection of the Australian community, weighs against revoking the Cancellation Decision. I further find that this consideration should be significantly weighted.
Second primary consideration: Family violence committed by the non-citizen (paras 8(2) and 8.2 of Direction No 99)
Paragraph 8.2 of Direction No 99 requires decision-makers to have regard to family violence committed by the non-citizen.
As discussed above, the Applicant has been found by judicial officers (on a plea of guilty by the Applicant on both occasions) to have engaged in family violence as this term is used in Direction 99 against both his first and third spouses in Australia. Individually, these instances of family violence were serious and, in each instance, the charges arose from repeated and frequent conduct by the Applicant which persisted despite having been placed on protective orders by law enforcement and judicial officers. He made repeated threats to kill of injure his former partners and those with whom those persons were involved, he attempted to deprive those individuals of their liberty, his acts of coercive control and disregard for their personal freedoms were justified by reference to the Applicant’s own needs and interests as recently as the hearing on 1 November 2023. There is a clear and demonstrable cumulative and escalating trend of offending in the Applicant’s history of family violence-related conduct in Australia. Following that hearing it remains unclear to what extent the Applicant genuinely accepts personal responsibility for the family violence for which he has been repeatedly sentenced. There is little evidence that he appreciates the extent of the impact of his behaviour on his family violence victims.
The sentencing magistrate’s comments about the Applicant’s offending conduct extracted above encompasses the family violence offending in June 2022 for which he was brought before the Court together with the fact that this abhorrent conduct contravened pre-existing protective orders binding the Applicant for the benefit of the same victim from the previous year. In this respect, it is sufficient to repeat the finding of the learned Magistrate on 7 July 2022 that:[41]
We have tried to protect [Wife 3], [the Applicant] was free to stay in the community if he just behaved himself, but he did not and he cannot seem to control his own behaviour so sadly it falls to us. He cannot live amongst us because the victim is not safe and so he has to remain in full-time custody.
[41] GD, 35.
The Applicant subsequently appealed the severity of the sentence of imprisonment he received in the Bankstown Local Court and the NSW District Court confirmed that sentence.[42] The Applicant claims to have begun to accept responsibility for his offending either following his sentencing in the Local Court on 7 July 2022 or on the confirmation of that sentencing by the NSW District Court on 22 August 2022.[43] As discussed above, the Applicant’s ability or willingness to accept his personal culpability for any of his past abhorrent conduct beyond purely formulaic utterances is difficult to discern. Taken at its highest, the Applicant’s acceptance of responsibility appears to be more closely related to the Cancellation Decision than any of the foregoing legal proceedings leading up to the present application.
[42] GD, 37.
[43] Transcript 1, 74.
The Applicant’s history of family violence in Australia both individually and cumulatively is serious and evinces a trend of increasing seriousness. He has reoffended after being formally warned by law enforcement, judicial officers and while being allowed to be at liberty under protective orders of the Court.
In light of the foregoing, the second primary consideration, being family violence committed by the Applicant, weighs against revoking the Cancellation Decision. I find that this consideration should be significantly weighted.
Third primary consideration: The strength, nature and duration of ties to Australia (paras 8(3) and 8.3 of Direction No 99)
(1) Paragraph 8.3(1) of Direction No 99 provides that 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.
Paragraphs 8.3(2) and (3) of Direction No 99 direct decision-makers to consider the non-citizen’s ties to any children, and the strength, duration, and nature of any family or social links to members of the Australian community who are citizens, permanent residents or who have an indefinite right to remain in Australia:
(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.
Further, in paragraph 8.3(4) of Direction No 99, decision-makers are required to consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. Specifically:
(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 Respondent submits as follows:[44]
[44] SOFIC, 14-15.
71. The applicant has resided in Australia for 14 years. He was 24 years of age at the time of his arrival. It is accepted that during this time the applicant will have developed ties to the community.
72. The applicant’s brother (and his wife and 2 children), step-sister (and her husband and child) and 2 cousins (one with 2 children) are Australian citizens or permanent residents. His step-brother and nephew also live in Australia, although appear not to hold a permanent visa status.
73. The applicant has provided a number of letters in support from those he has ‘ties’ within Australia. Placing aside the fact that these letters are repetitive and in very similar terms, none of the statements speak to any impacts upon the individuals if the cancellation of the applicant’s visa is not revoked. In the applicant’s representations he refers to:
73.1. financial stress and ‘homeless for immediate family’, however there is nothing in the materials to suggest that his family in Australia would be unable to support themselves if he departed;
73.2. poor mental health for his brother and sister-in-law and depression for their son. Once again, there is no evidence to support this and none of the statements make mention of any impact on the family in Australia;
73.3. his mother applying for a visa in Australia. This is irrelevant to the strength, nature and duration of ties where his mother is not a citizen and is not in Australia;
73.4. the ‘profound negative impact’ removal would have on him, as opposed to his family;
73.5. the assistance he provided to various family members when they came to Australia, including his cousin, step-brother and nephew who lived with him and he supported in some particular way.
74. The Minister submits that while there may be some disappointment if the cancellation of the visa is not revoked, the applicant’s family will not be significantly impacted. Further, for the reasons detailed below, the applicant’s ties to those minors he has identified is such that, once again, while there may be disappointment, the impact will not be heavy.
75. It is accepted that, given the period of time the applicant has resided in Australia, he will have developed social links. Supporting letters from friends have been provided, and community organisations. However, this must be balanced against the fact that the applicant’s offending commenced less than 1 year after his arrival in Australia. Further, it was the same type of offending which led to the cancellation of the applicant’s visa over 10 years later (and which has led to these proceedings). Therefore, in the Minister’s submissions less weight should be given to this.
I note that the Applicant was 24 years of age when he arrived in Australia and that, by this time, he had been married for two years and was engaged in higher studies with a view to establishing himself in a career in Australia.[45] All his formative years had effectively been spent in Nepal. During the hearing, the Applicant spoke with a sophisticated understanding of Nepalese society at the micro level of his family’s circumstances, and at the macro or community level.[46] He explained his attitudes towards intimate partner relationship as recently as August 2022 in entrenched cultural terms.
[45] Transcript 1, 34-36.
[46] Transcript 1, 30-32.
During his years in this country his friends and family members in Australia have had the burden of managing their relationship with a loved-one who has had a long-term destructive relationship with drugs of addiction, driver’s licence disqualifications, erratic behaviour, criminal offending, dysfunctional interpersonal relationships and uncertainty regarding his entitlement to remain in Australia. The Applicant demonstrates little if any personal insight into this burden he has placed on those of his personal network of support in Australia, instead highlighting the benefits he brings to their lives by his valuable contributions.[47]
[47] Transcript 1, 32-34.
The Tribunal heard from the Applicant’s brother at the resumed hearing, held on 3 November 2023. It is clear from the evidence of the Applicant’s brother that the two siblings are close and enjoy a strong filial bond that includes mutual emotional, practical and, to some extent, financial, support. It is accepted that the Applicant’s family in Australia would be adversely impacted in the event that the cancelation decision is not revoked.
The Applicant also provided a number of letters of support from friends, colleagues and associates, all of which demonstrate that he has a very real network of support in the Australian community. It is accepted that, unless the Cancellation Decision is revoked, those relationships would be irrevocably impaired.
The Tribunal finds that, the third primary consideration, being the strength nature and duration of ties to Australia, weighs in favour of revoking the Cancellation Decision.
I further find that this consideration should be given moderate weight.
Fourth primary consideration: Best interests of minor children in Australia affected by the decision (paras 8(4) and 8.4 of Direction No 99)
Paragraph 8(4) of Direction No 99 states that in making a decision under s 501CA(4), “the best interests of minor children in Australia” is a primary consideration.
Direction No 99 states that decision-makers must determine whether the decision under review is, or is not, in the interests of a child affected by the decision. The first three paragraphs of 8.4 provide:
(2)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(3)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(4)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.4(4) of Direction No 99 sets out the factors that the decision-maker must consider where relevant:
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)whether there are other persons who already fulfil a parental role in relation to the child;
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The only child whose best interests can reasonably be expected to be affected by the cancelation decision in a meaningful way is the son of the Applicant’s brother. This relationship is clearly one of genuine significance. None of the other identified children in the Applicant’s life have featured in submissions in the same manner as this child.
In evidence to the Tribunal, the Applicant’s brother provided the following important detail:[48]
[48] Transcript 2, 102-103.
MEMBER:Mr [Applicant] – Mr [Witness], sorry. When you said your brother acted as a parent, did you mean that you felt that he was supporting you as if he was your parent? Or were you talking about him being a parent to your son?
WITNESS:(Indistinct) like both, because we are a family tie, you know. Our culture is like that. So we help for, like, all sorts of things. It means, like, emotionally and financial and carer both ways.
MEMBER:Yes, and
WITNESS:But financially as well.
MEMBER:I’m interested in what you said, because it sounded you were saying that [Applicant] was more of a parent to you in your time of need. Is that correct?
WITNESS:It’s a 50/50, like I’m also supporting my son and he also doesn’t have any kids, so he always treat my son as his own son. So that’s the way, you know? He treated my son also as his son. Because he doesn’t have any kids.
MEMBER:When was the last time [Applicant] cared for your son?
WITNESS:When he comes to Canberra, he always take. When I’m working, he take for my son for, like
MEMBER:It’s very important that you listen to my question, Mr [Witness]. When was the last time he cared for your son?
WITNESS:That’s before going to jail.
MEMBER:Okay. Can you give me a rough idea of when that was?
WITNESS:Maybe last year, this was maybe when he come. On birthday, I think? March? No. Maybe March, I think. He always comes for birthdays, you know. Everything. Maybe on March, I believe.
MEMBER:So how often does he visit your family?
WITNESS:He visit, like, most of the time. Like every month or something like that. Every month when he got time off. Because he doesn’t have most of the people to live in Sydney, so he – I also asked him to try to come and find a job in Canberra so we can be together as well. But he was living with his wife in the beginning, when he was, got, like those separated and I (indistinct) him to come back to Canberra.
MEMBER:Yes.
WITNESS:But I don’t know why he did not come to Canberra that time. Maybe he was much more difficulty at that time. And I told, like, you need, like, much more support from family and I saw this change to go for, like, therapy and all the things as well. He was doing that one, but in the middle he just got arrested, and it was just too – on the middle was he just had to go to jail.
MEMBER:Good. Thank you so much. I have nothing further. Mr [Applicant], do you have any questions?
APPLICANT: No, thank you.
It is clear that the Applicant fulfills the role of a very caring and devoted uncle to his young nephew. There is no reason to doubt this evidence and the literature is quite clear about the importance of positive intergenerational and multi-gendered relationships for childhood development. In a sense, the fractured family life of the Applicant is a case study of how damaging negative interfamilial relationships can be for a developing child.[49] There is nothing before the Tribunal to suggest that the Cancellation Decision would have anything other than a deleterious effect on the development of the Applicant’s nephew to the extent that it would make it impossible for the Applicant to have an episodic, hands-on or financially supportive avuncular relationship with this child in the way that the family has become accustomed in Australia.
[49] Transcript 1, 30-32.
The fourth primary consideration, being the best interests of children in Australia affected by the decision weighs in favour of revoking the Cancellation Decision. The Tribunal finds that this consideration should be given moderate weight.
Fifth primary consideration: Expectations of the Australian community (paras 8(5) and 8.5 of Direction No 99)
A decision-maker must consider the expectations of the Australian community when making a decision under ss 501 or 501CA.
These expectations are set out in paragraph 8.5 of Direction No 99, which 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;
d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f) worker exploitation.
(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.
(Emphasis added.)
I must give effect to the “norm” stipulated in paragraph 8.5(1) of Direction No 99, being that the Australian community expects non-citizens to obey Australian laws whilst in Australia. This will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future. Here, I note in particular that the Applicant’s offending conduct specifically implicates the highlighted elements of paragraph 8.5(2)(a) and (c) of Direction 99 above.
As is evident from the reference to the “norm” in paragraph 8.5(1) of Direction No 99, I am being told unequivocally what the community’s expectations are. Further, paragraph 8.5(4) of Direction No 99 confirms more explicitly that the Australian community’s expectations are what the Government deems them to be, because decision-makers are directed to proceed based on the Government’s views about community expectations without independently assessing them (see Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68 at [41]-[44]).
I agree with the observations of Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143, which were adopted by Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208 (Wightman). I note that Deputy President Boyle was writing about the previous Direction No 90, however the wording in Direction 99 is identical in this regard, and therefore they equally apply to Direction No 99.
In Wightman, Deputy President Boyle stated, at [85]–[86]:
… Direction 90 superseded Direction 79 on 15 April 2021. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (NTTH) at [194] noted that the provisions of Direction 90 contain generally similar wording to the corresponding provisions in Ministerial Direction No 65 (Direction 65), the predecessor to Direction 79. Those corresponding provisions in Direction 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (FYBR).
Senior Member Morris at [195] and [196] of NTTH summarises the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:
195.It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
196.It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. ...
(Original emphasis and footnotes omitted.)
Further detail about the Australian community’s expectations with respect to certain types of conduct is given in paragraph 8.5(2) of Direction No 99. That paragraph states that the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paragraphs 8.5(2)(a)–(f).
Paragraph 8.5(3) of Direction No 99 further confirms that the Australian community’s expectations are what the Government deems them to be, by effectively telling decision-makers that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Further, paragraph 8.5(4) of Direction No 99 tells decision-makers that this consideration is about the expectations of the Australian community as a whole. It directs decision-makers to proceed based on the Government’s articulated views without assessing the community’s expectations in the particular case. I therefore cannot speculate about what the community’s views might be about the Applicant.
The fifth primary consideration, being the expectations of the Australian community weighs against revoking the Cancellation Decision. The Tribunal finds that this consideration should be given significant weight.
OTHER CONSIDERATIONS (PARA 9(1) OF DIRECTION NO 99)
As I outlined above, Direction No 99 directs decision-makers to have regard to a non-exhaustive list of several other considerations to the extent they are applicable.
Legal consequences of decision under section 501 or 501CA (para 9(1)(a) and 9.1 of Direction No 99)
Paragraph 9.1 of Direction No 99 identifies the legal consequences that decision-makers must bear in mind when making a decision under s 501 or 501CA of the Migration Act.
The first sub-paragraph, 9.1(1), of Direction No 99, outlines that a non-citizen is liable for removal from Australia, notwithstanding any non-refoulement obligations:
(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.
The next two sub-paragraphs, 9.1(2) and (3), address Australia’s non-refoulement obligations:
(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.
The Applicant previously sought refugee protection in Australia for the essential and significant reason of his Christian faith, without success.[50] I note that s 48A of the Migration Act acts as a positive bar from applying for a subsequent protection visa absent a discretionary lifting of that bar by the Minister pursuant to s 48B of the Migration Act.
[50] Summons Bundle, 3-38.
I discussed these matters with the Applicant at the hearing as follows:[51]
[51] Transcript 1, 84.
MEMBER: Thank you. The summary of the finding of DFAT in its most recent report on Nepal, which is in the respondent’s tender bundle document. This document here, the respondent’s tender bundle at page 183, at paragraph – page 183, the respondent’s tender bundle?‑‑‑…
First of all, I’ll take you to page 182. 182, paragraph 3.25:
Overall, DFAT assesses that people of different religions generally live side‑by‑side without incident in a richly multi‑ethnic and multi‑religious society. Incidents of tensions between groups and discrimination against them has been reported, mostly in localised events. These are described in the relevant section below. DFAT assesses that people involved in multi‑ethnic marriages may be at risk from disapproving families, but this depends on the attitudes of individual parents.
Over the page, page 183 at paragraph 3.32:
DFAT assesses that Hindu citizens who convert to Christianity are publicly and safely able to do so, although they may experience low‑level societal or family discrimination which may vary according to their personal and family circumstances.
Now, your evidence is that you’re currently divorced from all of your wives. You have visited Nepal multiple times. You’ve stayed with your mother. You’ve been a practicing Christian since 2011. It seems to be completely consistent with the DFAT country information for Nepal. What is it, in particular, you feel will happen to you if you go back to Nepal tomorrow?
APPLICANT: Like, I can be all, like, vulnerable from discrimination and harassment.
MEMBER: Because?
APPLICANT: Because of my religious belief and identity. Like, I’m, like, Brahmin – Brahmin – – ‑
MEMBER: So you disagree with the country information, despite the fact that your own personal experience has been that you have been able to go back to Nepal – – ‑?
APPLICANT: I did – I did – – -
MEMBER: - – – several times without incident and you said that it would be your intention to go back and visit your mother anyway? Do you understand that that is inconsistent evidence?
APPLICANT: Yes.
MEMBER: Okay, thank you. Anything else you would like to say to me about the prospect of returning to Nepal?
APPLICANT: About the legal consequence?
MEMBER: Anything at all you would like to say to me about the – that you haven’t already said to me about your – the prospects of returning to Nepal?
(No audible response.)
I also asked the Applicant about his recent religious observances.[52] He stated that he participates online but does not attend the religious services in Administrative Detention. The Applicant indicated that he last attended church prior to the COVID19 emergency. He stated that he participated in proselytising activities with his Christian community between 2011 and 2015 but not since then. There was no suggestion in his evidence to the Tribunal that his religious practices would change in any meaningful sense if he were to return to Nepal.
[52] Transcript 1, 90-93.
On the basis of the foregoing, the Tribunal finds that there are no legal consequences arising under Australia’s international obligations that would flow from the Cancellation Decision, being the first other consideration identified in Direction 99.
The Tribunal finds that this consideration weighs neutrally in the context of the decision on whether or not to revoke the Cancellation Decision.
Extent of impediments if removed (paras 9(1)(b) and 9.2 of Direction No 99)
Paragraph 9.2(1) of Direction No 99 provides:
(1)Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen’s age and health;
b) whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
It is accepted that the Applicant’s return to Nepal would be contrary to his intentions or wishes. His evidence has been entirely consistent to the effect that his future in Nepal would be less felicitous or agreeable than continuing to reside in Australia. Balanced against this is the fact that the Applicant has returned to Nepal several times since first arriving in Australia and also that he has put his time in Australia to some use in obtaining further qualifications and experience. He is relatively young and, with no criminal history in that country, he can be expected to adjust back into Nepalese society as well as any citizen of that country who returns after 15 years abroad.
That is not to say that the damage done to his family relationships in Nepal as a result of his serious offending in Australia have no implications for him on return. However, the Applicant has stated that he is committed to rehabilitating and making amend to those persons who have been affected by his serious offending in Australia. He also has the tools necessary to continue to engage with his online counsellors and his online faith-based community.
The Applicant enjoys an understanding of Nepalese culture, society and laws developed through his formative years in that country. He has a network of family support in Nepal and he is in reasonable health. I acknowledge that he has mental health needs, however, these will be accommodated by the same systems and resources that are available to all Nepalese citizens and there is nothing in the DFAT country information report on Nepal to suggest that the Applicant will be discriminatorily prevented from accessing the same level of physical or mental health care as other Nepalese citizens.
I find that the second other consideration, being the extent of impediments if removed, weighs against revoking the Cancellation Decision, and I further find that this consideration should be lightly weighted.
Impact on victims (paras 9(1)(c) and 9.3 of Direction No 99)
Paragraph 9.3(1) of Direction No 99 provides that:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
I note that Wife 3 has submitted a letter of support of the Applicant’s application for revocation of the Cancellation Decision. I note the inconsistency of this submission with the terms of the continuing Apprehended Violence Order (Domestic) which is binding on the Applicant.
I note that the views of the Applicant’s other victims about the Application for revocation of the Cancellation Decision are not known.
The Tribunal finds that this consideration weighs neutrally in the context of the decision on whether or not to revoke the cancelation decision.
Impact on Australian business interests (paras 9(1)(d) and 9.4 of Direction No 99)
Paragraph 9.4(1) of Direction No 99 states that decision-makers should consider the impact of a decision whereby the Applicant is not allowed to remain in Australia on any business interests. It provides:
(1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Both parties treated this consideration as not being relevant in the present case and 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 relevant considerations are to be taken into account. A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken in the context of earlier ministerial directions issued under s 499 of the Migration Act. The same considerations apply to the exercise required by Direction 99, which is materially in the same terms as those under early ministerial directions.
In general terms, I have adopted the approach suggested by judgments in the case of Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; and the Full Court judgment in Minister for Home Affairs v HSKJ [2018] FCAFC 217.
Summary
Primary considerations
Primary consideration 1.
For the reasons given above, the first primary consideration, being protection of the Australian community, weighs against revoking the Cancellation Decision. I further find that this consideration should be significantly weighted.
Primary consideration 2.
The second primary consideration, being family violence committed by the non‑citizen, weighs against revoking the Cancellation Decision. I further find that this consideration should be given significant weight.
Primary consideration 3.
For the reasons given above, the third primary consideration, being the strength, nature, and duration of ties to Australia, weighs in favour of revoking the Cancellation Decision. I further find this consideration should be moderately weighted.
Primary consideration 4.
For the reasons discussed already, the fourth primary consideration, being the best interests of minor children in Australia affected by the decision, weighs in favour of revoking the Cancellation Decision. I further find that this consideration should be moderately weighted.
Primary consideration 5.
For the reasons set out above, the fifth primary consideration, being the expectations of the Australian community, weighs against revoking the Cancellation Decision. I further find that significant weight must be placed on this consideration.
Other considerations
Legal consequences of the decision.
For reasons I have already discussed, this consideration weighs neutrally in the present case.
Extent of impediments.
With respect to second other consideration, being the extent of impediments if removed, this weighs against revoking the Cancellation Decision. This other consideration should be lightly weighted.
Impact on victims.
This consideration weighs neutrally in the present case.
Impact on Australian business interests.
As described in the Direction, this consideration is not relevant in the present case.
Conclusion
Having weighed the relevant considerations in favour of the revocation of the Cancellation Decision and the relevant considerations against revoking the Cancellation Decision, the Tribunal finds that the considerations in favour of revoking the Cancellation Decision do not outweigh the considerations against revoking the Cancellation Decision.
DECISION
The Reviewable Decision, being the decision of the delegate dated 25 August 2023 under s 501CA(4) of the Migration Act 1958 (Cth) is affirmed.
.................[Sgd].................................................
Associate
Dated: 2 January 2024
| Date of hearing: | 1 and 3 November 2023 |
| Representative for the Applicant: | Self-represented |
Representative for the Respondent: | Ms M Scott, Australian Government Solicitor |
Key Legal Topics
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