Gomes De Oliveira and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2022] AATA 512

Gomes De Oliveira and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 512 (7 March 2022)

Division:GENERAL DIVISION

File Number:          2021/10224

Re:Bruno Gomes De Oliviera  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member Rebecca Bellamy

Date:7 March 2022

Date of Written Reasons:      21 March 2022

Place:Brisbane

On 7 March 2022, the decision made by the delegate of the Respondent dated 16 December 2021 to refuse to grant the Applicant an Employer Nomination (Permanent) (Class EN) visa was set aside and substituted, such that the Tribunal found that the Applicant passes the character test under section 501(6) of the Migration Act 1958 (Cth) (the Act) and his application for an Employer Nomination (Permanent) (Class EN) visa should not be refused under s501(1) of the Act.

......................[SGD]...............................

Member R Bellamy

CATCHWORDS

MIGRATION – visa refusal – whether Applicant fails character test under s 501(6) – whether not of good character – whether more than minimal or remote risk of reoffending – domestic violence – offending out of character – evidence of reform – decision set aside and substituted.

LEGISLATION

Migration Act 1958 (Cth)

SECONDARY MATERIALS

Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Member R Bellamy

21 March 2022

INTRODUCTION

1. In 2007, the Applicant moved to Australia from Brazil on a Temporary Work (Skilled) (subclass 457) visa. On 24 December 2019, he applied for an Employer Nomination (Permanent) (Class EN) visa (“the visa”).

2. On 6 October 2020, a delegate of the Minister (“the Respondent”) notified the Applicant of the intention to refuse the visa application on character grounds. The notice informed the Applicant that the Respondent intended to consider whether there were grounds to refuse the visa on the basis that he did not pass the character test by virtue of s 501(6)(d) of the Migration Act 1958 (Cth) (“the Act”). On 20 December 2021, the Respondent refused to grant the visa under s 501(1) on the grounds that the Applicant did not pass s 501(6)(d) of the character test. On 28 December 2021, the Applicant sought review of the decision. While the notice of the reviewable decision states that the sponsor or nominee can apply to the Tribunal for review of the decision, I am satisfied that the Applicant has standing to apply as he has done. The Respondent did not take issue with the Applicant making the application.

3. The hearing of this application proceeded on 22 and 23 February 2022. The Applicant did not have legal representation. He and his wife gave evidence via video conference with the assistance of a Portuguese interpreter. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.

   ISSUES

4. Section 501(1) provides:

   “The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.”

5. The character test is found in s 501(6) of the Act. It contains several separate grounds upon which a person may not pass the character test. Section 501(6)(d) was the sole ground relied on by the Respondent.

6. Subsection 501(6)(d)(i) of the Act relevantly provides:

   For the purposes of this section, 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…

7. Accordingly, the issues for determination by this Tribunal are:

   (a)whether, if the Applicant were allowed to remain in Australia, there is a risk that he would engage in criminal conduct in Australia; and

   (b)if there is such a risk, meaning he does not pass the character test, whether the discretion in s 501(1) of the Act should be exercised to refuse to grant the visa.

   BACKGROUND

8. The Applicant was born in 1988. He lived in Brazil until 2007 when he came to Australia. At the time he had been in a serious relationship with “Ms A” in Brazil for around two years. He returned to Brazil in October 2008. He and Ms A were married in early 2009 and they lived together for some months until the Applicant returned to Australia in August 2009. As Ms A did not want to move to Australia, the marriage ultimately ended. They remain on good terms and Ms A provided a letter of support for the Applicant in which she spoke positively of him and their relationship.

9. In February 2011, the police were called to an address after a passer-by heard yelling. The Applicant and his brother, who also lives in Australia, told the police they had been arguing. There were no visible injuries and no further action was taken. I mention this because it was put forward by the Respondent as a possible instance of family violence. However, there is no evidence of violence, verbal abuse or threats. I am satisfied that it was harmless argument.    

10. On 24 April 2011, the Applicant was caught driving with middle range prescribed concentration of alcohol for which he was fined and had his licence disqualified for six months. He told the Tribunal that he was out with friends and the designated driver did not take his role seriously: he could hardly walk when they left the pub. The Applicant had consumed the least alcohol, being three beers, and he “took this risk” thinking he was “around the range – the limit”. They were around 120km away from home. He thinks perhaps not having eaten put him over the limit. There is no evidence that the Applicant has committed any other traffic infringements in Australia.

11. According to contemporaneous police records, on 18 November 2014, the Applicant had an argument with his then partner, “Ms B”. They had been in a relationship for around three and a half years and living together for two years. After calling her names, he punched her in the upper arm and back of the head with a closed fist. She took shelter in the toilet, locking the door. The Applicant called her parents and she heard him say “I don’t want her dead but I don’t want her alive either”, which made her even more scared. The Applicant then used a large kitchen knife to gain access to the toilet. He pointed it at Ms B and yelled at her before punching her head and left arm and kicking her left thigh. He then threw Ms M’s phone into the toilet and walked away. Ms B retrieved the phone from the toilet, went to her bedroom and sat on her bed crying and in pain. The Applicant entered the bedroom and smashed up the bedroom. He smashed a mirror and a lamp before pulling several items off the dressing table onto the bed and floor.

12. Ms B’s family called the police. Upon arrival, the police heard banging sounds coming from inside the unit. The police saw a chair on its side and a number of other items scattered throughout the unit. While the police were there, the Applicant said, in Portuguese, “If I go jail I will hurt you”. Ms B had scratch marks on her collar bone and neck, a headache and a lump on the back of her head, and a sore left forearm and left thigh.

13. The police notes also indicated that the Applicant had been violent to Ms B for the two years that they had lived together but she had not reported it because she was afraid of him. The Applicant was never given an opportunity to give his account to the police as, according to the police, an interpreter was not available.

14. The Applicant was arrested, and an Apprehended Violence Order (“AVO”) was subsequently issued by the Local Court prohibiting the Applicant from committing domestic violence against Ms B.

15. On 2 February 2015 the Applicant pleaded guilty to charges of “Destroy or Damage Property (Domestic Violence)” and “Assault Occasioning Actual Bodily Harm (Domestic Violence)”. He was sentenced to a fine and a 12 month good behaviour bond. The transcript of the sentencing proceedings indicate that the Magistrate initially thought that a pre-sentence report would have been extremely helpful but the matter proceeded without one due to the improbability of a Portuguese interpreter becoming available. Nor were the submissions made by the Applicant’s lawyer translated, meaning he did not know what his lawyer told the court, although his lawyer indicated that he had prior knowledge of what she was going to say.

16. The Applicant’s lawyer’s submissions dealt with the Applicant’s personal circumstances and did not address the allegations made against him. Notably she said there had been “ups and downs” in the Applicant’s relationship with Ms B over their approximately three year relationship and that they were still together. She said Ms B would have been there to support him but she had moved to Rockhampton where she and the Applicant planned to live. She said the violence occurred in the context of a distressing situation at the Applicant’s workplace and his pent-up emotions flowed into his home life, however he did not see that as an excuse for what he did. He and Ms B had decided to move to Rockhampton to get away from that work situation. Since the offending, the Applicant had sought assistance from his spiritual chaplain who was providing counselling which the Applicant found very helpful. He had ceased drinking completely in an effort to address the issues that had caused in his life.

17. In these proceedings, the Applicant said he had not consumed any alcohol on the day of the domestic violence, and that his lawyer’s comment about him ceasing alcohol was related to the problems that alcohol can bring such as when he lost his licence for drink driving, and to the religious counselling he had been doing which was another reason he stopped drinking. He said he had been a social drinker but never a heavy drinker.

18. The learned Magistrate’s sentencing remarks were translated for the Applicant. His Honour’s remarks included the following:

    “These are very serious matters and there is enormous publicity associated with domestic violence to get the message through that this behaviour is unacceptable. If you are experiencing difficulties at work, then there are avenues that you can properly take to deal with them rather than taking it out on your spouse. I hope that you never appear before a court again for this or any similar offence.”

19. His Honour apparently accepted the allegations in the police records that gave rise to the two charges. However, His Honour did not make any reference to the allegation that there had been previous domestic violence. In these proceedings, the Applicant denied that there had been any violence apart from the violence that he was charged with. He said Ms B was very angry with him and that maybe she made that allegation out of spite. According to the Applicant, Ms B had gone to the police afterwards and asked them to take no action, although she did not specifically withdraw the allegation that there had been violence for two years. The Applicant said he did not know why she did not do that.

20. Ms B provided a letter of support for the Applicant in these proceedings. She spoke about the Applicant in positive terms but did not address the domestic violence, instead stating:

    “I wrote this letter not to mention the problems in the past that are already known. I thought it best not to mention those here but instead to highlight the good. Bruno is a big-hearted man, he made mistakes but that is part of all our lives. Few people know how to recognize, repent and change their attitudes, and Bruno is one of those few…I wish him the best and all the happiness in the world, and I didn’t want what happened between us to become a problem in his life because he deserves to be happy.”

21. Ms B also said in the letter that after moving to Rockhampton, she and the Applicant lived next door to her parents and that the Applicant “continued to be a good partner” and they were both happy. She said the relationship did not work out in the long run and they broke up.

22. According to the Applicant, he did not want to contact Ms B to ask for a letter because he did not want to influence her in any way, so his brother approached her on his behalf. Ms B declined to give evidence in the hearing - she said she did not want to be involved any further - so it was not possible to ask her about her allegation that there had been previous violence. 

23. I asked the Applicant about his lawyer’s comment to the court that there had been “ups and downs in the relationship”. He said they had experienced good moments and bad moments. Later in the hearing he said they had each been jealous of each other and that sometimes led to arguments.     

24. In a letter the Applicant wrote to the Respondent addressing his offending, he said he was unhappy at work, his debts were accumulating, and “I couldn’t bear it anymore and I ended up exploding and freaking out because of so many negative things that had happened to me in the past few years”. He said he made a “very serious mistake” with the person he loved and he regretted it. He had sought counselling from a Pastor that had helped him change his thoughts and actions through words of wisdom and biblical teachings, which had helped him become a better person.

25. In the hearing, the Applicant disclosed that the argument and violence had been sparked by his discovery that Ms B was cheating on him. He had seen online conversations she had been having with another man, in which she discussed her sex life with the Applicant, and he saw nude photos she and this other man had exchanged. The Applicant said he could not remember exactly what happened, but he knows he lost his temper, and he feels horrible for what he did. He did not deny any of the alleged offending, except he said he threw the iPhone on the floor, not into the toilet, and he denied that he had been violent on other occasions. He said his lawyer had advised him not to mention the infidelity because that could look like he was blaming Ms B for his anger. The Applicant indicated that the work stress that he had been under had contributed to his aggression.

26. The Applicant was assessed by a psychologist for the purpose of these proceedings and that person’s report did not mention Ms B’s infidelity. The Applicant was adamant that he did tell the psychologist that he had exploded after seeing the photos. He said he did not know why it was not mentioned and suggested that it could have been lost in translation. It does seem that some information was lost or confused in translation in relation to that report, and I will come to that in more detail later in these reasons.  

27. The Applicant’s current partner’s understanding of the reason for the conflict between the Applicant and Ms B that day was that he had found nude photos and that she was on the dating website, lost his temper and he assaulted Ms B. The Applicant told her about the assault and he told her it was the only time it had happened. I am inclined to accept that the Applicant became violent with Ms B because he discovered she had been unfaithful in the context of a highly stressful work situation.

28. Following the domestic violence, the Applicant could not afford psychological assistance as all his money went to his lawyer. However, he considers that the religious counselling he did was the best form of rehabilitation. He was too ashamed to disclose Ms B’s infidelity and his violence, but he told the Pastor about the regular arguments and said he wanted to become a better person and to work things out with Ms B. He sought guidance and private bible readings. He found what he was searching for in the bible, for example the tenet that one must treat one’s wife with the utmost respect.

29. Ms B moved in with a friend after the domestic violence. She and the Applicant subsequently lived together in Rockhampton before the relationship ended in mid-2015.

30. On 25 November 2015, the Applicant submitted an application for a Temporary Work (Skilled) (Class UC) visa. The visa was granted on 31 December 2015. His criminal convictions were not declared in that application. According to the Applicant, as English is not his first language, he placed his trust in the migration agent who prepared the application. He did not complete the application, he was not aware of the character questions and his immigration agent did not ask him about criminal convictions. 

31. The migration agent who assisted the Applicant with his current visa application, Mr Taylor, provided a statement in which he said the Applicant approached him for his help with that application and gave him an Australian Federal Police Certificate listing his offences. Mr Taylor thought it best practice to check whether the offences had been declared in the Applicant’s 2015 application. The Applicant did not have a copy of the application and he requested a copy from his previous migration agent, which was provided on 3 December 2019. Mr Taylor requested a Fact Sheet from the court with the intention of declaring the omission in the current application. The application had to be lodged by 31 December 2019 and the Fact Sheet was not provided until 9 January 2020. Mr Taylor was in the process of preparing to upload the Facts Sheet and a covering letter explaining the omission when he received a Request For Information from the Respondent on 14 January 2020.  

32. I accept that the Applicant was not aware of an obligation to disclose his criminal offending in the 2015 application and that the omission was inadvertent. I accept Mr Taylor’s evidence that the Applicant did disclose his police record to him in relation to the current application and that Mr Taylor made genuine and diligent efforts, on the Applicant’s behalf, to disclose the Applicant’s criminal history and the fact that it had been omitted from the 2015 application, to the Respondent.

33. The Applicant completed an Incoming Passenger Card (“IPC”) on 30 December 2016. The card was in English and it contained a question “Do you have any criminal conviction/s?”. The Applicant ticked “No” which was incorrect. The Respondent contends that the Applicant answered that question dishonestly. According to the Applicant, in Brazil a person is considered a criminal if they get arrested and go to gaol, and that is how he interpreted the question. He said on that particular occasion there were a thousand things going through his head including the deaths of his grandparents and saying goodbye to them.

34. The Applicant also ticked “No” to 12 of the other 13 questions on the IPC, including the question “Were you in Africa, South/Central America or the Caribbean in the last 6 days?”. That, too, was a false statement as he admitted in the hearing that he had flown from Chile. When that was put to him he said “See, that's another question that I answered incorrectly”. It seems unlikely that the Applicant intended to deceive the Government about having been in South America given he would have known that he had to present his passport and IPC before exiting the airport. That false statement seems to have been the result of carelessness. I am satisfied that he was also careless, rather than dishonest, with respect to the question about his criminal convictions. That is not an excuse. The Applicant knew he was required to provide truthful answers and he signed a declaration to the effect that he had. However, I am not satisfied that he intended to deceive on this occasion.       

35. In 2017, the Applicant entered into a relationship with a “Ms C”, although they never lived together. She had known the Applicant since 2010, and she provided a letter of support in which she spoke positively about him. In that letter she said she had been in an abusive relationship in 2014 and that the Applicant had come into her life as a “gift from God” and that he was a vital part of her healing process. She described him as respectful, caring and patient. She said he never spoke rudely to her, and there was never any disrespect or abuse between them. They parted on good terms and remain friends.        

1. In the Applicant’s estimation, he and Ms C were together for several months but not longer than one year. 

2. The Applicant’s next relationship was with his current wife, “Ms D”. They met when he visited Brazil in 2016, they started a relationship in October or November 2017, and they married in October 2018.

3. On 22 November 2021, the Applicant made a complaint to the management at his work about the way a colleague had treated Ms D, who also worked there. The complaint was also signed by Ms D. The colleague had been physically aggressive and threatening towards Ms D and also threatened the Applicant. The Applicant put this forward as an example of him resolving conflict without resorting to violence. Ms D told the Tribunal that during a break in the work canteen, she saw an empty chair and took it. The colleague yanked the chair from her hands. The Applicant saw it and he gave her his chair to sit on and he ate standing up. The colleague then started looking at her, and he swore and yelled at her. The Applicant reported it to a supervisor. The man then made threats, saying “Let's sort this out outside” and the Applicant ignored him. She and the Applicant then went back to work. As she hardly speaks any English, the Applicant made a written complaint on her behalf.

4. According to the Applicant Ms D was very frightened by that colleague and she did not want to return to work the day after the incident. He had responded to the colleague by saying “Okay, let's see you outside then” with the intention that if this person did wait for him outside, he would get his supervisor and show him what he was doing.

5. The Applicant described his relationship with Ms D as “simply perfect” with a lot of love and mutual respect. He said they do not have any reasons to argue. Ms D described the Applicant as a wonderful person and also said their relationship was perfect. I had the benefit of observing her while she gave evidence and she impressed as sincere. She said she has never felt threatened by the Applicant and in fact she feels protected by him.

6. The Applicant and Ms D have experienced some stress over the Applicant’s visa situation, in fact the Applicant described the hearing as the hardest moment of his life, but apart from that they have hardly experienced any significant stressors in the four years they have been together. Jealousy has not been an issue for them. According to Ms D, she and the Applicant have discussed what would happen if one of them were to lose interest and they decided that they would let the other know and then they would each follow their own paths.

7. Overall, I found the Applicant and his wife to be witnesses of credit. The Applicant accepted that he had been violent to Ms B on one occasion, and he accepted that he had done some of the things alleged by Ms B despite not being able to recall those things. However, he categorically denied ever having been violent towards her previously. Nor is there any evidence that the event that triggered his violence, being his discovery that Ms B had been unfaithful, had ever happened before. It does not assist the Applicant that Ms B never withdrew that allegation despite having opportunities to do that. On the other hand, it seems anomalous that, if the Applicant had been assaulting Ms B over a two year period and frightening her into keeping it a secret, he would then expose himself by phoning her parents in the midst of an attack on her and tell them that he did not want her to be alive. 

8. Ms B provided a letter of support in circumstances where it does not seem to have benefitted her to do so, i.e. she has no current connection to the Applicant. Further, her refusal to give oral evidence indicates that she feels no pressure to assist the Applicant. On the evidence before me, I cannot draw a reasonable inference about what evidence she might or might not have given had she given evidence in the hearing. However I do have regard to the fact that she chose to provide a letter of support that spoke positively about the Applicant and that her words “continued to be a good partner” do not sit comfortably with the Applicant having been violent to her for a two year period.

9. The Applicant was not charged with any previous violence against Ms B and the learned sentencing Magistrate did not make a finding that there was a history of violence. None of the evidence given by the Applicant’s other intimate partners indicated that he had been violent or aggressive toward them. In fact, they spoke very positively about the way he treated them. On the evidence before me, I am satisfied that that the Applicant did and said the things that Ms B alleged he did on 18 November 2014, and that he was not otherwise violent or aggressive toward her.   

10. I further find that the Applicant was not affected by substances when he assaulted Ms B and that he does not, and has not ever had, a problem with drugs or alcohol.           

    Whether there is a risk that the Applicant will engage in criminal conduct in Australia

11. In applying this subsection, I am guided by paragraph 6 of section 2 of Annex A of Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) which provides that the grounds are enlivened if there is evidence suggesting that there is “more than a minimal or remote chance” that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act. Further, it is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in conduct for which a criminal conviction could be recorded.

12. In determining whether there was a risk that the Applicant would engage in criminal conduct in Australia, the delegate took into account the nature and seriousness of harm to the community from further offending and further (non-criminal) provision of false or misleading information to the Department. Those matters are not relevant to whether there is a risk of future criminal offending. They will become relevant only if it is determined that there is a risk of re-offending.   

13. This is not a case where the offending resulted from substance abuse. The Applicant is not facing the challenge of managing an addiction or changing an entrenched pattern of dysfunctional behaviour. I accept the Applicant’s explanation for the drink-driving, being that he drove because, among his friends, he had consumed the least alcohol, he thought he was around the limit and they were 120km from home. He should have been more careful given the catastrophic harm that can result from driving over the limit. He has been careful in the following 11 years. There is no evidence of any other traffic infringements or driving offences.

14. The domestic violence and property damage were a result of the Applicant losing his temper and failing to restrain himself. He said he still feels terrible about it and he will carry the burden of it for the rest of his life. When asked if he thought the assault was partly or wholly Ms B’s fault. He said:

    “No, not in any way. No, so she was not to blame for my reaction and the aggression.  She was wrong in her betrayal, and I was wrong in my reaction. The right thing to do would have been to just break up and split up. So I own up to my mistakes.  She's not the one to blame for what happened.”

15. The Applicant considers that he was a very immature and irresponsible person when he committed the assault, and that he is now a very different person, he has evolved. If he had the maturity that he has today, he would never have done it. He is very embarrassed and very ashamed. What he did back then goes against his principles. 

16. Several people provided character references for the Applicant. Anilto Ferreira Da Fonceca is the Pastor who provided religious counselling to the Applicant. He said he is a family friend of more than 15 years, who met the Applicant when he was a young man. He became good friends with the Applicant in Australia and the Applicant trusted him to be his spiritual guide. The Applicant sought his advice about how to deal with problems he was going through with his partner. The Applicant asked him to tell him Bible stories that had similarities with what he was going through. They spoke nearly every day as they worked together. He described the Applicant as very polite and kind with all those he knew. When Mr Fonceca had a problem with his health, at a time when the Applicant lived in another city, the Applicant travelled to be by his side and help as much as he could. Unfortunately, Mr Fonceca’s health did not improve and he returned to Brazil. The evidence before me includes certificates of Mr Fonceca’s ordination in Rockhampton and Inverell (both places where the Applicant lived) as a Minister of the Heaven’s Song Philadelphia Christian Centre The Church of Jesus, King of Kings and Lord of Lords. I do not have any knowledge of that particular Church however, I accept the evidence of the Applicant and Mr Fonceca about the spiritual guidance that Ms Fonceca provided and the benefit the Applicant gained from it.    

17. Ms D provided two letters in which she spoke positively about the Applicant and their relationship. The Applicant’s brother provided a letter in which he described the Applicant as a good human being, and a good brother and friend. He said the Applicant is also an animal lover and that his dogs like the Applicant more than they like him. A friend of the Applicant, Michelle, provided a letter describing the Applicant as honest, hard-working, very kind and helpful. It appears that she has known him for eight years. Another friend, Rogerio, appears to have known the Applicant for around 15 years as a co-worker and friend. He spoke very positively about the Applicant. Another friend, Erika, has known the Applicant since 2007. She worked with him for a while. She described him as not only a friend, but a part of her family. She said she had seen positive changes in his personality since she had known him. I have already summarised the letters from Ms A, Ms B and Ms C. Ms A mentioned that she and the Applicant went through a few crises, like every couple does, and they learned a lot with each other.

18. None of the letters directly address the Applicant’s offending or note a positive change in him since the offending, although Erika referred to positive changes in general. Based on the character references, I accept that the Applicant is regarded as a good, kind, non-aggressive person by those close to him.   

19. In addition to the criminal and traffic offences, the Applicant provided false information on an IPC. The Applicant should also have been more careful. However, I do not consider that his carelessness in relation to the IPC increases the risk that he will commit criminal offences if he remains in Australia.

20. Ms Kim Dilati, Consultant Clinical and Forensic Psychologist, provided a report dated 20 January 2022. She conducted several psychometric assessments on the Applicant in a two hour session. The relevance of some of these assessments to the risk of re-offending is not readily apparent.

21. The Symptom Checklist 90 (SCL-90) is a measure of current, point-in-time psychological symptom status. The Applicant’s results were suggestive of distress and disturbances on the Somatisation scale which reflects distress arising from bodily perceptions. The Personality Assessment Inventory (PAI) provides information relevant to clinical diagnosis, treatment planning, and screening for psychopathology. The Applicant’s results suggested that he responded appropriately and did not attempt to portray himself in an exaggerated positive manner, negative manner, inconsistently nor infrequently. None of the following were indicated: Anxiety, Somatization, Anxiety Related Disorders, Depression, Mania, Paranoia, Schizophrenia, Borderline features, Antisocial, Alcohol problems, or Drug problems (despite his endorsement of somatisation on the SCL-90).

22. The Depression, Anxiety and Stress Scale (DASS-21) indicated that the Applicant was within the normal range of depression, anxiety and stress suggesting that he does not suffer from difficulties in these areas. The Posttraumatic Check List - Civilian version (PCL-C) was administered. The displayed minor symptoms consistent with Mild Post-Traumatic Stress Disorder (“PTSD”). Ms Dilati speculated that this was most likely due to his history of exposure to domestic violence (in his parents’ relationship), an assault on his father when he was growing up, familial conflict, and financial hardship. She noted that PTSD is associated with an increased risk of violence, however the majority of persons with PTSD have never engaged in violence, and that when other factors like alcohol and drug misuse, additional psychiatric disorders, or younger age are considered, the association between PTSD and violence is increased. I note that the Applicant does not misuse alcohol or drugs, he does not suffer from any psychiatric disorders and he is 34 years old. 

23. According to Ms Dilati, the Historical, Clinical Risk Management-20, Version 3 (HCR-20 v3) “seeks to identify past, present, and future risk markers that relate to a person’s probability and management of risk in a person with a mental illness causing harm to another” and is an extremely important part of psychological and psychiatric practice, safe and effective care, and making decisions on transition between services. It seems to have been assumed by Ms Dilati that this tool was suitable for the Applicant despite the absence of any formally diagnosed mental illness and the PCL-C indicating only minor symptoms consistent with mild PTSD.

24. Ms Dilati assessed the Applicant as being in the mild to moderate range with respect to risk of future violence, according to the HCR-20 v3 due to the presence of the following risk factors:

    ·Violence as an adult (18 and over);

    ·Other Antisocial Behaviour as adolescent (13-17);

    ·Other Antisocial Behaviour as an adult (18 and over);

    ·Problems with intimate relationships;

    ·Problems with major mental disorder (psychotic, major mood disorder, major mental disorder);

    ·Personality Disorder (Antisocial, Psychopathic, & Dissocial); and

    ·Traumatic Experiences - Victimization / Trauma, Adverse Childrearing Experiences;

    the possible presence of the following risk factors:

    ·Problems with substance use;

    ·History of Violent Attitudes; and

    ·Problems with professional services and plans, living situation, personal situation, treatment or supervision compliance & response, and stress or coping.

    and the absence of the following protective factors:

    ·Insight into Mental Disorder, Violence Risk, or need for treatment; and

    ·Treatment or Supervision Compliance or responsiveness;

25. With respect, I do not agree with Ms Dilati with respect to the presence or absence of many of the risk factors, and it may be that she did not have access to the same information, or the same level of detail, that the Tribunal had before it. There is no evidence of:

    ·antisocial behaviour as an adolescent;

    ·problems with intimate relationships (plural);

    ·problems with a major mental disorder;

    ·a personality disorder (Antisocial, Psychopathic, & Dissocial);

    ·problems with substance use, history of violent attitudes or current problems with living situation, personal situation, stress or coping; or

    ·lack of insight into a mental disorder, violence risk or need for treatment.

26. Ms Dilati also said that the Applicant demonstrated somewhat limited insight and judgement into his mental health and that he described a difficult relationship history, but it is difficult to see the basis for those comments. Two former partners and the Applicant’s current wife indicated that they had positive, healthy relationships with the Applicant. The Applicant told Ms Dilati that he had a brief history of mental health difficulties as a result of his parents’ marital problems for which he sought professional mental health support as a teenager. He denied a history of inpatient admissions, medication for mental health issues, or regular psychological treatment for mental health after adolescence. He said his strong Christian faith helps him cope with adversity.

27. Ms Dilati applied the Spousal Assault Risk Assessment Guide Version 3 (SARA-V3), which helps to characterize the risk an individual poses to his spouse, children, another family member, or any other person involved in terms of likelihood, imminence, and severity. She said the Applicant scored within the low to moderate range of risk of future intimate partner violence due to the presence of several risk factors including his history of intimate partner violence, intimidation, threats, physical harm, severe intimate partner violence, problems with trauma/victimisation and intimate relationships. Five of these seven risk factors overlap – they all relate to a historical offending episode. Nor is there evidence of problems in intimate relationships (plural). Ms Dilati said the Applicant scored in the low range with respect to imminent violence.

28. Ms Dilati noted that the Applicant did not justify his offending and was highly remorseful. She said he was “immature” at the time, emotionally reactive, regretful and ashamed. She understood that there had not been any further episodes, urges or incidents of violence or aggression and the Applicant has managed his emotions with prudence and caution. She noted that the Applicant had attributed his rehabilitation and emotional regulation skills to his strengthened faith, maturity, self-awareness, regular support from a Pastor, and coping skills that he had gained over the past seven years. She said he believed these factors have mitigated any reoffending behaviours, however he was willing to undertake a period of professional counselling to ensure his risk remained stable. She said, “these mitigating factors are suggestive of attitudes and cognitions likely to reduce future aggression if [the Applicant] engages in psychological therapy”.

29. Ms Dilati listed dozens of risk factors that she said are linked to a greater likelihood of intimate partner violence. It is not apparent whether these were linked to an assessment tool. The Applicant has very few and those that he does have are historical, being history of violence, low income growing up, relationship conflict including jealously and witnessing violence between his parents as a child. Ms Dilati said that since the offending, the risk factors have decreased and the protective factors have increased. The Respondent’s lawyer, who presented the Respondent’s case as well as it could have been presented, pointed out that jealously was a risk factor and it had not been taken into account in Ms Dilati’s. That is so, and I take into account that while there is no jealously in the Applicant’s marriage, it cannot be ruled out in the future.  

30. Ms Dilati opined that the Applicant’s PTSD precipitated his emotional dysregulation, externalised anger, and violence towards Ms B. She said that individuals like the Applicant can face an increased risk of violence compared to an individual with no history of violence and which can be exacerbated by a diagnosis of PTSD due to the individual’s perception or misperception of threat, difficulties regulating difficult emotions, and the fight or flight response. Again, I note that the Applicant has not been clinically diagnosed with PTSD and only indicated minor symptoms associated with mild PTSD.

31. Ms Dilati also stated that she had concerns about the Applicant’s role as an abattoir worker which she said can desensitise a person to violence and increase their propensity to violence. She did not say that abattoir work does, or is likely to, desensitise a person to violence, only that it can. She referenced a newspaper article that summarised some studies that had found that towns with abattoirs had higher rates of domestic violence and violent crimes including murder and rape. The article stated that it had been established that the more positive a person's attitude is to animals, the lower their aggression levels, and that the reverse is also true – if a person is cruel to animals, they are more likely to be violent to humans. The article quoted one researcher saying, about abattoirs workers, “They're a pretty angry bunch and that anger shows”.

1. There is not any evidence about whether the Applicant’s job involves dealing with live animals or cruelty to animals, nor what the Applicant’s attitude to animals is. The Applicant’s brother mentioned that the Applicant loves animals including his dogs. When the interpreter’s dog (who was off camera) barked during the hearing, the Applicant spontaneously smiled. The limited evidence before me concerning the Applicant’s attitude to animals indicates that it is a positive one. There is no evidence that the Applicant has elevated anger levels and Ms Dilati did not say that was the case. The Applicant did not resort to violence when challenged by a colleague in his workplace who had been aggressive and rude to his wife. I do not accept that the Applicant’s work increases his risk of violence.  

2. Ms Dilati concluded that:

   “to achieve stability in his risk factors, [the Applicant] will require regular psychological interventions to ensure his clinical and risk factors reduce.”

3. She recommended:

   “regular therapy with a forensic psychologist over the next 12 -24 months to ensure he is managing his stressors effectively…If he attends to specialised psychological treatment over the next 12 to 24 months (in addition to maintenance sessions), I am confident that his risk or violence will remain stable.”

4. It is not apparent to me how reducing risk factors will achieve stability in risk factors. Nor is apparent why 12 to 24 months of therapy is recommended if it is not expected to result in any reduction in the risk of violence, only that it would stabilise it. The Applicant has gone over seven years without re-offending and there is no evidence to suggest that his risk of violence is increasing such that it needs to be stabilised.

5. Ms Dilati did not give evidence in the hearing so it was not possible to raise my concerns with her and seek clarification. Accordingly, I am unable to place much reliance on Ms Dilati’s conclusions, however I do take into account the information she provided about risk factors and the observations she made that seem to be based on correct information.          

6. The Applicant has not engaged in psychological counselling or anger management programs. The counselling he chose may be regarded as unconventional in these modern times but it was evidently effective. What is more, he did it of his own volition. The Respondent contended that, since the domestic violence offending, the Applicant has not been in a position to demonstrate how he would respond to another betrayal like the one that precipitated the offending. That is true, although infidelity seems most unlikely in his current relationship. The Applicant asked whether he had to suffer betrayal again in order to prove he has reformed. While, from a risk assessment perspective, that would be beneficial, the Applicant’s exasperation about this is quite understandable. My answer to his question is no, there is sufficient evidence of reform.

7. The possibility that the Applicant would perpetrate violence on anyone in the future seems minimal. Equally the possibility that he would drink-drive or commit any other crime seems minimal. I am not satisfied that there is more than a minimal or remote chance that the Applicant if allowed to remain in Australia, would engage in criminal conduct. He does not fail the character test under s501 (6)(d)(i) of the Act.

   DECISION

8. On 7 March 2022, the decision made by the delegate of the Respondent dated 16 December 2021 to refuse to grant the Applicant an Employer Nomination (Permanent) (Class EN) visa was set aside and substituted, such that the Tribunal found that the Applicant passes the character test under section 501(6) of the Migration Act 1958 (Cth) (the Act) and his application for an Employer Nomination (Permanent) (Class EN) visa should not be refused under s501(1) of the Act.

I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

...............................[SGD].......................................

Associate

Dated: 21 March 2022

Date of hearing:

22 and 23 February 2022

Applicant:

By videoconference

Solicitor for the Respondent

Ms Claire Laizans  

Minter Ellison

ANNEXURE A – EXHIBIT LIST

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G29 paged 1 to 230)	R	-	12 January 2022
A1	Statement of the Applicant (22 pages) including attachments. 1.    Letter of Ms B dated 20 January 2022 (1 page) 2.    Letter of the Applicant’s Brother (1 page) dated 29 January 2022	A	27 January 2022	27 January 2022
A2	Letter from the Applicant’s Wife (2 pages)	A	4 January 2022	7 January 2022
A3	Letter from Ms C (3 pages)	A	2 January 2022	7 January 2022
A4	Letter from Anilto Ferreira da Fonceca (including Certified English Translation dated 15 January 2022) (12 pages)	A	-	27 January 2022
A5	Letter from Ms A (including Certified English Translation dated 15 January 2022) (8 pages)	A	6 January 2022	27 January 2022
A6	Letter from Cathy McEnroe - Thomas Foods International (1 Page	A	27 January 2022	27 January 2022
A7	Psychological Assessment of Dr Kim Dilati and Annexures (19 pages)	A	20 January 2022	27 January 2022
A8	Further Statement of the Applicant (5 pages)	A	16 February 2022	17 February 2022
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 10)	R	9 February 2022	9 February 2022
R2	Respondent’s Supplementary Documents (S1 to S16, paged 1 to 38)	R	-	9 February 2022