Hodgson-Te Tau and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Hodgson-Te Tau and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1770 (12 June 2020)
Division:GENERAL DIVISION
File Number(s): 2020/1894
Re:Wiremu Hodgson-Te Tau
APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth
Date:12 June 2020
Place:Adelaide

The Tribunal sets aside the decision made by the delegate of the Respondent dated 23 March 2020 and in substitution decides not to refuse to grant the Applicant a Bridging E (Class WE) visa under s 501(1) of the Migration Act 1958.
............................[Sgnd]........................................
Senior Member B J Illingworth
CATCHWORDS
MIGRATION – refusal of Bridging E (Class WE) Visa – failure to pass the character test – whether discretion to set aside the delegate’s decision should be exercised – whether there is any risk of the Applicant engaging in future criminal conduct – whether the Applicant poses a risk of harm to the Australian community – Direction No. 79 – decision under review set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
QKVH v Minister for Home Affairs [2018] AATA 1855
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
REASONS FOR DECISION
Senior Member B J Illingworth
12 June 2020
INTRODUCTION

Mr Wiremu Hodgson-Te Tau (“the Applicant”) is a New Zealand citizen who resided in Australia pursuant to a Special Category (subclass 444) visa which was cancelled on 30 October 2019 pursuant to s 116(1)(e)(ii) of the Migration Act 1958 (Cth) (“the Act”), following his conviction for criminal offences. The cancellation of his Special Category (subclass 444) visa is the subject of an application for review before the Migration and Refugee Division of the Administrative Appeals Tribunal. The Applicant requested the Tribunal await his sentencing for those offences, on or about 15 June 2020, before deciding the application.
The Applicant applied for a Bridging E (Class WE) visa (“Bridging visa”) under s 501(1) of the Act seeking his release back into the community pending the outcome of his criminal proceedings and the decision on the reinstatement of his visa by the Migration and Refugee Division of the Administrative Appeals Tribunal.
This matter relates to an application filed by the Applicant for a review of a decision made by a delegate of the Minister of Home Affairs, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, (“the Respondent”) to refuse to grant him a Bridging visa under s 501(1) of the Act.
At the hearing, the Applicant appeared via video link and was self-represented. The Respondent was represented by Mr Tom Ellison, Australian Government Solicitor, who appeared via telephone.
BACKGROUND
The Applicant was born in December 2000 and is aged 19 years. He is a citizen of New Zealand.
The Applicant first arrived in Australia in October 2008 as a holder of a Special Category (subclass 444) visa.
The Applicant has, on occasion, returned to New Zealand to attend school and on upon each return to Australia he applied for, and was granted, a new Special Category (subclass 444) visa.
On 27 June 2019, the Applicant was charged by South Australia Police with the following offences:
(a)aggravated assault – on domestic partner (4 counts);
(b)aggravated assault cause harm – on domestic partner (1 count); and
(c)property damage (2 counts).
The offences commenced approximately five weeks after the Applicant and his domestic ex-partner started living together at his ex-partner’s father’s house. The charges relate to assaults against his domestic ex-partner which were committed between 21 May 2019 and 26 June 2019. The assaults included the Applicant throwing the victim’s mobile phone and damaging the screen, grabbing hold of and bruising the victim’s arms, throwing glass at the victim which struck her in the head, pushing the victim into a bed post causing pain, grabbing the victim’s jaw and pushing a lit cigarette onto the victim’s face.
The offences of property damage occurred on 27 June 2019 when he kicked a flywire screen door and a letterbox at his ex-partner’s house following and argument with her father. The father contacted the police. The Applicant was charged, placed on bail and an interim intervention order (“IVO”) was ordered.
The Applicant has not contacted his former partner directly or indirectly since his last offence and has complied with the terms and conditions of his bail agreement and IVO.
On 12 September 2019, the Applicant pleaded guilty to the above charges. The Applicant is due to appear for sentencing in relation to those charges on 15 June 2020 before the Magistrates Court.
On 2 October 2019, the Department issued the Applicant a notice of intention to consider the cancellation of his Special Category (subclass 444) visa.[1]
[1] Exhibit A, G3/22-26.
On 29 October 2019, the Applicant provided submissions to the Respondent.
On 30 October 2019, the Applicant’s a Special Category (subclass 444) visa was cancelled under s 116(1)(e)(ii) of the Act on the basis of those offences.[2] It was considered that the Applicant’s continued presence in Australia may pose a risk to the safety of an individual or individuals, specifically his former partner. He has applied for a review of that decision to the Migration and Refugee Division of the Administrative Appeals Tribunal. Those Tribunal proceedings remain ongoing.
[2] Ibid G3/27-29.
On 2 November 2019, the Applicant allegedly committed the offence of disorderly behaviour. This charge is pending and is being defended.
On 19 December 2019, the Applicant was taken into immigration detention, where he remains.
On 23 December 2019, the Applicant lodged an application for a Bridging visa.[3] His intention was to remain in the community until the cancellation of his Special Category (subclass 444) visa is determined.
[3] Ibid G3/87-94.
On 20 February 2020, the Respondent issued the Applicant with a notice of intention to consider refusal of the Bridging visa under s 501(1) of the Act.[4]
[4] Ibid G3/46-49.
On 16 March 2020, the Applicant provided submissions to the Respondent in response to the notice.
On 23 March 2020, a delegate of the Respondent refused to grant the Applicant the Bridging visa under s 501(1) of the Act.[5] The Applicant was notified of the delegate’s decision on the same date.
[5] Ibid G3/12-20.
On 1 April 2020, the Applicant applied for a review of the refusal to grant the visa to the General Division of the Administrative Appeals Tribunal.[6]
[6] Ibid G1/1-9.
LEGISLATIVE FRAMEWORK
Section 501(1) of the Act provides that:
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. (emphasis added)
The character test is defined in s 501(6) of the Act. In this matter, the Respondent relied solely on s 501(6)(d)(i) of the Act in finding that the Applicant failed the character test. Section 501(6)(d)(i) 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;
(original emphasis)
If the Tribunal is satisfied that the Applicant passes the character test, the refusal decision must be set aside as the power to refuse to grant the Applicant a visa under 501(1) of the Act is not enlivened.
If the Tribunal is not satisfied that the Applicant passes the character test, the discretion under s 501(1) of the Act is enlivened. In considering whether to exercise the direction in s 501(1) of the Act, the Tribunal is bound in accordance with s 499(2A) of the Act to comply with any directions made under the Act. Relevantly, s 499(1) of the Act provides:
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
In this case, the relevant direction is Ministerial Direction No. 79 (“the Direction”) which was issued on 20 December 2019 and applies on and from 28 February 2019. The Direction replaces Ministerial Direction No. 65.
MINISTERIAL DIRECTION NO. 79
Paragraph 6(2) of Annex A to the Direction provides guidance on the application of the character test and assessment of risk in relation to the determination of an Applicant’s future conduct. Paragraph 6(2) provides that this ground is 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 to this, paragraph 6(3) of Annex A to the Direction provides:
It is not sufficient to find that someone 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 the specified conduct set out in section 501(6)(d) of the Act.
Where the discretion under s 501(1) of the Act is enlivened, the Tribunal is required to take into account the “Primary” and “Other” Considerations in Part B of the Direction.
The Primary Considerations are set out in paragraph 11(1) of the Direction, namely:
(a)protection of the Australian community from criminal or other serious conduct;
(b)the best interests of minor children in Australia; and
(c)expectations of the Australian community.
The Other Considerations which must be taken into account, where relevant, are set out in paragraph 12(1) of the Direction and include:
(a)international non-refoulement obligations;
(b)impact on family members;
(c)impact on victims; and
(d)impact on Australian business interests.
THE ISSUES BEFORE THE TRIBUNAL
The issues for the Tribunal to determine are:
(a)whether the Applicant passes the character test as defined in s 501(6) of the Act; and
(b)if the Applicant does not pass the character test, whether the discretion in s 501(1) of the Act should be exercised.
THE EVIDENCE
The Applicant’s Evidence
The Applicant was born in New Zealand in 2000 and is aged 17 years.
His biological mother was an alcoholic and drug addict. He was born suffering from alcohol-foetal syndrome. He was removed from the care of his natural mother and was placed in the care of his adoptive parents at four months of age. At a young age he was diagnosed with attention deficit hyperactivity disorder (“ADHD”) and was on medication for that condition for much of his school years. He has four older siblings, namely two brothers and two sisters, born to his adoptive parents.
The Applicant commenced school in New Zealand. He then arrived in Australia with his mother in October 2008 on a Special Category (subclass 444) visa, just prior to his eighth birthday. The Applicant’s father joined them in Australia two to three months later.
The Applicant went to primary school in Australia until the age of 11 years and then from 2011 to 2013 returned to New Zealand to live with his older sister and there attended school. In 2013, he returned to Australia and went to high school until 2014 when he returned to New Zealand to go to boarding school to train for the army. He remained in New Zealand for approximately 15 months and then moved back to Australia.
While the Applicant was at boarding school, he met his biological grandmother and two biological sisters. He does maintain occasional contact with his biological grandmother and sisters.
The Applicant remained at high school in Australia until his father’s mother (adoptive grandmother) passed away in New Zealand. The Applicant and his father went back to New Zealand. They stayed there for approximately 18 months and the Applicant attended school there until the end of the 2017 school year. He completed the equivalent of year 12.
In 2017, the Applicant met his biological mother but when he found out the truth about why she left him he ‘shoved her’ out of his life and has not seen or heard from her since. He continued to see his biological grandmother and sisters when his father made contact with them. The only contact that now occurs is if there is a reason, such as a wedding, but there is no spontaneous contact between them and the Applicant.
The Applicant said that he enjoyed his schooling. There was a period when in primary school he was bullied because of his size. He was much larger than other students of his same year. He said he was very sporty and had good friends. He would love to go back to school and formally complete year 12 and go to university. He would like to study maths and science.
The Applicant and his father returned to Australia. He had obtained employment working for his brother, Mr CA, who had his own business installing sprinkler systems in buildings, warehouses and houses. He was earning money by working with his brother in his fire protection business.
The Applicant said that when he was 18 he had finished his studies, commenced a relationship and wanted to move out of home and live with his girlfriend. He said he thought he knew what he was doing. His girlfriend was then aged 19 years. He met her in high school. He thought she was his best friend.
When asked why he committed the offences he said he thought he was trying to be something that he was not. He moved out of home thinking he knew everything. His parents had told him not to move out. He said that he and his ex-partner were good friends. Initially, they thought they would take things slow, but after the offer of work with his brother, they wanted to move in together. They would argue. Instead of looking for help and instead of walking away he ‘used his mouth’. He said he had no excuse for what he did. It was childish. He described this as a phase he went through as a teenager and that he thought he knew everything.
In relation to the offence involving the lit cigarette, the Applicant said that on the day of that offence he was frustrated. He felt it was impossible to use words and when the words would not work, he took action. He knew his conduct was wrong and described it as foolish. He said he ‘lost it’ at that time. He said he could not talk any more, he was lost and did not know what he was doing and snapped.
The Applicant said that he got on well with the ex-partner’s father. They had a good bond. They would have discussions about cars and had a good friendship but by the end of his time with the ex-partner the relationship had deteriorated.
The Applicant was asked by the Tribunal about evidence that he had been smoking marijuana and drinking whilst in his relationship. He said that he and the ex-partner would smoke marijuana about three to five times a week. The only affect it had on him was to make him sleep more. There was no food in the house. He drank alcohol occasionally and only when victim’s father was drinking. Neither marijuana nor alcohol gave rise to the commission of the offences.
After he stopped residing with the ex-partner he returned to live with his parents. They resided about a 15-minute drive from the ex-partner’s home. Since the day he left he has not been back to her home, has not telephoned her or communicated with her in any way and she has not communicated with him.
The Tribunal asked the Applicant about a pending charge of disorderly behaviour allegedly committed on or about 2 November 2019. The Tribunal warned of the Applicant about the privilege against self-incrimination. He said he was happy to discuss matter. He said that there are a large group of people and the police attended. Police asked him if he was the person who had jumped on the police car. He denied the allegation and denied that he was the person who verbally abused police. He admitted he was affected by alcohol at the time. He is defending that allegation and the hearing is listed on the day he is to be sentenced in respect of the other charges.
The Applicant said that after the offending he continued to live with his parents, and should he be permitted to return to the community would again live with his parents. He will return to work for his brother and should he be permitted to remain in Australia he will commence his apprenticeship.
The Applicant was asked about his relationship with his family members and any children. The Applicant has an older sister, MTT. She resides in South Australia and has two children namely an older daughter aged 19 years and a son, RTT, aged 14 years. RTT lived with the Applicant and his parents. The Applicant said he had a close relationship with RTT. He was more like his little brother. The Applicant assisted in the day to day care of RTT. His parents would go to work early so the Applicant would make sure RTT was ready for school, which was a five minute walk from their home, he would help him with his homework, they would go running together and he engaged with him every day whilst living at his parents.
Since being on home detention, the Applicant speaks with RTT at least three times a week. He continues to help him with school, talk about school and provides him with guidance in his daily life, including encouraging his schooling and not to make the same mistakes that the Applicant has. The Applicant said that RTT is not very sporty but enjoyed video games and he talked with him about video games.
The Applicant described his father as a great man and he has always aspired to be like him. His father coached rugby league including the New Zealand Army rugby league team and the South Australian rugby league team. He said his father had a great work ethic and is currently working as a safety officer. He is approaching 60 years of age and his health is very good.
The Applicant described his mother as a beautiful person who was his ‘rock’. She had taught him morals and to respect people. However, his mother is unwell. In 2018 she donated her kidney to her son, STT, but a few weeks after the donation the kidney failed. The Applicant’s parents and STT did not initially tell anyone about the failed transplant. The Applicant noticed a change in his mother and could see something was wrong. She now suffers from thrombocytosis, which is a blood clotting condition. She stopped smoking, became tired easily and would not do the cleaning and housework as often as she once did. His mother became depressed and returned to smoking and now suffers from chronic obstructive pulmonary disease (“COPD”).
The Applicant said that because of her health issues, his mother relied on him to look after RTT. Because the Applicant was about to start his apprenticeship, he was not always at work; hence, he would wake up his nephew every morning, make sure he was ready for school, and helped him with his homework.
The Applicant will sometimes look after his niece, LA, who is the seven-year-old daughter of his brother, CA. He would care for her on weekends and enjoyed a close relationship with her. They have a strong bond.
The Applicant’s brother, STT, also has a six-year-old son, LTT, who lives with his mother. The Applicant does not see his nephew as often as his niece. His brother will see LTT once a week or once a fortnight but his brother’s ability to engage with LTT is also impeded by his kidney disease. He has dialysis each alternate day. The Applicant has a good relationship with LTT, but not to the same extent as his niece and other nephew.
The Applicant said he has a lot of friends who also have children with whom he gets on very well, but he does not provide the love and parental support that he has given to his nephew RTT and niece LA and to a lesser extent nephew, LTT.

The Applicant also advised the Tribunal he had been engaged in a domestic violence prevention program which he started in or about November 2018. It was a 17-week program. However, he could no longer engage in that program on and from 19 December 2018, when he was taken into immigration detention.
The Applicant described the program. He said that he received a booklet which stepped out the various aspects of the program over the 17 weeks. It was a structured system. He said when he first started, he walked into a room, introduced himself, explained why he was there, the problems he had experienced in the past, and how to better oneself. They talked about self-improvement, anger management and the minimisation of violence. The Applicant attended and completed seven weeks of the 17-week course. The Applicant said that he was gifted the opportunity to undertake the course by the Magistrate following his plea of guilty and he hopes to return to complete the course if he is released and is returned to the community. He said that given the opportunity to undertake that course and given the passage of time since his offending, he has learned a lot about self-awareness and has changed.
In cross-examination, the Applicant was taken through each of his offences. He readily acknowledged his culpability and even corrected Counsel for the Respondent when one offence in the sequence was overlooked. He did not seek to minimise his offending.
The last offence occurred on 27 June 2019, when he attended the ex-partner’s house asking the whereabouts of his ex-partner. The ex-partner’s father said that his daughter had told him what he, the Applicant, had done. They argued, and the Applicant kicked the front door and the letterbox causing damage to both. The father called the police, and the Applicant was taken into custody, placed on bail, and an IVO was issued. This was the day on which he left the house and the relationship ended.
The Applicant said that the charged dates were the only occasion on which he committed an assault. He did not accept that there were other incidents of assault or threats. He did concede that his ex-partner wore a tracksuit so not to display the bruises she received. He also conceded that while ‘flipping out’ at that time he had threatened to ‘smash up the house’. He agreed that before his arrest he had behaved violently.
The Applicant said that he had not sought assistance before his arrest. He believed he could overcome the issue himself and thought he could control himself. He said that it is apparent now, that he can control himself, whereas before he could not. The Applicant accepted that at the time of the offending he had a problem with violence but did not believe he had continued to have that problem to the level he had at the time of the offending. He accepts that he made a mistake and he has learnt from those mistakes. He said the offending occurred nearly a year ago and he has been given the opportunity to reflect since then, and that he does not believe he has the problems that he experienced at the time of his offending.
When asked in cross-examination whether he needs further counselling support, he said “yes” and “no”. He explained that he still wants to seek support, but he said that he had gained a better insight into his offending. He believed that he still needs support, but not as much as he did at the time of the offending. He said that it had been 11 months since the date of his offending and that he has had time to reflect. Further, it has been six months since he has seen his family and friends, he has learnt a lot about himself and his mistakes.
The Applicant explained that he has the support of family and friends. He acknowledged those supports were available at the time of his offending but at that time he thought he was ‘top dog’. He said that he has now bettered himself and that he now knows he has people upon whom he can rely, for help and support. He referred to the large number of character references from family, friends and others that were before the Tribunal.
The Applicant conceded that he was a large gentleman and the victim was a very small lady who would not have had the ability to fight back against him. When asked if he ever stopped to think at the time about the difference in size, he said that he did but he went on to say he realised that he should not have assaulted his ex-partner no matter what her size.
The Applicant was cross-examined about the Magistrates Court proceedings. He again confirmed that sentencing had been deferred, including so he could attend the domestic violence prevention program. He could not remember the person who ran the program, but it was conducted in person. He then explained that he may have been referred to the program as early as September 2019. It was conducted every Thursday and run by two support workers. There were approximately 10 other attendees each week. The sessions ran for two to two and a half hours. He said that they would talk about how they have been throughout the week, what they had learnt and their personal problems. They would take a book home each week with tasks to complete, for example, community service or learning about respect and loyalty and about how to help others. Every person would then give a presentation to the group and the group would decide if a person passed or fail the task having put in the appropriate effort.
The Applicant said that he if he had not been taken into immigration detention, he would have attended approximately 24 sessions over the 17 weeks of the course. The Applicant was referred to court records which indicate he was removed from the domestic violence prevention program.[7] The Applicant was adamant that he was not removed from the program but could not complete the program because he was in immigration detention. He had also sought psychological counselling whilst in detention, to the extent that he talks to a nurse when he is feeling a bit down. This, he said, is informal, but he meets with a psychiatrist once a week.
[7] Exhibit B, G8/236.
The Applicant was cross-examined about the disorderly behaviour offence which is listed for trial on the same day sentencing for the domestic violence charges. He said he was happy to answer questions about the offence. He denied a dislike for police and explained that his family, and in particular his father, were members of the New Zealand Army. He has friends trying to become police officers. He acknowledged that yelling at police is unacceptable but explained that he asked police why he was being arrested. He said that there was a large group of people and he heard people yelling at the police, but he had nothing to do with it.
The Applicant reiterated his intention to return to live with his parents. His nephew, RTT, is still living with them and he will continue to play a father figure role, teach him what he has learnt in detention and teach him respect and morals. It is also his intention to continue to play a role in the lives of the children of his siblings and said that he will babysit them, take them out and bond with them, which is an opportunity he has lost in the last six months.
The Applicant confirmed that he will help around the family home, particularly because of his mother’s age and health conditions she cannot do the duties previously performed, such as mow the lawns. His mother worked for the Department of Education and she returns home very tired. He will be assisting with the day-to-day household duties. He said he would do everything for his mother including making meals so that she does not have to perform that role when she returns from work. His father has been helping with additional duties since his detainment and his mother’s ill health.
The Applicant said his brother, STT, is not in good health and that he will assist him as he has previously done by taking him to medical appointments and sitting with him and talking to him whilst he is having dialysis. He will also assist by babysitting his niece when required. He explained that his brother was able to do most things but only for a short period of time.
The Applicant said that if released into the community, he intends to seek out further counselling. He said the domestic violence prevention program was beneficial and he acknowledged he still needed to continue with that support. He will work with his brother, CA, but not formally enrol in an apprenticeship until the question of his Special Category (subclass 444) visa cancellation has been determined. He maintained an interest in studying maths and science at a later date but will need to complete year 12 in Australia to gain admission to university.
The Applicant was cross-examined about relatives in New Zealand. His biological mother still lives there but he has had no contact with her. His maternal grandmother and aunt live in New Zealand, but he only has contact with them through his father if he needs to. He has some cousins in New Zealand with whom he could communicate but he has not done so since in or about 2017.
Evidence of CT
Ms CT is the Principal of the Te Aratika Academy, New Zealand. She provided a statement dated 30 April 2020[8] and gave oral evidence by telephone. The Te Aratika Academy is a high school for young men aged between 15 and 19 years that provides educational pathways and qualifications. The Applicant attended from approximately 2017 to 2018 and graduated from the academy.
[8] Exhibit C, 18-19.
Ms CT explained that the academy was a small school of approximately 20 students and that she maintained a close relationship with each student and their family. Albeit, she did not meet the Applicant’s family, she maintained contact with them by email and telephone.
Ms CT said that the Applicant had attended another high school in New Zealand and achieved a certain qualification level but came to the academy to increase the pathway to university.
In her statement, Ms CT said that she was informed that the Applicant had been detained in immigration detention due to domestic violence charges. She said that this was a familiar story with which she had dealt with before, being young men in relationships that had turned toxic. She explained that the academy provided training to young men to become work ready and they had connections with civil construction, cadet programs and other avenues of skilling young men. She explained that the academy provides wraparound support to the students to help them to establish a positive routine and get into work. The academy often deals with students from troubled backgrounds who are known to the youth justice system or police. The students are also taught to deal with relationships to prepare them emotionally.
Ms CT said that the Applicant was a senior level student who succeeded at the academy. When he moved back to Australia, they kept in contact. He was a young man that they continue to support. When he shared with her his offending, she was saddened to hear of the situation he was in, but it was a pattern that she often sees and deals with. She described the Applicant as a young man with great hope and a strong family network. He was a student who was balanced, respectful, who worked well with peers and staff and who was allocated leadership roles. She understood his intended career path was in plumbing and industry.
In cross-examination, Ms CT said that she would see the Applicant every day. He was one of 20 students in a very small and intimate school. The school had four registered teachers and two coaches. It was a full-time academy with the school day starting at 7:30am and finishing at 4:30pm.
Ms CT summarised what the Applicant had told her about his offending, including that it had been a new relationship. Initially, it was a positive relationship, but there was a relationship breakdown soon after he moved out of home and that the Applicant was ashamed and remorseful for his actions. She also explained that the Applicant had hoped for the opportunity to engage in restorative justice to personally express his remorse and contrition. She explained that he was wanting to apologise, and the restorative justice process is a procedure the academy will approach with students who have offended by giving a safe place and a platform to enable a formal apology to be given to a victim.
Ms CT acknowledged that she was not informed in too much detail about the nature of the Applicant’s offending but said that the Applicant was very sorry for his actions. She explained that this was an all too common a story in her experience and involved the Applicant’s immaturity to deal with the relationship.
Ms CT was aware of the incident involving the Applicant putting a lit cigarette to the face of ex-partner but was unaware of the incidents involving the throwing of a piece of glass, the Applicant pushing his ex-partner against a bedframe and squeezing her jaw. She wrongly assumed that the Applicant voluntarily gave himself into police. Nonetheless, she regarded him as a young man who knew right from wrong and with the right support, he had a better chance in the future.
Evidence of Mrs JTT
Mrs JTT is the Applicant’s mother. She provided the Tribunal with an undated statement[9] and a joint statement with her husband, which was also undated.[10] She gave oral evidence via telephone.
[9] Ibid 24-26.
[10] Ibid 20-21.
Mrs JTT said that the Applicant came to Australia when aged approximately eight years old. He fitted in well at both primary and high school, albeit when he first arrived in Australia the school had trouble providing him with work because he was a more advanced student coming from New Zealand and initially schooling was not challenging for him.
Mrs JTT said that the Applicant’s relationships at school were good, although when younger he had difficulty with bullying until they changed his ADHD medication from the age of about nine years.
Mrs JTT summarised the Applicant schooling in similar terms as the Applicant. She said that he went to a New Zealand boarding school which was a very well-regarded school. They wanted him to learn his Maori background and his language. He was there for about two years, but they took him out of that school because of issues about over medicating him and not communicating with the family about those changes.
In her unsigned statement, Mrs JTT outlined the Applicant’s relationship with his former partner. The Applicant and his ex-partner would come to their home about once a week to spend time with his parents and family. On the second occasion she and the Applicant spoke privately. The Applicant explained his needed money to catch an Uber back home. He explained that his money was all going to his ex-partner’s father to help pay bills and there was not much food in the house. He said he loved his ex-partner and wanted her to have food in the house. She gave him $100. He was becoming frustrated because his ex-partner was often ill and he was only 18 years of age trying to balance a house, work, girlfriend and his future. She would counsel the Applicant on what to do for his ex-partner when she was feeling unwell. Mrs JTT had no idea that they were going through the struggles that later became apparent.
Mrs JTT corroborated the Applicant’s evidence with respect to the family make up. She confirmed that she gave her son, STT, a kidney which donation failed. She said that STT and the Applicant were very close, and the Applicant would go and sit with him when he had dialysis or cook for him and make him a cup of tea. If STT’s partner was at work, the Applicant would go and spend the day and sit with him. STT relies on the Applicant for support.
Mrs JTT relies a lot on the Applicant for support given the deterioration in her health. He helped her with housework and cooked meals. Her grandchild, RTT, lives in the family home with her husband and the Applicant. The Applicant would feed him, get him off to school and babysit him. He would take him out for the day. She said they were very close and RTT misses the Applicant. But for the current COVID-19 pandemic, they would take RTT to see the Applicant in detention. She said that RTT does not have a father and that he looks up to the Applicant as a father figure.
Mrs JTT said they have two other grandchildren both aged eight years. She said that the Applicant has close relationships with both of them.
Mrs JTT is aware of the Applicant’s offending and has been to every court hearing. She was hurt by his conduct. She supported him in his decision to leave home, but she did have doubts about the move. The Applicant was making good money, namely $800 per week, but was having to borrow money from her because his earnings were going into his ex-partner’s home and their debts. She knew how much he was earning because his salary was paid into her account.
In cross-examination, Mrs JTT was asked about her thrombocytosis. She said that she was under the care of a haematologist. The condition was a thickening of the blood and she is on medication with mild chemotherapy. As for her COPD, she is taking insulin. She said that she becomes very tired and has problems being able to clean and cook. She struggles with normal jobs. The Applicant cooked, cleaned and walked to the shops to get groceries. He mowed the lawns and ran around after her. After her operation he also helped her get in and out of bed.
Mrs JTT corroborated again the Applicant’s evidence in relation to the Applicant’s brother STT and his young son, LTT. STT has dialysis every second day and the Applicant on occasion, looks after STT.
Mrs JTT confirmed that the Applicant was employed working as a sprinkler fitter installing sprinkler systems with her son CA. He was given a trial and then made an application to become an apprentice plumber.
Mrs JTT was cross-examined about the Applicant’s salary being applied to the household expenses of his ex-partner and her father. She repeated that he was receiving about $800 per week. She knew this because his pay went into her bank account and she distributed the money to him. She said his ex-partner planned to go to the United States of America to do a casting audition to be an actress. His ex-partner told her that her father had mortgage the house so that she could have an acting portfolio prepared.
Mrs JTT said that if the Applicant was granted a Bridging visa, they will watch him closely, talk to him and that he has the whole of his family’s support. There will be rules laid down and he will comply with them. She said when he telephones her, she hears him crying. She has watched how he has changed in the detention centre and is positive he will not get into trouble should he be released from detention. She said his ‘brothers will watch him like a hawk’. She said the family was disappointed in his offending but continue to support him.
Evidence of Mr ETT
Mr ETT is the Applicant’s father. In addition to his joint statement provided with Mrs JTT, he provided the Tribunal with an undated signed statement.[11] He gave his oral evidence by telephone.
[11] Ibid 22-23
Mr ETT corroborated the evidence of the Applicant and of his wife with respect to the help and support the Applicant had given in and around their home including the heavy work, gardening, washing, collecting firewood; tasks which he performed daily. His detention was a shock and Mr ETT has had to pick up the additional responsibility left by his son’s detention.
He corroborated the evidence previously given about the Applicant’s schooling in New Zealand. He first returned to school in New Zealand to renew connections with his Maori culture. Mr ETT explained that he moved back to New Zealand in about 2016 when his mother passed away and the Applicant went with him and attended the Te Aratika Academy.
He confirmed in his undated statement that the Applicant would often contact him whilst living with his ex-partner and said that all his money was going towards her father to pay for bills, food and household needs. He said he was sad to hear that, at such a young age, the Applicant had to deal with such problems. He tried to assure him that everything would be ‘sorted’. He did not realise that he was so stressed and resorted to yelling, and being angry.

He confirmed that the Applicant and his grandson, RTT, have a very close relationship. If his Bridging visa is granted and he can return to the community, the Applicant will return to live in the family home. His brother, CA, will find him work subject to any COVID-19 restrictions and if he does not find work, the family will deal with the extra mouth to feed.
In respect of the criminal offences, Mr ETT said he had been to court on every occasion he could until COVID-19 restrictions were implemented. He said the offending was very much out of character and he was surprised when he was taken into custody.
Mr ETT said since being charged, the family have noticed a big change in the Applicant. He has had a hard look at himself. He said that he and his other family members will be there to help the Applicant. He said the Applicant felt he needed to move out of home because he had a job and a relationship, but that people their age did not know how to communicate. He has now changed a lot and realises what he did was out of line, and that he has a good future in Australia. Mr ETT said that the family will make sure the Applicant is given the appropriate support.
In cross-examination, Mr ETT said he is currently employed as a health and safety officer in the construction industry. His working hours are from 6.00am to 5.00pm. When he is at home, he assists with a heavy lifting, but he previously asked the children to do that work.
When asked about the chance of the Applicant committing further offences, he said that he will do everything to ensure that does not occur. He was confident this experience had turned him around and he would do the right thing. He believed that he has learned from the offending and he will support the Applicant. He said he cannot spoon feed him and he needs to take responsibility, but he has not gone near his ex-partner and complied with all conditions of bail.
Evidence of Mr CA
Mr CA is the Applicant’s brother and is aged 41 years. He provided a statement to the Tribunal dated 10 October 2019 under his company’s letterhead, of which he is the managing director.[12] He gave oral evidence by telephone.
[12] Ibid 1.
The Applicant worked for Mr CA and would do manual work such as cleaning tools, trucks, machines and the shed. The Applicant’s work was dependent upon how busy the business was, and it ranged from two, three or five days a week. He was paid around one hundred dollars a day.
The Applicant told him about troubles he was having with his ex-partner, namely arguments and disagreements, but he did not know about the assaults until he was charged. He understood he had restrained his ex-partner and pushed a lit cigarette into her face. He said this is not the sort of thing that happens in his family and he spoke to the Applicant to help get on the right track. He said he has taken him under his wing.
Prior to the offending, everything was in place for him to attend Malvern Trade School, commencing in February 2020, to undertake a Certificate III in Fire Protection and become a qualified plumber. It was three to four-year apprenticeship.
Mr CA said that if the Applicant is returned to the community, he will return to work for him in his fire protection business. They currently have a lot of contract work installing sprinklers in buildings and domestic premises.
Mr CA said that his daughter, LA, loves her uncle. He described him as a good uncle who goes out of his way to play with her. He has seen him playing dolls with her on the floor. The Applicant saw LA every week.
Mr CA has not spoken to his daughter about the Applicant’s offending and about the possibility of him being deported to New Zealand. She has asked about him regularly and he has told her that the Applicant is on holidays.
Mr CA said that if the Applicant returned to work and engaged in the apprenticeship, he will be earning approximately $800 per week.
In cross-examination, Mr CA was asked to explain how the letter of 10 October 2019 came into existence. It was compared to a different version which appeared in the G-documents.[13] Mr CA explained that the letter was a draft and he was assisted in its preparation by a friend. To prepare the letter he found a similar example of a reference on the internet. Nonetheless, he said that the letter was prepared by him and he agreed with the whole of its content.
[13] Exhibit A, G3/85.
Evidence of Mr STT
Mr STT is the Applicant’s older brother and is aged 31 years. He provided a signed but undated statement to the Tribunal.[14] He gave oral evidence via telephone.
[14] Exhibit C, 27.
He has two children from a prior relationships namely a daughter aged nine years who lives in New Zealand and a son aged seven years who lives in Australia with a former partner.
Mr STT suffers from renal failure and cannot work. He is not entitled to Centrelink payments because he is not an Australian citizen. He confirmed that he underwent an operation for a kidney transplant donated by his mother. That transplant was not successful, and he is now on the top of the waiting list for a new transplant. He could receive a call any day to attend at short notice for that operation.
The Applicant has helped Mr STT to pay his bills because Mr STT is unemployed. He is unable to enter the community at the moment because he has no immune system and if he caught COVID-19 it would be fatal. He is therefore housebound. Mr STT is on dialysis four days a week, which requires him to be on a machine for five to six hours at a time. The Applicant helps around the house. He helps his son with homework. The Applicant would come to his house three times a week, particularly to help with his son who he has four days a week.
The Applicant and his son are very close. They will play together, the Applicant takes him to the park to play T-ball and teaches him how to play soccer. Since the Applicant has been in detention, his son asks him every weekend where the Applicant is. If he knew he might not be coming back he said, ‘it will break him’.
Mr STT said that the Applicant has not seen his son since about October or November last year. He said he was unwell at that time and because of COVID-19 he did not want anyone coming to his house. Mr STT said that his doctor told him at that time about COVID-19 and not to have people coming to his house. He said this is when he had his kidney removed and the operation failed, and he could not see his family. He maintained he knew about COVID-19 in late 2019.
He now has no assistance around the home. He and his current partner are struggling. Her work has closed, and she is now working reduced hours from home and not earning much money.
In cross-examination, Mr STT maintained that his doctor told him about COVID-19 in late 2019 and he recommended that he isolate early.
Evidence of Ms DB
Ms DB is a youth case worker at Save the Children. She provided a signed statement to the Tribunal dated 28 April 2022.[15] She gave oral evidence by telephone. Her role at Save the Children involves working with children who have been in trouble with the law and assisting them in finding a direction in life.
[15] Ibid 5.
Ms DB met the Applicant in Queensland whilst running a youth development program in April 2018. She explained that the Applicant self-enrolled in that program having seen a Facebook advertisement. The program was called “Get Set for Work”. He wanted to better himself and voluntarily joined the program. He was not referred to the program due to any offending. Ms DB met his aunt. The focus was to get his feet on the ground and help him find employment.
The Applicant spent 12 weeks in the program. He completed a Certificate III in Skills for Work and vocational placement, which involved team building, confidence building, vocational skills, job interview skills and job searching. As a student he took a leadership role, was very mature and he brought the group of 17 young students together. He helped bond the group of students over a period of three months. She said he had a very gentle nature about him, and members of the group would turn to him for support. His personality was very gentle, understanding and confident.
After the course, Ms DB moved to Western Australia and has kept in contact with the Applicant. She said the Applicant made a Facebook group so that he could keep in contact with the students from the program.
Ms DB knew the Applicant had been charged with offences but did not know the details. She said that he was not proud about his offending. They spoke about making mistakes in life and learning from those mistakes.
The Tribunal outlined the Applicant offending to Ms DB. She was surprised about his conduct. Ms DB explained that she works with a lot of people who are disadvantaged and, when they deal with matters of the heart, it is hard to control one’s self. Knowing the Applicant and how gentle he is, she assumed that he was under considerable duress at the time. She found it hard to believe that he had hurt someone.
Ms DB agreed that the Applicant undertook the course about a year ago. She said he was living in Queensland with his aunt and looking for work. She was aware that he had returned to South Australia.
Evidence of Ms KG
Ms KG is the Applicant’s niece and is aged 21 years. She provided the Tribunal with a signed statement dated 15 May 2020.[16] She gave oral evidence by telephone.
[16] Ibid 8.
Ms KG and the Applicant lived together in New Zealand for approximately four years. She now lives in Brisbane, where the Applicant also lived with her and her mother for a total of about one to two years in 2014 and again in 2017 or 2018.
He came to Brisbane for his schooling. He has ADHD and they provided a stable environment. She said that he worked well with her family and that he was like a brother to her. He helped her a lot when her parents separated. She was 16 years old at the time and she described the Applicant as her ‘rock’.
Ms KG referred to the Applicant being bullied at school. She said in evidence that this occurred when the Applicant was in primary school in New Zealand. He was bullied because of his weight and his ADHD. He did not experience similar issues at school in Australia. In Queensland he went to an alternative school that helped students who had difficulties. She said he succeeded, was well liked and had a good work ethic.
Ms KG knew that the Applicant had been charged with domestic violence offences. She attended one of his court hearings. She did not know about all of the allegations but was aware of the offences involving the lit cigarette and pushing his ex-partner onto the bedframe. She said she had never seen him do anything like that but with his ADHD he does ‘lose it’ if he is pushed too far and that she knew ‘how to push his buttons’ when they lived together as children.
The Applicant had spoken to her about his offending generally and said he was sorry for what he did. Whilst in the relationship he telephoned her and was crying. He had lost his temper and she suggested he take some time out and go and live with his parents, but he did not take that advice.
In cross-examination, Ms KG confirmed that the Applicant lived with her for about a year in 2014 and 2017 and that they lived together for about four years in New Zealand. When they have not lived together, she has maintained contact with the Applicant. She also flew to Adelaide in 2018 and again four times in 2019. In 2020, they have maintained contact by telephone.
Other Evidence
The Tribunal attempted on several occasions to contact the Applicant’s sister, Ms MTT, who provided the Tribunal with a signed but undated statement.[17] She could not be contacted by telephone. After closing submissions, a further attempt was made to contact her. The Applicant agreed that the Tribunal should not make any further attempt to contact his sister but rely on her statement, which the Tribunal has done. In that statement, she like other members of the Applicant’s family, spoke of the Applicant’s good character. She expressed the view that he was far too young to have commenced a relationship.
[17] Ibid 28.
The Tribunal received a total 23 statements including from those witnesses who gave evidence by telephone.[18] A consistent theme to all of those statements is that the Applicant was a person of good character, a gentle, loving and decent man of good character. They all expressed their surprise and disappointment in the Applicant’s offending.
SUBMISSIONS
[18] Ibid.
The Respondent’s Closing Submissions
In closing submissions, Counsel for the Respondent provided very helpful summary of the law and the evidence. It was the Respondent’s submission that the Tribunal should consider that there remained a risk that the Applicant would re-offend.
Assessment of good character
Counsel submitted that there were four factors that weigh against the Applicant. They were that:
(a)The Applicant’s offending occurred in May and June 2019 and was an act of violence against a domestic partner and female victim. It was submitted that the Applicant was a sizeable male and the victim a much weaker and vulnerable person.
(b)The Applicant’s offending was a course of conduct over approximately two months. It was submitted that the Applicant apparently had a problem with violence. He did not cease that violence or seek support.
(c)The Applicant lacked insight into his offending. In particular, it was submitted that when the Tribunal asked the Applicant why the offending occurred, his answer, that he tried to be something he was not, was wholly unsatisfactory. Further, it was submitted that it was naïve of the Applicant to think that his problems were fixed by attending seven weeks of a domestic violence prevention program. It was also noteworthy that alcohol and drugs were, according to the Applicant, not a factor in his offending.
(d)The Applicant has not completed any substantial rehabilitation therefore his violence and anger issues remain unaddressed. Albeit he attended the domestic violence prevention program, there has been no evidence produced in relation to that program other than through the Applicant. Further, there was no evidence before the Tribunal of counselling he had received in detention. There was also no evidence of concrete plans for the future to return to the program or other programs in relation to violence and anger management.
Counsel then submitted there were nine factors that supported the Applicant that he would not be at risk of reoffending. They were that:
(a)The Applicant is under an IVO and bail agreement which he had not breached. He would be expected to continue under the terms of those orders upon his release into the community and until sentenced.
(b)The Applicant pleaded guilty to the domestic violence offences, thereby demonstrating his remorse and that he might therefore respond well if in the community.
(c)The Applicant had demonstrated a willingness to undertake a domestic violence prevention program.
(d)In terms of the Applicant’s employment, he has a bright future with an apprenticeship and positive plans to return to study at some time in the future.
(e)At the age of 19 years old, the Applicant is still young and there is still time for him to reform.
(f)Prior to the subject offending, the Applicant had no prior convictions.
(g)The Applicant has a good family network. His offending was not generational offending and his father and mother were impressive witnesses. It was submitted that the Applicant’s father was particularly compelling.
(h)The Applicant has support from his family with whom he can talk. He has said that they will set rules for him and he will comply with them. His brothers were particularly disappointed in his offending but will watch him like a hawk. His father is confident he will do the right thing.
(i)The evidence is that the Applicant is otherwise of good character. Counsel referred to the fact that two non-family members gave evidence and both attested to the good character of the Applicant. Ms DB referred to his leadership skills, that he was a brilliant student and brought his student group together. However, neither knew the detail of his criminal conduct and, hence, their evidence stands for their assessment at the time that they knew him rather than as a person as a whole.
When balancing all of these factors, the Respondent submitted that the Applicant was not a person of good character and then turned to the Primary and Other Considerations contained within the Direction.
Primary Consideration A
Counsel submitted that the protection of the Australian community weighed against the Applicant. The offending was serious, violent and committed against a vulnerable person. It was serious offending against a woman, which offending was in the nature of a course of conduct. There was an unacceptable risk of reoffending.
Primary Consideration B
In respect of minor children, it was submitted that there was extensive evidence about the relationship between the Applicant and two nephews and niece, each of which the Tribunal must consider individually. There was also evidence in one of the character statements that he babysat another child but other than that there was no further evidence before the Tribunal in relation to that child.
Counsel outlined the evidence as it related to the each of those three children in respect of whom the Applicant had a close relationship. It was considered, quite rightly, that this primary consideration weighed in favour of the Applicant.
Primary Consideration C
Having regard to the expectations of the Australian community, Counsel referred the Tribunal to the case of FYBR v Minister for Home Affairs,[19] it was submitted that expectation of the Australian community is that the Applicant would not be granted a Bridging visa. Violence against women is unacceptable and this Primary Consideration weighs against the Applicant.
[19] [2019] FCAFC 185.
Other Considerations
In relation to the Other Considerations, only the impact upon the Applicant’s family and the impact on Australian business interests had any relevance to this matter.
Counsel outlined the evidence in detail as it related to the relationship between the Applicant and each member of the family and the support and help he gave, in particular to his mother and his brother, who is currently receiving dialysis treatment.
To the extent that there is an impact on Australian business, it was submitted that the Applicant hoped to become an apprentice in his brother’s business, therefore the building industry would be deprived of an apprentice. Given that limited impact no substantial weight should be attributed to this Other Consideration.
When viewed as a whole, Counsel submitted that the Primary and Other Considerations weigh against the Applicant.
The Applicant’s Closing Submissions
The Applicant’s submitted that he was truly remorseful. He believed that his attendance at the domestic violence prevention program was a help to him. He did not suggest that it was a cure for what he had done, but 11 months had passed since his offending and he kept his promise that he would stay away from his ex-partner which was indicative that he will not reoffend.
The Applicant said that he had worked hard and was ready to study his apprenticeship. He agreed that there was no evidence that he had been to counselling and seen a psychiatrist whilst in detention, but maintained he had done so. He understood the Primary Considerations and the need to ensure the safety of the Australian community, but he said he had changed, and he had bettered himself. He apologised to the Tribunal, referred to strong family support and assured the Tribunal he will not reoffend.
CONSIDERATION
Does the Applicant pass the character test?
The first question for the Tribunal to address is whether the Applicant passes the character test under s 501(6) of the Act.
As noted above, the Respondent relied solely on s 501(6)(d)(i) of the Act in finding that the Applicant did not pass the pass the character test. Therefore, the Tribunal must determine whether, based on the Applicant’s prior conduct, ‘there is a risk that the person would … engage in criminal conduct’.[20]
[20] Migration Act 1958 s 501(6)(d)(i).

Paragraph 6(2) of Annex A to the Direction provides that s 501(6)(d) of the Act is enlivened if there is evidence suggesting there is ‘more than a minimal or remote change that the person … would engage in [the specified] conduct’.
Section 501(6)(d)(i) will not be satisfied unless the Tribunal can be content that were the Applicant allowed to remain in Australia, there is a risk that he would engage in criminal conduct.
In considering whether the Applicant fails the character test, it is necessary for the Tribunal to consider the term “risk” for the purpose of s 501(6)(d) of the Act.
Relevantly, DP Forgie considered this issued in QKVH v Minister for Home Affairs[21] and determined that when considering the word “risk” under s 501(6)(d)(i), and at [13], said:
The word “risk” must, however, be interpreted in its context and that is the context of the Migration Act and so in the context of who may, and may not, come to and/or remain in Australia. In that context, the word “risk” cannot be seen to mean simply a “chance or possibility” of a person’s engaging in criminal conduct in Australia for to do so would not take account of the realities of everyday life. Take, for example, members of the Australian community who drive a motor vehicle. Even if they have never done so before, there is a chance or possibility that any one of them may have a lapse in concentration or judgment and commit an offence against the road laws of a type for which a conviction may be imposed. That chance or possibility will, of course, be greater if the person has a history of traffic offences so that the risk of his or her doing so increases. Section 501(6)(d)(i) is not directed to the risk that a person will engage in criminal conduct if allowed to remain in Australia at what might be thought to be a theoretical level. It is directed to an assessment of risk at a level which is, as Direction No. 65 says, “... is more than a minimal or remote chance ...” of engaging in conduct which is, in this instance, criminal conduct. It cannot be set at a greater level than that for the word “risk” is not qualified by any adjective such as “significant”, “substantial”, “real”, any of which might have done so.
[21] [2018] AATA 1855.
The Tribunal must ask itself whether there is a risk, other than that of a minimal or remote risk, that the Applicant would engage in criminal conduct. In considering that question, it is necessary to have regard to the Applicant’s offending together with such other factors which are relevant to assessing whether the Applicant would engage in criminal conduct in the future.
Insofar as the Applicant has an outstanding alleged offence of disorderly behaviour still before the Magistrates Court, it is relevant that the Applicant is defending that allegation and the matter is soon listed for trial in June 2020. He is entitled to the benefit of the principle that underpins our criminal justice system, that an accused is innocent unless and until he or she is proven guilty of the offence. Accordingly, I do not take into account the charge of disorderly behaviour in assessing the Applicant’s character. The Applicant is entitled to the presumption of innocence.
The Tribunal notes that the Applicant committed the offences when aged 18 years. Prior to that, the Applicant did not have any criminal convictions, nor are there any convictions for subsequent offending.
The circumstances that gave rise to the offending are also here relevant. He was a very young man aged 18 years who left home and entered into a relationship with a girl he met from school. His mother supported him but was concerned about him beginning such a relationship at his young age. His sister, MTT, expressed similar concern in her statement.
The evidence of the Applicant’s mother was of particular importance and gave some insight into the circumstances in which the Applicant found himself once he was living with his ex-partner at her father’s home. Mrs JTT was a credible and reliable witness and I accept her evidence. She said the Applicant was then working with an income of about $800 per week, which money was deposited into her account and she would then give to the Applicant. However, the Applicant was having to ask his mother for money because the whole of his income was being paid to contribute to the household and living expenses at his new home. I accept the evidence that he was stressed and distressed by the situation in which he found himself soon after entering into this new relationship with his ex-partner. That does not excuse this criminal behaviour but does give context to it.
It is also noteworthy that Ms KG, whose evidence I also accept, spoke with the Applicant when he was living with his ex-partner and that he was distressed and crying. It is unfortunate he did not take her advice and return, even for a brief period, to reside with his parents and take stock on his future.
It is important to note that the subject offending occurred nearly 12 months ago, and I accept that the Applicant has not contacted, directly or indirectly, his former partner or her father since then. He has not returned to the premises since the day he separated from his ex-partner which was also the day of his last offence. Further, as Counsel for the Respondent pointed out, the Applicant pleaded guilty to his criminal offending which was demonstrative of his contrition and remorse which he has consistently expressed, including the to the Tribunal.
I note that the Magistrates Court deferred sentencing the Applicant to give him the opportunity to engage in a domestic violence prevention program. He was successfully engaging in that program until he was taken into detention. It is unfortunate that he has not had the opportunity to complete that program, but I accept that he would have done so had he remained in the community. I also accept his evidence that he has spoken to both a nurse and psychiatrist whilst in detention.
The Respondent submits that the Applicant demonstrated little insight into his offending. However, the Applicant acknowledged that he still needed to engage in support services and would look to pursue that opportunity should he be released back into the community. The Applicant, when addressing potential risk of offending, did not seek to minimise his culpability but did point to the fact that he has complied with his IVO and bail agreement and that there has been a considerable passage of time since the date of his offending, during which he has had time to reflect on his behaviour. The enormity of his conduct is also abundantly clear to him having now been removed from the community and his family and placed in immigration detention since December 2019. Indeed, I understood him to be referring to, in particular, the fact that he will not engage with his former partner, her father or attend her residence when answering the question directed to his risk of criminal offending.
The Applicant was an impressive witness whose evidence I accept. He is still a very young man, but I find that he did have an appropriate level of insight into his offending and a realisation that he must not commit a criminal offence should be released into the community.
The Applicant has an impressive family. I found each member of his family to be motivated to support the Applicant. He will return to live with his parents and 14-year-old nephew and be in the same environment he was living in prior to his criminal offending. He has immediate employment through his brother and, subject to the outcome of his Special Category (subclass 444) visa cancellation proceedings, a three-year apprenticeship will be arranged.
It is also relevant to consider the time the Applicant will be permitted to remain in the community should he succeed in his visa application. That time will be relatively short. He will appear for sentencing and the hearing of his outstanding matter in mid-June. Even allowing for some time for the hearing to conclude to judgement, it is likely that his Special Category (subclass 444) visa cancellation will be decided in coming weeks.
Having regard to the whole of the evidence, and taking into account the Applicant’s unequivocal expression of contrition and remorse; that the relevant offending was nearly 12 months ago and all communication with his ex-partner has ceased, and that the continuation of the IVO and bail agreement will continue to be in force should the Applicant be granted a visa; further having regard to the strong support he has from members of his family, including ongoing residence and employment, and having regard to the provisions of the Act and the Direction, I find that the Applicant poses a very minimal risk to the Australian community.
CONCLUSION
For the reasons set out above, I am satisfied that the risk of the Applicant reoffending or otherwise engaging in criminal conduct in the future is not more than a minimal or remote risk. Accordingly, the Applicant does not fail the character test on the basis of s 501(6)(d)(i) of the Act.
Given the above conclusion, it is not necessary for the Tribunal to consider the question regarding the residual discretion under s 501(1) of the Act.
DECISION
The Tribunal sets aside the decision made by the delegate of the Respondent dated 23 March 2020 and in substitution decides not to refuse to grant the Applicant a Bridging E (Class WE) visa under s 501(1) of the Migration Act 1958.

I certify that the preceding one hundred and seventy six (176) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

.........................[Sgnd].............................
Associate
Dated: 12 June 2016

Date of hearing:

1 and 2 June 2020

Applicant:

Self-represented

Advocate for the Respondent:

Tom Ellison, Australian Government Solicitor

[2020] AATA 1770

12 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Date of hearing:	1 and 2 June 2020
Applicant:	Self-represented
Advocate for the Respondent:	Tom Ellison, Australian Government Solicitor