Hofman and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)

[2022] AATA 3740

Hofman and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 3740 (31 August 2022)

Division:GENERAL DIVISION

File Number(s):      2022/4781

Re:Nanko Daniel Hofman

APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Member Lee Benjamin

Date:31 August 2022

Date of written reasons:        7 November 2022

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 8 June 2022 to not revoke the cancellation of the Applicant's visa.

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

Member Lee Benjamin

Catchwords

MIGRATION – Non-revocation of a mandatory cancellation of a Class BB Subclass 155 Five Year Resident Return visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

Cases

Ali and Minister for Home Affairs (Migration) [2018] AATA 2512

Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 at [26].

Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115.

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337.

Harrison and Minister for Immigration and Citizenship [2009] AATA 47 at [63].

HMFZ and Minister for Home Affairs (Migration) [2018] AATA 3861

HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 [para 68].

Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548,

Minister for Home Affairs v Buadromo [2018] FCAFC 151.

PGDX and Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235

Peterson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1256

PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162

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 Lee Benjamin

7 November 2022

introduction and background

1. Nanko Daniel Hofman (the Applicant) is a 36 year old citizen of the Netherlands. The Applicant first arrived in Australia on 18 April 1988,[1] and lived in Australia before returning to the Netherlands in 1993. He returned to Australia in 1999 and was last granted a Class BB Subclass 155 Five Year Resident Return visa on 8 March 1999 (the visa).[2]

   [1] R1, G30, p 273.

   [2] R2, p 2, para [3]; R1, G31 p 274.

2. On 27 August 2020, the Applicant was convicted in the District Court of Queensland of eight  offences, comprising:

   ·Rape – domestic violence offence;

   ·Unlawful stalking uses/threatens violence contravenes/threatens to contravene an order/injunction – domestic violence offence;

   ·Contravention of domestic violence order (aggravated offence) (4 counts);

   ·Stealing – domestic violence offence, and

   ·Wilful damage – domestic violence offence. 

3. The Applicant was sentenced to a term of imprisonment of eight years for the rape offence and other concurrent terms of imprisonment in relation to the remaining offences, with 849 days of presentence custody being deemed as time served.[3]  I note that the Applicant pleaded not guilty to the Rape – domestic violence offence and Wilful damage – domestic violence offence.[4]  He maintains his innocence to this day.[5]

   [3] R1, G4, p 31-33.

   [4] R1, G5, p 37, line 11-13.

   [5] R3, p 4.

4. Aside from the 27 August 2022 convictions, the Applicant has other convictions for other domestic violence and drug offences.[6] Some of the Applicant’s offences are helpfully set out in the below table titled “Previous Offences of Violence Table” which was put before the District Court of Queensland.

   [6] R1, G4, p 31-33.

Court and Date	Offence	Facts	Sentence
Cairns Magistrates Court 27 February 2009	Breach of Domestic Violence Order 7 February 2009	Complainant: [Victim 1][7] (DOB: [Redacted]) The complainant was the defendant's current partner and mother of his child. The defendant had made threats to kill the complainant. He punched the complainant once to the right side of her head during an argument. In an interview with police, the defendant denied punching the complainant, but said that he pushed her once to the side of her head. He told police that he thought that would not contravene the order because it was a normal thing to do to stop your partner from constantly annoying you.	Fined $300, refer to SPER No conviction recorded
Cairns Magistrates Court 20 October 2009	Breach of Domestic Violence Order 26 January 2009	Complainant: [Victim 1] (DOB: [Redacted]) The complainant was the defendant's de facto partner. The complainant asked the defendant to leave because she suspected he had taken money from her wallet without her knowledge or permission. The complainant asked the defendant to go to the shop and locked him outside as he left. He pleaded with her to let him stay. After her continued refusal, the defendant picked up a glass ashtray from the front patio and threatened to throw it at the kitchen window. The defendant threw the ashtray at the window, causing the window to smash. Upon police arrival, the defendant fled before returning and surrendering himself later. He participated in an interview and admitted to throwing the ashtray at the window.	Fined $200 with 28 days to pay No conviction recorded
Cairns Magistrates Court 11 October 2010	Breach of Domestic Violence Order 19 May 2010	Complainant: [Victim 1] (DOB: [Redacted]) At this stage, the complainant was the defendant's former partner. During an argument, the defendant threw one of the complainant's shoes at her which missed. He then punched her once to her right cheek. He declined the opportunity to interview.	6 months probation No conviction recorded
Cairns Magistrates Court 20 August 2012	Breach of Domestic Violence Order 28 February 2012	Complainant: [Victim 1] (DOB: [Redacted]) The complainant and defendant were separated. The protection order included a "no contact'' condition and prohibited the defendant from attending the complainant's address. The defendant came over to the complainant's house with a friend. He entered the house while the complainant was asleep. He came into the complainant's bedroom and asked for his car, but the complainant told him she had it towed away. The defendant asked the complainant to get back together with him. She refused. The defendant retrieved some property and left.	Fined $1,000 with 28 days to pay In default 20 days imprisonment Conviction recorded
Cairns Magistrates Court 21 July 2014	Contravention of Domestic Violence Order 30 September 2013	Complainant: [Victim 1] (DOB: [Redacted]) The complainant and defendant were separated. The protection order included a "no contact'' condition and prohibited the defendant from attending the complainant's address. The complainant received a call from a blocked number that she knew only occurred when the defendant called. Shortly after she received a text telling her to answer the phone. The defendant came over to the complainant's house shortly after the call and text. The complainant saw the defendant outside and screamed at him, asking what he was doing at her place. The defendant said he wanted to take their kids for a ride in his new car. The complainant told him no. The defendant started loudly banging on all doors and windows. In a loud voice, he stated "open the fucking door so that we can talk" and repeating that he wanted to take the kids for a ride. The defendant took out a pocketknife and stabbed holes in a mesh screen. He said to the complainant "next time this will be in your chest''. The defendant continued banging on 'the house before he left. Police attended but the defendant could not be located.	On all charges 12 months probation Conviction recorded
	Contravention of Domestic Violence_ Order 27 December 2013	Complainant: [Victim 1] (DOB: [Redacted]) The complainant and defendant were separated. The protection order included a "no contact'' condition and prohibited the defendant from attending the complainant’s address. The complainant heard a scooter arrive and her children talking to their father, the defendant. The complainant heard the scooter leave again. Her children said the defendant had gone down to the shops. the defendant returned shortly after. The complainant told the defendant he wasn't supposed to be at her house without permission. The defendant said he wanted to see his kids. An argument ensued. The defendant said to the complainant "do you want me to rip this screen door off again". The complainant tried to close the window where the defendant was standing but the defendant prevented it from closing. He walked to a door and said "you think you're good because you have had a cock in you". The complainant closed the door. The defendant ripped the screen door off. The complainant went through the house and locked all external doors. The defendant left. He attempted to call her numerous times. Police attended but the defendant could not be located.
	Contravention of Domestic Violence Order 31 December 2013	Complainant: [Victim 1] (DOB: [Redacted]) The complainant and defendant were separated. The protection order included a "no contact'' condition and prohibited the defendant from attending the complainant's address. The defendant attended the complainant's address. He knocked on the front window and asked to see the children. The complainant told him to leave. He remained at the property. Police attended. The defendant initially refused to provide his name to police but eventually complied. He explained that he was just trying to see his children. The complainant informed police there was no written agreement or order about the defendant seeing the children. The defendant threatened to ride off on his scooter. He was restrained and placed in the police car. He was transported to the police station. He was issued with a notice to appear and released. Later that night, the defendant returned to the complainant's house and knocked on the door. The complainant opened the door. The defendant said "I am going to go to jail tonight, you better not go anywhere because you're dead, you're dead". The complainant went to the police station.
Cairns Magistrates Court 2 November 2015	Contravention of Domestic Violence Order 30 September 2015	Complainant: [Victim 2][8] (DOB: [Redacted]) The defendant asked the complainant if he could stay the night. The complainant refused numerous times but eventually gave in. The next day, the complainant asked the defendant to leave but he refused. The defendant hid the complainant's phone and taunted her to call police. A heated argument ensued. The defendant put his hands over the complainant's mouth to prevent her from screaming and pulled her on to the bed to hold her down. Police attended and spoke to the complainant. Police attended the complainant's house again on 11 October 2015 looking for the defendant. The complainant denied that the defendant was at her house but one of her children told police he was inside. The complainant continued to deny the defendant was present. Police found the defendant hiding under one of the children's bed. He was arrested and questioned. He said the argument took place because the complainant is pregnant and hormonal. He admitted that he refused to leave.	6 months imprisonment, To be suspended for 18 months after serving 22 days. 22 days presentence declared Conviction recorded
Cairns Magistrates Court 13 December 2016	Contravention of Domestic Violence Order 19 October 2016	Complainant: [Victim 2] (DOB: [Redacted]) The protection order contained a condition that the defendant was not to approach the complainant. The defendant and the complainant argued about the children leaving items lying around the house. Police attended and found the complainant and her children underneath the house. The defendant was upstairs inside. The complainant said the defendant had been at her house for 2 days. The defendant told police that he knew he was breaching the protection order but thought it only had the mandatory condition. He participated in an interview. The defendant told police that a piece of paper was not going to stop him from seeing his child and when he gets out of the watch house he will go back to the complainant's place again.	4 months imprisonment, concurrent with the sentence imposed on 2 November 2015 To be served by way of intensive correction order Operational period of suspended sentence imposed on 2 November 2015 extended by 12 months

[7] Victim 1 is the Applicant’s former de facto partner and mother of (i) C1 aged 16 years (year of birth 2005) (C1); and (ii) C2 aged 15 years (year of birth 2007) (C2).

[8] Victim 2 is the Applicant’s former de facto partner and mother of (i) C3 aged 6 years (year of birth 2016) (C3); (ii) C4 aged 5 years (year of birth 2016) (C4); and (iii) C5 aged 5 years (year of birth 2016) (C5).

1. The Applicant was given notice on 22 October 2020 that his visa had been cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act).[9]  The visa was cancelled on the basis that the Applicant had a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory (ss 501(6)(a) and 501(7)(c)).[10]

   [9] R1, G31, p 274-281.

   [10] R2, p 2, para [5].

2. On 29 October 2020, the Applicant sought revocation and provided submissions and further evidence in support.[11] On 8 June 2022, a delegate of the Minister decided, under s 501CA(4) of the Act, not to revoke the visa cancellation decision.[12]

   [11] R2, p 2, para [6].

   [12] R1, G3, p 9-30.

3. On 9 June 2022, the Applicant applied to this Tribunal for review of the abovementioned decision by the delegate refusing to revoke the mandatory cancellation of his visa.[13] The hearing proceeded before me on 16 and 17 August 2022. The hearing received evidence from (1) the Applicant; (2) the Applicant’s former de facto partner and mother of the Applicant’s children C3, C4 and C5 , (Victim 2); (3) Joshua Hofman; (4) Leon Baggow; (5) Nadia Rengifo; (6) Yvonne Druppers; (7) Nico Wourterse; and (8) Ivy Querubin. The Tribunal also received evidence by way of written material which was reduced to an agreed Exhibit List, a true and correct copy of which is attached to these Reasons and marked “Annexure A”.

   [13] R1, G2, p 3-9.

4. On 31 August 2022, the Tribunal set aside the decision under review and now provides its written reasons.

   legislative framework

5. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:

   4 The Minister may revoke the original decision if:

   (a)the person makes representations in accordance with the invitation; and

   (b)the Minister is satisfied:

   (i)     that the person passes the character test (as defined by section 501); or

   (ii)    that there is another reason why the original decision should be revoked.

6. I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[14]

   “…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[15]

   [14] [2018] FCAFC 151.

   [15] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).

7. There are therefore two issues presently before the Tribunal:

   ·whether the Applicant passes the character test; and

   ·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.

   Does the Applicant pass the Character Test?

8. The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have a, “substantial criminal record”.  This phrase, in turn, is defined in s 501(7), which relevantly provides that a person will have a substantial criminal record if:

   “…

   (c) the person has been sentenced to a term of imprisonment of 12 months or more;

   (d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;

   …”

9. Failure of the character test arises as a matter of law.[16] The Applicant does not pass the character test because he was sentenced to imprisonment for a period of 12 months or more (s 501(6)(a) and s 501(7)(c) of the Act). As noted above, he was convicted on 27 August 2020 of rape – domestic violence offence and sentenced to eight years imprisonment.[17]  The Applicant acknowledges that he falls “into this category and… can not undo this.”[18] I am therefore satisfied (and I find) that the Applicant has a “substantial criminal record” and, accordingly, he does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.

   [16] Harrison and Minister for Immigration and Citizenship [2009] AATA 47 at [63].

   [17] R2, p 5, para [19].

   [18] A3, p 6.

   Is there another reason for the revocation of the cancellation of the Applicant’s visa?

10. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 90) has application.[19]  The Direction provides guidance for decision-makers on how to exercise the discretion.  Relevantly, it states that:

    “Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”[20]

    [19] Direction 90 commenced on 15 April 2021. It replaces Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.

    [20] Direction, paragraph 6. See also Direction, paragraph 4(1) which provides that “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.

    The principles in paragraph 5.2

11. Paragraph 5.2 of the Direction is designed to, “provide a framework within which decision-makers should approach their task” under s 501 or s 501CA (as the case may be). Summarised where appropriate, the principles are:

    (a)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.

    (b)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.

    (c)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).

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

    (e)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

    The Primary and Other Considerations

1. Paragraphs 8 and 9 of the Direction respectively stipulate four “Primary Considerations”, and four “Other Considerations” by which I must be guided in making my decision.

2. The Primary Considerations I must take into account are:

   “(1) protection of the Australian community from criminal or other serious conduct;

   (2) whether the conduct engaged in constituted family violence;

   (3) the best interests of minor children in Australia;

   (4) expectations of the Australian community.”[21]

   [21] Direction, paragraph 8.

3. The Other Considerations which, where relevant, I must take into account, “include but are not limited to”:

   “a) international non-refoulement obligations;

   b) extent of impediments if removed;

   c) impact on victims;

   d) links to the Australian community, including:

   i) strength, nature and duration of ties to Australia;

   ii) impact on Australian business interests”[22]

   [22] Direction, paragraph 9(1).

4. Paragraph 7 of the Direction also provides guidance as to how to take into account each Primary and Other Consideration. Briefly summarised, the Direction instructs decision-makers that:[23]

   (1)Information from independent and authoritative sources should be given appropriate weight;

   (2)Primary Considerations should “generally” be given greater weight than Other Considerations; and

   (3)One or more Primary Considerations may outweigh other Primary Considerations.

   [23] Direction, paragraph 7.

5. I will now turn to addressing the abovementioned Primary and Other Considerations.

   primary consideration 1 – protection of the australian community

6. In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non- citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

7. In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:

   (a)The nature and seriousness of the non-citizen’s conduct to date; and

   (b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

8. I will consider each in turn.

   The nature and seriousness of the non-citizen’s conduct to date

9. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the factors set out in paragraph 8.1.1(1) of the Direction. As referred to earlier, the Applicant has an extensive criminal history in Australia. The Applicant’s serial, decade-long, offending has no doubt consumed more than its fair share of Australia’s law enforcement and court resources.

10. I will now apply the relevant sub-paragraphs appearing in Paragraph 8.1.1(1) of the Direction to ascertain the nature and seriousness of the Applicant’s unlawful conduct in this country.

    Paragraph 8.1.1(1)(a)

11. Violent and/or sexual crimes, crimes of a violent nature against women or children, and acts of family violence, are viewed very seriously by the Australian Government and the Australian community. Accordingly, paragraph 8.1.1(a) deems the commission of such crimes as “very serious” for the purposes of considering the Applicant’s conduct. In particular, I am required to consider:

    ·     Subparagraph 8.1.1(1)(a)(i), which looks to violent and/or sexual crimes;

    ·     Subparagraph 8.1.1(1)(a)(ii), which looks to crimes of a violent nature against women or children, regardless of whether there is a sentence imposed; and

    ·     Subparagraph 8.1.1(1)(a)(iii), which covers acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed.   

12. As referred above, the Applicant was convicted in the District Court of Queensland on 27 August 2020 for rape – domestic violence offence, unlawful stalking uses/threatens violence contravenes/threatens to contravene an order/injunction – domestic violence offence, contravention of domestic violence order (aggravated offence) (x4), stealing – domestic violence offence, and wilful damage – domestic violence offence.       

13. With respect to the rape – domestic violence offence, wilful damage – domestic violence offence and contravention of domestic violence order (aggravated offence) the Applicant denied the offending and the matter proceeded to trial.[24] The Applicant was convicted by a jury of all charges after a five day jury trial.[25] According to the learned District Court Judge, the Applicant committed his offending against his former partner (Victim 2),[26] and the mother of his three youngest children.[27] In sentencing the Applicant, her Honour put the Applicant’s actions in the following terms:

    [24] R1, G5, p 37, line 11-14.

    [25] R1, G5, p 35, lines 1-5.

    [26] R1, G5, p 35, lines 28-29.

    [27] R1, G5, line 30.

    “Count 1 on the ex officio indictment occurred on the 19th of April 2018, that is, the first contravention of that domestic violence order. You sent the complainant a series of text messages threatening violence against her, threatening to come to her house. In further messages you threatened suicide. That forms count 1 on the ex officio indictment. The complainant reported those messages to police.

    Each of the stalking, wilful damage and rape offences occurred on the same day, 22 April 2018. In the days before this, the victim sent messages to you telling you that the relationship was over, to leave her alone, to stay away from her and her house, to stop calling her and not to come here or she would call the police. You sent her a series of messages in which you threatened her with violence. You also called her abusive and denigrating names. You had the only set of keys to her home but when she asked you if you had them, you denied it. You could access her home at any time.

    The stalking on 22 April 2018 included you calling her on her mobile phone, going to her home uninvited three times, entering her home uninvited three times, stealing her mobile phone and searching her mobile phone. After the theft of the mobile phone, the victim went to the police station with her six young children, spoke to someone at the desk but left after about 10 minutes without speaking to police because she became frustrated and it was too much for the young children to have to wait. When she got home you returned to her home uninvited and continued to accuse her. You cut your arms in her presence with the three youngest children in the general vicinity.

    When she left the home with the children and went to a park, you approached her at the park. There you used a pocket knife to slash her car tyre. The tyre later went flat while she was driving it. Left with no phone and no functioning car she walked many 20 kilometres with six young children to get home. While walking she saw your car pass twice. When she eventually got home you were already there. You went inside uninvited and you raped her later that evening. All of those acts contravene the protection order. While you were at the house you continued to accuse her of sleeping with someone else and you threatened to punch her in the face and not stop. You said you should have sex, she told you no, that she did not want to have sex with you, you told her you were going to have sex, she said:

    Would you rape me? Are you going to rape me?

    You said:

    Yes. One way or another we are going to have sex.

    You then raped her by having sex with her without her consent. You ejaculated inside her. You did not use a condom. The complainant victim acquiesced out of fear and because she was worried the children would witness it. During the act she asked you why you wanted to have sex with her and you replied:

    Because this is my pussy.

    Afterwards you verbally abused her and called her derogatory names before leaving the house. She contacted the police the same night.”[28]

    [Emphasis added]

    [28] R1, G5, p 35, lines 40-49, p 36, lines 1-39.

14. The learned District Court Judge characterised the Applicant’s offending as “objectively extremely serious”[29] and that it was “physically abusive and violent but also emotionally and psychologically abusive… persistent, controlling and coercive.”[30] Her Honour also identified a number of aggravating features of the rape stating:

    “It involved a significant breach of trust because of your past relationship. It involved intrusion into the victim’s premises. The rape occurred in her own home at night when her children were asleep. It occurred after a threat of psychical [sic] violence. In the act of rape you did things deliberately calculated to humiliate, degrade and dominate the victim.

    The rape occurred in the context of fear and intimidation and stalking. The victim was in fear of you. She was overborne by you. You had previously inflicted violence on her. Her lack of consent was manifest.”[31]

    [29] R1, G5, p 37, line 30. 

    [30] R1, G5, p 37, line 30-32. 

    [31] R1, G5, p 37, line 34-44. 

15. The Applicant lodged an appeal against his convictions and sentences on 8 September 2020,[32] although he later discontinued the appeal on 10 May 2021.[33]

    [32] R1, G9, p 51-52. 

    [33] R1, G13, p 109, R2, p 8, para [25].

16. The Respondent contends that the Applicant’s crimes fall within each of paragraphs 8.1.1(1)(a)(i), (ii) and (iii).[34] I accept (and find) that the Applicant’s crimes are sexual crimes, crimes of a violent nature against women, and acts of family violence, and therefore attract the compulsory application of each of paragraph 8.1.1(1)(a)(i), (ii) and (iii). Accordingly, I find that the Applicant’s conduct under these auspices is very serious in nature. 

    [34] R2, p 6, para [22].

    Paragraph 8.1.1(1)(b)

17. Paragraph 8.1.1(1)(b) deems the commission of certain crimes as “serious” for the purposes of considering the Applicant’s conduct. In particular, I am required to consider:

    ·     Subparagraph 8.1.1(1)(b)(i), which covers causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

    ·     Subparagraph 8.1.1(1)(b)(ii), which looks to crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

    ·     Subparagraph 8.1.1(1)(b)(iii), which addresses any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c)); and

    · Subparagraph 8.1.1(1)(b)(iv), which applies, where a non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.

18. The Respondent has not propounded the foregoing components of the paragraph 8.1.1(1)(b) in either its written or oral submission. The transcript demonstrates that neither party made any submissions regarding this particular paragraph. I therefore find that this sub-paragraph 8.1.1(b) is not relevant to the assessment of the nature and seriousness of the Applicant’s conduct.

    Paragraph 8.1.1(1)(c)

19. In applying this particular sub-paragraph, I am precluded from taking into account sentences imposed on this Applicant for: (1) any violent offending he may have committed against women;[35] (2) acts of family violence;[36] and (3) any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[37]

    [35] Paragraph 8.1.1(1)(a)(ii).

    [36] Paragraph 8.1.1(1)(a)(iii).

    [37] Paragraph 8.1.1(1)(b)(i).

20. The Applicant’s criminal history contains convictions including contravention of a domestic violence order (eight counts), [38] and possess utensils or pipes etc that had been used.[39] I find that the Applicant’s non-precluded criminal convictions attract the operative effect of sub-paragraph 8.1.1(1)(c). 

    [38] R1, G4, p 31-33. 

    [39] R2, p 8, para [26].

21. The Applicant has received a multiplicity of sentences ranging from imprisonment (with an intensive correction order), a suspended sentence, fines and restitution.[40] I will cite some examples:

    ·On 13 December 2016 he received a four month term of imprisonment (concurrent) to be served by way of an intensive correction order for contravention of a domestic violence order;

    ·On 13 December 2016 he received an extended 12 month suspended sentence for breaching a domestic violence order;

    ·On 2 November 2015 he received a six month suspended sentence for contravention of a domestic violence;

    ·On 7 October 2015 he received a fine and restitution for possession of utensils or pipes etc that had been used; and

    ·On 24 July 2014: he received 12 months’ probation for a contravention of a domestic violence order.    

    [40] R1, G4, p 31-33.

22. The Respondent contends that regard must also be had to the fact that the Applicant has been sentenced to terms of imprisonment for his offending. [41] Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy.[42] Where a Court has sentenced an offender to a term of custodial imprisonment, this should be viewed as a reflection of the objective seriousness of the offences involved.[43]

    [41] R2, p 8-9, para [27].

    [42] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].

    [43] R2, p 8-9, para [27].

23. It is safe to assume (and I find) that the sentences imposed by the courts for the crimes of this Applicant across his offending history are militative of a finding that his unlawful conduct in Australia has been of a “serious” nature.

    Paragraph 8.1.1(1)(d)

24. This sub-paragraph addresses two specific aspects of a person’s offending: its frequency and/or whether there is any trend of increasing seriousness. The Applicant has committed 19 offences over a 11 year period.  The Respondent contends that the Applicant’s offending has been frequent.[44]

    [44] R2, p 9, para [28].

25. I have no trouble in finding that the Applicant’s serial, domestic violence crime spree that has continued, almost without ceasing, for more than a decade, is clearly “frequent” for the purposes of this sub-paragraph. The Respondent also submits that there has also been an escalation in the seriousness of the Applicant’s offending to the point of the Applicant stalking and raping his domestic partner.[45] I find that there is an obvious and undeniable trend of increasing seriousness to the Applicant’s offending. Overall, I am satisfied that both elements of this sub-paragraph are strongly militative of a finding that the totality of the Applicant’s offending in this country has been of a “serious” nature.

    [45] R2, p 9, para [28].

    Paragraph 8.1.1(1)(e)

26. This sub-paragraph compels an enquiry into the cumulative effect of the Applicant’s repeated offending. I am of the view that the Applicant’s sequence of offences is demonstrative of a number of cumulative effects.

27. First, the Applicant’s rape and other offending against Victim 2 must, on any reasonable analysis, be found to have caused severe and deleterious psychological impacts on Victim 2. Victim 2’s victim impact statement tendered to the District Court of Queensland, further sets out the painful and disturbing effect of the Applicant’s offending on her life and family:

    “I, [redacted], am making this statement to tell the court what injuries I sustained and how my life has been affected by this act of violence.

    At the time of the incident, I felt shock, degraded and horrible. I was in excruciating pain, both mentally and physically. I endured three long years of emotional and physical abuse. [The Applicant] would just start attacking for no reason. I couldn't understand how someone who said he loved me, could hurt me like he did. I was begging him to leave me alone.

    After the offending, I was placed in a Womens Shelter with my six kids all under the age of 10 at the time. I felt that wherever I went, I wasn't safe. Anywhere I went, [the Applicant] would find me. For weeks, the kids and I slept in the same room. I kept the kids home from school even though I knew [the Applicant] was in custody. I just felt they were safer with me than anyone else. [The Applicant's eldest son, [redacted] , cried for a month afterwards and couldn’t sleep through the night without having nightmares.

    I was prescribed to take anti-depressants and diagnosed with post-traumatic stress disorder (PTSD).

    Although the physical scars may not remain, this incident has greatly affected my life in many ways. I don't trust people anymore. I have been hesitant to form a relationship since this and question everyone's intentions with me. The flashbacks of the offending constantly go through my head.

    Being out of the house for too long gives me anxiety and I often have panic attacks. I very rarely leave the house. I could be walking or driving and see something that reminds me of [the Applicant] and I just crumble. Every time I see someone with the same body shape or build as the Applicant I get scared. It still affects my day to day life.

    I found it difficult to deal with this and reached out to the domestic violence service centre to get help. For at least six months, I couldn't answer any phone calls. The only calls I was answering were those from my Mum and sister. Even now, it takes a lot for me to talk myself into calling someone for the first time. Because of this, I fell behind on my car payments and couldn't pay the loan back because I was unable to make phone calls. Being unable to make those calls meant that I couldn't call the car company in relation to the payments.

    I attended counselling once a week from when· I left the Womens Shelter, from May to December 2018. I am fortunate enough to have had Victims Assist Queensland give me $5000 to assist with counselling fees.

    My social life has changed because of this, I no longer want to leave the house which has impacted on my relationships with my friends and family. I've only recently started connecting with my sister again. I distanced myself with my family. I just wanted to be on my own. I had to move away as l couldn't stand to be in [redacted] and re-live with the constant reminders of [the Applicant] and the offending. It crippled the social side of me.

    After this, I found it hard to be a mother. I found it hard to parent them, not because I didn't want to, but because I was so broken. I felt and stiff feel so guilty for feeling this way. I had the pain of having to deal with the feeling of guilt for not getting away from him sooner, for the sake of the kids.

    Ever since this, I've had trouble sleeping. I have insomnia and can't steep in the dark or be in the dark alone. I don't go out at night and if I have to, I have to have someone with me and know they'll be there with me the whole time.

    Leading up to the trial I was anxious and it triggered PTSD. This meant that my sleeping patterns were all over the place, I was on heightened alert, and having panic attacks more often. I rarely left the house. I found it difficult to communicate to people during this time and was constantly apologising over little things due to my social anxiety. I was always afraid I was saying the wrong thing. ·   

    It was mentally and emotionally draining having to give to evidence. I have a fear of flying but had to fly … for the trial. I had to give evidence over two days which was a big trigger·.I had nightmares the night before the trial and after the first day of giving evidence. Being in [redacted] was difficult as there are more triggers for my PTSD because there are more memories with [the Applicant] and I was constantly reminded of him. I also saw his family members once at the courthouse and once in the shopping centre. This increased my fear that there would be some kind of verbal confrontation.

    Before this incident I was more grounded. I was a free spirit.

    Now I am living in constant fear all the time. I can't be round people much. This has affected relationships. I question everything and everyone's intentions all the time. I'm more observant now - I'm aware of everything going on around me. I'm constantly on edge. I'm not the person I once was.”[46]

    [46] R24, pp 15-16.

1. Following the Applicant’s offending against Victim 2, Victim 2 sought treatment for posttraumatic stress disorder (PTSD), anxiety and depression. According to Victim 2’s treating psychologist, Victim 2’s ongoing health issues were summed up thus:

   “[Victim 2] appears to meet the DSM-5 criteria for PTSD, and her symptoms of PTSD appear lo relate directly to the violence perpetrated by her former partner,[the Applicant]. She has completed a Postraumatic Stress Disorder Checklist (PCL-5) which indicates her symptoms of posttraumatic stress are in the severe range. The DSM-5 Criteria for PTSD are as follows:     

   Criterion A: Stressor. [Victim 2] stated that she believed her former partner Intended lo cause her serious physical harm. The assaults were extremely terrifying.

   Criterion B: Intrusion symptoms. [Victim 2] stated that Intrusive memories, nightmares and thoughts her former partner might come looking for her occur frequently, often with no apparent trigger.

   Criterion C: Avoidance. [Victim 2] avoids public places like shops, and only leaves home when she really needs lo. She feels highly anxious whenever she is out in public, where there are other people.

   Criterion D: Negative alterations in cognitions and mood. She describes persistent negative beliefs about the world, In particular beliefs about safety. She suffers persistent negative emotions related to the trauma: fear, anxiety, and sadness.

   Criterion E:'Alterations in arousal and reactivity. [Victim 2] describes constant hypervigilance, especially when out in public places. She describes problems with concentration, memory, and has trouble sleeping. She reports frequent Irritability, being exhausted from constantly being on guard, and finds she is easily distracted.

   Criterion F: These symptoms have persisted for more than a month.

   Criterion G: These symptoms have markedly impaired her social functioning.

   Criterion H: These symptoms are not due lo medication, substance use or other Illness.”[47]

   [47] R24, p 17.

2. Second, the Applicant appears to have directly and indirectly caused considerable trauma to some of his children by, among other actions, (i) violent offending, in their presence and otherwise at their home, against their mother; (ii) self-harming in front of some of the children; (iii) destroying and damaging property in front of the children; and (iv) creating a toxic environment of fear and crisis for the children’s mother (Victim 1).       

3. Third, the Applicant’s repeated breaches of domestic violence and related orders (on more than 10 occasions) tends to demonstrate contempt for Australian laws and lawful authority.      

4. Fourth, the progressive evolution of the sentencing regime imposed on the Applicant, demonstrates that he has failed to be deterred or dissuaded from repeat offending. The Applicant has received the full ambit of sentences. He appears to have taken nothing from the non-custodial nature of the sentences imposed in the early stages of his offending from 2009 to 2012. He appears to have taken nothing from being placed on probation in 2014 or from the suspended custodial terms in 2015 and 2016. The Applicant proceeded to commit ever more serious offending and to receive multiple terms of imprisonment in 2020.               

5. Fifth, the Applicant’s past difficulties with illicit substances have, without question, occasioned his domestic violence offending and otherwise distorted his moral compass such as to cause him to disrespect the personal right of others and the rights of others in the property they own.      

6. Sixth, the Applicant’s serial offending must, on any reasonable analysis, be found to have directly or indirectly consumed more than its fair share of community funded resources across law enforcement, the courts, mental and allied health professionals, child protection officials, women’s crisis accommodation and corrective services, among others.

7. The above-described cumulative effects of the Applicant’s repeated offending must militate in favour of a finding that the totality of his offending in this country has been of a “serious” nature.

   Paragraph 8.1.1(1)(f)

8. This sub-paragraph requires me to consider whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending. There was no material of substance before the Tribunal that the Applicant’s conduct falls within this sub-paragraph. Accordingly, I find that this sub-paragraph is not relevant to the assessment of the nature and seriousness of the Applicant’s offending in Australia.

   Paragraph 8.1.1(1)(g)

9. This sub-paragraph requires me to consider whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status. There was no material before the Tribunal to suggest that the Applicant had been formally warned about his migration status. Accordingly, I find that this sub-paragraph is not relevant to the assessment of the nature and seriousness of the Applicant’s offending in Australia.

   Conclusions about the nature and seriousness of the Applicant’s conduct

10. I have sought to apply each of the relevant sub-paragraphs in paragraph 8.1.1(1) of the Direction. With reference to the same, I am of the view that the totality of this Applicant’s unlawful conduct in Australia can be readily characterised as very serious. 

    The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

11. Paragraph 8.1.2(1) provides that, in considering the risk to the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.  The Respondent submits that the instant case is one in which “the risk of harm is so serious that any risk of reoffending is unacceptable.”[48] I accept this submission for the reasons set out below.

    [48] R2, p 10, para [30].

12. Paragraph 8.1.2(2) provides that, in considering the risk to the Australian community, I must have regard to the three following factors on a cumulative basis:

    (a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;

    (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    (i)information and evidence on the risk of the non-citizen re-offending; and

    (ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and

    (c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

    The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct

13. Sub-paragraph 8.1.2(2)(a) requires an assessment of the nature of harm to an individual or the Australian community were the Applicant to engage in further criminal or other serious conduct. In my view, should the Applicant engage in further offending that involves rape and/or stalking women using/threatening violence, the nature of harm includes very serious, potentially permanent, physical and/or psychological harm to the victim. Victim 2’s victim impact statement,[49] to which I have already referred, is a very real life example of the same. In this regard, I find that the harm is so serious that any risk of repeated offending is unacceptable.

    [49] R24, p 15.

14. To the extent necessary, I also find that:

    ·The harm from any future domestic violence and related order contraventions (aggravated or otherwise) offending would likely include physical and psychological harm to victims and others (such as children);

    ·The harm from future stealing and wilful damage offending may include physical, psychological and financial harm to victims; and

    ·The harm from future illicit drug possession and related offending will likely cause harm to the user and those around him (including other domestic partners and children) with consequent negative implications for the broader justice and health systems.                   

    The likelihood of the non-citizen engaging in further criminal or other serious conduct

    (i)    Information and evidence on the risk of the Applicant reoffending

15. In his personal circumstances form (PCF), the Applicant provides the following explanation as to his belief about the recidivist risk he represents in Australia (errors in original):

    “I strongly believe that I won’t be a risk to offending in the future! I have excepted my bad decision and am addressing it, through courses and understanding myself. I have much to lose by offending and making stupid decisions, I have grown so much mentally and emotionally and feel like I am changing for the better. My priorities are no longer mited up and I know wrong from right.”[50]

    [50] R1, G17, p 186.

16. The Applicant’s review application form filed with the Tribunal echoes the PCF (errors in original):

    “I have grown so much over the past few years, and can honestly say I’m a reformed and better person for it… I have done numerous self-help courses, and am still doing them whilst I'm in immigration detention, to better myself even more as a person. I have absolutely no intention to reoffend or comit futher acts of crime or violence in the future…I have honestly only got the best intentions at heart and won't let the Australian public down.”[51]

    [51] R1, G2, pp 3-8.

17. In the Applicant’s Statement of Facts, Issues and Contentions (SFIC), the Applicant contends that he poses no recidivist risk (errors in original):

    “Contention Regarding Key Fact 2. That the assessor believes I pose an ongoing risk to the community.

    … I am no threat to anybody.

    Any aspersion about me being an ongoing risk to the Australian community and as Primary Consideration against me, is something I can assure the tribunal is a concern that is not necessarry. I had bad relationships that broke down. The suggestion that I pose an ongoing risk however, are unjustified and should not hold as there is no evidence that this is even remotely the case. There is no factor in my life that suggests I am an imminent threat. In fact, I would never want to relive what I have been through these last 4 years. I can’t change what I have done, but I have taken up the help offered to me while I was in prison G3 p22(46). I made the decision to better myself as a person and I know I have done that. I know also that I can do more and I am grateful for that help.

    I hope that my efforts to this end have been taken into account per Direction No.90 8.1.2 (2)(b).

    The prison has agreed with this contention too. I am on parole and would ordinarily be allowed back into the community to serve the remainder of my sentence. My good behaviour and evidence of reform have been weighed against any perceived risk of my reoffending by the board. I presume there were no objections to my release from others either. My past conduct is in no way reflective of my future conduct and I feel this has been unfairly inflated in the decision maker’s justifications against me.

    I wish to reiterate that I am no threat. ….”[52]

    [52] A3, pp 4-5.

18. In the Applicant’s opening submissions and evidence-in-chief, the Applicant addressed his recidivist risk stating: 

    “I was given parole on the basis that I was deemed a low risk.  I have to do programs just - which are set out in my parole conditions, condition II…As to the global pandemic, and also with the war in Ukraine and Russia, making a risk of World War 3, risk of assessment for rating has not been done, just subjective submissions of the assessor. …That’s all I’ve got to start with.”[53]

    [53] Transcript, p 8, lines 40-47, p9, line 2.

19. The Respondent’s SFIC frames the Minister’s position on the Applicant’s recidivist risk as follows:

    “31. Turning to the likelihood of the applicant engaging in further criminal or other serious conduct, the Minister contends that there remains an ongoing and unacceptable risk of the applicant reoffending for these reasons:

    (a)There is no psychological opinion providing any professional risk assessment of the applicant’s likelihood of reoffending. However, the most recent judicial officer sentencing the applicant was of the view that the applicant’s risk of reoffending was high (G5/38). Her Honour said that the applicant was ‘a real danger to the victim and…a danger to a woman [he] may form a relationship with in future unless [he] change[s] [his] offending behaviour and …proprietary attitude towards women.’

    (b)The applicant has previously committed concerning acts of domestic violence offence against his former partners in breach of domestic violence orders (G5/38-39). He has continuously disregarded these orders by contravening them in the past.

    (c)The applicant has demonstrated a concerning lack of insight into his offending or remorse. He pleaded not guilty to the rape offence and maintained his innocence at trial. The sentencing judge said that the applicant sought to minimise his conduct, blamed the victim for the applicant’s behaviour, painted her as a liar and ‘took every opportunity to denigrate her character, her parenting and her version of events’ (G5/37). The sentencing judge concluded that the applicant’s conduct at trial and evidence suggested a complete lack of remorse and any insight into his offending behaviour. The applicant relevantly continues to deny the offending, for which he has been found guilty of, as noted in his submissions (filed on 15 July 2022).

    (d)Whilst the applicant has attended some courses whilst in custody including completing moral recognition therapy and a men’s recovery program, it should be viewed in the context that the applicant has not engaged in any rehabilitation which targets the most serious offence of rape presumably in circumstances where he continues to deny the offending.

    (e)Sufficient time has not elapsed where the applicant has been in an unsupervised environment given that he has been in custody or immigration detention since May 2018.”

    32. Overall, the Minister submits that there remains an unacceptable risk that the applicant will reoffend, potentially causing significant harm to members of the community. For these reasons, the Minister submits that the protection of the Australian community weighs heavily against revocation.”[54]

    [54] R2, pp 10-11, para [31]-[32].

20. During the Applicant’s cross-examination, the Respondent sought to impugn the Applicant’s evidence as to recidivist risk. The challenge to the Applicant’s evidence was configured as follows.

21. First: it was suggested to the Applicant that, despite his claims otherwise, he is a violent person;[55]

    [55] Transcript, p 15, lines 6-46, p 16, lines 1-45, p 17, lines 1-5. 

22. Second: before his most recent offending in 2018, based on his offending history, the Applicant has a very extensive record of serial threats and actual, violence, particularly domestic violence against his intimate partners (and the two mothers of his four biological children):

    “MR HAWKER: I want to ask you some questions about the history of violence?  

    APPLICANT: Okay.

    …

    MR HAWKER: …even before the most serious of your offending which led to the extended period of imprisonment, the sentencing Judge there is summarising your history of relevant criminal offending?  

    APPLICANT: Yes.

    MR HAWKER: And you’ll see there that what the sentencing Judge was saying was that it included nine previous convictions for contravening domestic violence orders against both this victim, and your former partner, to whom you you’re your children?  

    APPLICANT: Yes.

    MR HAWKER: And you’ll see the date range there.  The offending began in 2009 and continued on a regular basis in 2009, 2010, 2012, 2013, 2015 and 2016 and that’s correct, isn’t it?  

    APPLICANT: Yes, that’s correct.

    MR HAWKER: And the sentencing Judge went on to say:

    The contraventions of domestic violence orders against your former partner involved actual violence, property damage, entry into her home uninvited while she was asleep and using, interestingly, a pocketknife to commit property damage, as well as threatening violence. 

    MR HAWKER: And you accept that that’s accurate as well?  

    APPLICANT: Yes, yes.”[56]

    [56] Transcript, p 17, lines 6, 24-45.

23. Third: the Applicant has received a probation order in 2010,[57] and part of the assessments for the same identified a primary rehabilitation need in relation to domestic violence, for which he was directed to, and did satisfactorily, engage with Relationships Australia. However, this failed to deter the Applicant from breaching domestic violence orders and otherwise disrespecting domestic violence orders:

    [57] Transcript, p 24, line 36-39, p 25, lines 11-19

    MR HAWKER:  And so, Mr [Applicant], what we understand from this, is by this point in time in your life, 2010, you’ve committed three breaches of a domestic violence order.  You’re a father.  You’ve been given the benefit of probation and you’ve been referred to and attended to address a primary rehabilitation meeting in relation to domestic violence with Relationships Australia; that’s correct?

    APPLICANT: That’s correct.

    MR HAWKER:  And when we look at what happened after this, you would accept that, despite attending, this didn’t solve your issue with domestic violence; correct?

    APPLICANT: Not necessarily.  I think it did - it did.  That’s why there was no contraventions in that period.  But, again, being in a toxic relationship where the - the aggrieved in that situation kind of does use the police as their personal bugs at times, you know.

    …

    MR HAWKER:  …It certainly didn’t grow any respect in you for domestic violence orders; correct?  

    APPLICANT: As on paper, it shows it doesn’t, no but personally I think it did, yes.

    MR HAWKER: Well, if it did, why did we see that there was another four breaches?  

    APPLICANT: There was probably more than four.

    MR HAWKER: All right.  Well, on your account, let me suggest there was at least four because it would be set out in your criminal history?  

    APPLICANT: Yes.”[58]

    [58] Transcript p 26, lines 1-13, 33-41.

24. Fourth: as time went on, as the Applicant was advancing in his twenties, (he was 25, turning 26) in February 2012, he continued to have unresolved domestic violence issues and disrespect for domestic violence orders. The Applicant further contravened domestic violence orders on three occasions in quite close succession on 30 September 2013, 27 December 2013 and 31 December 2013.[59]

    [59] Transcript, p 27, lines 42-46, p 28, lines 1-4.

25. Fifth: the Applicant received a further probation order in 2014,[60] after again breaching domestic violence orders and threatening to kill Victim 1[61] Part of the assessments for the probation order identified primary rehabilitation needs in relation to domestic violence and substance abuse,[62] for which he was directed to, but did not satisfactorily, engage with Relationships Australia, and continued to offend:

    [60] Transcript, p 31, lines 40-46.

    [61] Transcript, p31, lines 15-19.

    [62] Transcript, p 32, lines 1-4.

    “MR HAWKER: And, so this is some four years after your first identified as having that rehabilitation need and undertaking attendance with Relationships Australia?  

    APPLCIANT: Yes.

    MR HAWKER: Further offending has taken place and it’s further been identified that there is still this need for intervention in relation to domestic violence.  That’s a correct summary?  

    APPLIANT: Correct.

    MR HAWKER: And what we see from this summary is ultimately you demonstrated an unsatisfactory response to supervision by failing to engage in interventions as directed and committing multiple offences?  

    APPLICANT: Yes.”[63]

    …

    “MR HAWKER:  And so, Mr [Applicant], I’ll just read that out again.

    Mr [Applicant] demonstrated an unsatisfactory response to supervision by failing to engage in interventions as directed and committing multiple further offences.

    MR HAWKER: Do you accept that that’s an accurate summary? 

    APPLICANT: Yes.  Yes.

    MR HAWKER: And when we look at your criminal history, that we’ve seen in the G documents, we see that one of the offences occurred within months of the July 2014 sentence in the Cairns Magistrates Court and that was…There’s a possessing dangerous drugs offence and in the brackets there’s the date on 9 September 2014?  

    APPLICANT: Yes.  Yes.”[64]

    [63] Transcript, p 32, lines 12-24.

    [64] Transcript, p 33, lines 6-24.

1. Sixth: by mid-2015, the Applicant started a “drug-fuelled” relationship with Victim 2,[65] and within months, the Applicant committed a further contravention of a further domestic violence order against her on 30 September 2015.[66] The Applicant was given a term of imprisonment of six months that was suspended.[67] The Applicant conceded that the relationship was attended by violence perpetrated by him against Victim 2:

   [65] Transcript, p 24, line 28.

   [66] Transcript, p 34, lines 4-38.

   [67] Transcript, p 36, lines 4-5.

   “MR HAWKER:  To this current day do you accept at all that you were violent to [Victim 2]?  

   APPLICANT: I guess at times I could’ve - I would’ve been.  There’s no denying that.  If it wasn’t physical maybe it would’ve been mentally or emotionally.”[68]

   [68] Transcript, p 34, lines 40-43.

   Seventh: in 2016, the Applicant committed a further contravention of a domestic violence order on 19 October 2016. The circumstances of this and a subsequent contraventions demonstrated an even greater disregard for domestic violence orders:  

   “MR HAWKER:  …when the police attended they found Victim 2 and her children underneath the house and you upstairs inside?  

   APPLICANT: Okay.  Yes.  Maybe.  Yes.

   MR HAWKER:  And you had told the police that you knew you were breaching a protection order by being there?  

   APPLICANT: Yes.

   MR HAWKER:  And you did know that, didn’t you? 

   APPLCIANT: Yes.

   MR HAWKER:  Yes?  

   APPLICANT: I’ve told you this throughout that we’re - they always had a no contact order but we’re in a de facto relationship.  I’ve never hidden that.

   MR HAWKER:  Yes.  And what you told the police at the time was a piece of paper was not going to stop you from seeing your child.  Then when you get out of the watchhouse you go right back to the victim’s place again.  That’s correct, isn’t it?  

   APPLICANT: Yes.  Sounds about right.

   MR HAWKER: And the sentencing judge has put in the most sentencing remarks would describe this contravention as showing a complete disregard for the protection order in place at the time.  And that’s an accurate summary, isn’t it?  

   APPLCIANT: Yes.  I would say so.  But I think so - not necessarily just on my behalf.  I think that it works two ways.

   MR HAWKER:  And the result of this offending on 19 October 2016, you found yourself before the Cairns Magistrates Court again by the end of the year in 2016, by 13 December 2016, and …and the sentence was four months’ imprisonment concurrent with the sentence imposed on 2 November 2015 to be served by way of an intensive corrections order?  

   APPLICANT: Yes.[69]

   [69] Transcript, p 36, lines 18-46.

2. The intensive corrections order (imposed on 13 December 2016) had a condition that the Applicant must get counselling and attend programs as directed, including to address his domestic violence offending.[70] He was assessed “as having high rehabilitation needs and substance abuse, mental health, general health, and domestic violence.”[71] However, as with past rehabilitation efforts, these activities were ultimately unsuccessful. The Applicant conceded that what happened after this was, again, further domestic violence offending despite the attempts to address his issues.[72]

   [70] Transcript, p 37, lines 9-14.

   [71] Transcript, p 37, lines 16-17.

   [72] Transcript, p 37, lines 35-43.

3. Eighth: in relation to the Applicant’s rape of Victim 2 on 22 April 2018, the Applicant was taken at length through the facts of the relevant day, as accepted by the District Court. He denied those facts in the following terms:  

   “MR HAWKER: When she eventually got home you were already there.  Do you accept that?  You were there when she got home?  

   APPLICANT: I don’t know about that.  I really can’t - I really don’t - can’t remember that.  I’m not too sure.  I think I was, but - - -

   MR HAWKER: And what the sentencing judge described is that you went inside uninvited and you raped her later that evening?  

   APPLCIANT: That’s what it said.  Yes.

   MR HAWKER: And that’s the part that you dispute, I take it?  

   APPLICANT: Yes.  Yes.  A hundred per cent.

   MR HAWKER: …where you were at the house you accept that you continued to accuse her of sleeping with someone else?  

   APPLCIANT: Yes.

   MR HAWKER: And you threatened to punch her in the face?  

   APPLCIANT: No.

   MR HAWKER: And you said that you should have sex, and she told you no, she didn’t want to have sex with you.  You told her you were going to have sex?  

   APPLICANT: No.

   MR HAWKER: She said, would you rape me, are you going to rape me?  

   APPLICANT: Well, apparently.  That’s what she said, I think.

   MR HAWKER: Yes.  And you accept that their words that she spoke to you?  

   APPLICANT: No.  No way.

   MR HAWKER: And you said yes, one way or another we’re going to have sex.  Correct?  

   APPLCIANT: No.  No.  Not correct.

   MR HAWKER: you then raped her by having sex with her without her consent?  

   APPLICANT: No.

   MR HAWKER: You ejaculated inside her and did not use a condom?  

   APPLICANT: No.

   MR HAWKER: And the children were at the premises at the time, weren’t they?  

   APPLICANT: They were.

   MR HAWKER: And do you recall she asked you why you wanted to have sex with her and you replied because this is my pussy?  

   APPLICANT: No.  Not at all.”

   MR HAWKER: And … afterwards you verbally abused her and called her derogatory names before leaving the house?  

   APPLICANT: No.”[73]

   [73] Transcript, p 41, lines 20-45.

4. Ninth: the Applicant was asked whether he accepted the learned District Court Judge’s summary of his April 2018 offending, as set out in her Honour’s sentencing remarks on 27 August 2020. The Applicant offered a partial acceptance and rejection of the same: 

   “MR HAWKER: The most serious of your offending, while we’re on the sentencing remarks, you’ll see earlier on the page, page 37, in particular line 30 to 32, the sentencing judge said that your offending is objectively extremely serious, it was physically abusive and violence but also emotionally and psychologically abusive.  It was persistent, controlling and coercive.  Now, do you accept that summary and that description of your offending by the sentencing judge?  

   APPLICANT: No.  No.  I don’t.  I do with some of it, I do.  I accept the emotionally and physical abusive, and it was persistent, controlling and coercive, yes.  Physically no, because I still stand by I didn’t - the rape never occurred.  It never happened.  So, that’s the physical violence she’s referring to.  So, no.  I don’t agree with that at all.”[74]

   [74] Transcript p 45, lines 8-18.

5. Staying with the learned District Court Judge’s sentencing remarks, her Honour stated that “clearly the jury did not accept your account.”[75] Her Honour indicated the Applicant’s evidence was self-serving, seeking to minimise his conduct, denying the extent of his previous violence in a relationship, blaming Victim 2 for his behaviour and painting Victim 2 as a liar. In this context, the Applicant whether he continued to blame the victim for his behaviour:[76]

   “APPLICANT: Look, I take full responsibility for the offending that I have committed.  I fully do.  All the domestic violence and I am very remorseful.  I’m sorry that I put her through such a hard time, and not only her, the kids, families.  You know, the ripple effect was immense.  And I take that.  I fully appreciate the severity of the crimes at hand that I did do.  But, I can’t be remorseful for something I haven’t done, and it’s as simple as that.  And if you want to deport me over that well go ahead, you know.”[77]

   [75] Transcript p 45, lines 41-43.

   [76] Transcript, p 46, lines 1-8.

   [77] Transcript, p 46, lines 8-15.

6. Tenth: in light of the Applicant’s denial that he raped Victim 2, the Applicant was asked whether, for the purpose of the Tribunal proceeding, he maintained the position that he took no responsibility whatsoever for the offending:

   APPLICANT: Yes.  That’s a hundred per cent right, and I’ll continue to do so till the day I die.  You know, I - I’ve been given a plea deal where I, you know, get sentenced to five years and get sent - get immediate release at my trial, prior to my trial, which I chose not to because, you know, it’s the principle of it and I know what - who I am and what I’m not.  So, I chose to go to trial and my conscience is clear.  You know, even though I served four years for saying I haven’t done it, my conscience is clear, and it’s simple as that.  And I’ll do it all over again without a second thought.”[78]

   [78] Transcript, p 45, lines 23-39.

7. Eleventh: Despite the Applicant’s initial claims to the contrary, the Applicant’s offending against Victim 2 has had an impact on the children beyond the Applicant’s mere physical absence from their lives. The Applicant conceded this point.[79]

   [79] Transcript, p 43, lines 44-46.

8. The Tribunal also heard and received lay evidence from members of the Applicant’s family and friends about his recidivist risk. In particular, the Tribunal heard from Joshua Hofman, Leon Baggow, Nadia Rengifo, Yvonne Druppers, Nico Wourterse, and Ivy Querubin [80]  that the Applicant is of no or limited risk of reoffending. Subject to what I say below, all of the witness evidence was based on a factual premise that is not made out and is inaccurate, namely, all the witnesses called by the Applicant either: (1) did not accept his guilt for the crimes for which he has been incarcerated; or (2) did not consider him to have previously been violent. Accordingly, I am unable to give their assessment of the Applicant’s character or his risk to the community much weight.

   [80] See Transcript pp 71-94.

9. Similarly, I have reviewed support letters from Sheila Brim,[81] Yvonne Druppers,[82] Nico Wouterse,[83] Joshua Hofman,[84] Fiona Hofman,[85] Samuel Hofman,[86] Ivy Querubin,[87] Nadia Rengifo,[88] Leon Baggow,[89] and Takiddo Savage.[90] Unfortunately, all of these letters either glossed over, or failed to refer to, the Applicant’s offending. Accordingly, I am unable to give their assessment of the Applicant’s character or his risk to the community much weight.

   [81] R1, G19 p 197.

   [82] R1, G24 p 264, A14.

   [83] R1, G25 p 265, A11.

   [84] R1, G26 p 266, A8.

   [85] R1, G27 p 268 – 269.

   [86] R1, G28 p 270.

   [87] A4 and A5.

   [88] A6 and A7.

   [89] A9 and A10.

   [90] A15.

10. The Tribunal also heard[91] and received[92] evidence from Victim 2 primarily in relation to the best interests of her and the Applicant’s children. The Tribunal also received evidence[93] from Victim 2’s sister, (Victim 2’ Sister) primarily in relation to the best interests of the Applicant’s children. I do not place weight on this evidence for the purposes of assessment of the Applicant’s risk to the community. 

    [91] Transcript, pp 64-70.

    [92] A12 and A13.

    [93] R1, G29,pp 271-272.

    (ii)    Evidence of rehabilitation achieved by the Applicant by the time of this decision

11. The Applicant has offered no independent expert clinical evidence about this recidivist risk. Most concerningly, the Applicant adduced no expert/clinical evidence regarding his rehabilitation from:

    ·his violent behaviour and long-term domestic violence offending; and

    ·his long-term substance abuse (which includes use of marijuana from the age of 13 years,[94] and regular (growing to daily) use of methylamphetamine from the age of 25 years (around 2011) until he was incarcerated in 2018) – which he concedes is another reason for his offending.[95]

    [94] Transcript, p 47, lines 28-30.

    [95] Transcript, p 47, lines 10-12, 34-45, p48, lines 1-2. 

12. The Applicant has participated in Alcohol, Tobacco and Other Drug Service  (ATODS) sponsored “self-development and therapeutic programs whilst in the custody”. According to the program facilitator, the programs involved:

    ·A 12-week Moral Recognition Therapy (MRT) program - MRT is a cognitive behaviour therapy based systematic treatment approach that focuses on areas of personality stages and moral thinking (completed 11 March 2021); and

    ·An 18-week Helping Men Recovery program (HMR) - HMR is a structured program consists of 4 main modules, which consists of separate weekly sessions: (i) Self -  defining self, men in recovery, sense of self, inside & outside of self, men and feelings; (ii) relationships - family of origins, barriers to relationship, mothers, fathers, creating healthy relationships and support system; (iii) Sexuality - sexuality and addiction, sexual identity, barriers to sexual health, healthy sexuality; and (iv) Spirituality -  what is spirituality, real men, creating a vision (commenced 22 June 2021).[96]

    ·The Applicant also completed a two day ‘Brain Matters’ course facilitated by ATODS,[97] that he described as focusing, “on how the brain works in regards to thought, emotion and behaviour”.[98]

    [96] A1, G21, pp 252-253.

    [97] R1, G23 p 260.

    [98];R1 G20 p 210.

13. The Applicant’s evidence is that he has completed a number of stress and anger management workbooks while incarcerated.[99] His evidence is that he has also completed some personality and conflict management courses including a ‘Circuit Breaker’ course.[100].

    [99] A16, A17, A20, p 4-7.

    [100] A16.

14. The Applicant has expressed a “goal” to find “treatment and self-help courses to address domestic violence mental and physical wellbeing” upon release from prison.[101] The Applicant made some submissions that his parole and parole conditions are suggestive that he poses low risk of reoffending.[102] However, I do not accept these submissions on the basis that the grant of parole and reoffending risk are two independent concepts, the former is not a reflection of the latter. Parole is granted on the basis that any risk to the safety of the community is able to be managed through reporting and/or conditions.[103]    

    [101] A23, p 1.

    [102] Transcript, p 8, lines 40-42.

    [103] Peterson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1256 [75] to [77].

    (iii)   Conclusions about risk

15. Before addressing my conclusions about the risk that the Applicant poses to the Australian community, I need to say something about the picture painted by the Applicant’s evidence about himself. The Respondent contends that the Applicant presented as an unimpressive witness. I think this is a generous interpretation. The Applicant directly refused to accept full responsibility for his conduct. His evidence was self-serving. He sought to minimise his conduct and continued to deny his most serious offending. He also repeatedly blamed his victims of his offending. The Applicant’s approach in this regard is of a similar tenor as came out in his evidence in the District Court in 2020. Together, these matters do not paint the Applicant’s credibility in a favourable light. 

16. The Applicant was convicted for the serious offence of rape, among others, which he continues to deny. Even if there was evidence before me that the Applicant is innocent of this offending (which there is not), relying on evidence contrary to the essential conviction or sentencing facts would amount to jurisdictional error on my part.[104] Accordingly, I expressly accept the essential conviction and key facts found for (or forming the basis of) sentencing for the Applicant’s offending, as relevantly extracted above.

    [104] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 at [68].

17. Having identified the true state of affairs, I draw the following conclusions:

    ·this is a case in which the risk of harm is so serious that any risk of reoffending is unacceptable. If this Applicant were to reoffend in ways that involve rape and/or stalking a women using/threating violence, the nature of harm includes very serious, potentially permanent, physical and/or psychological harm to the victim. In this regard,  Victim 2’s impact statement helps to crystallise the parameters of such impact;

    ·the Applicant’s claim that he is “no threat to anybody” is simply not credible. In August 2020, the learned District Court judge commented that the Applicant was, in her Honour’s view, a high risk for domestic violence reoffending, a real danger to Victim 2 and, given his criminal history for domestic violence offending, a danger to future intimate female partner, unless he changed his offending behaviour and his attitude towards women. On the evidence before me, I do not detect any real change in the Applicant’s attitude towards women, and hence I find that her Honour’s comments in 2020 retain their currency today – the Applicant continues to have a high risk for serious reoffending;

    ·the Applicant has put very little if anything to the Tribunal to give me a measure of comfort that he’s addressed the high risk of reoffending. Given the seriousness of the Applicant’s offending over such a long period of time, I do not accept that doing a couple of self-development and therapeutic programs together with stress and anger management workbooks in prison constitutes sufficient and durable evidence of rehabilitation. I also note that the Applicant otherwise tendered only limited independent evidence from any course facilitator or psychologist commenting on the outcome or effect of the Applicant undertaking courses;

    ·the Applicant previously attempted and failed at rehabilitation in terms of domestic violence. There were two points in time when the Applicant was last in the Australian community where there were attempts to rehabilitate him from his domestic violence behaviour, and those attempts ultimately did not succeed. In fact, not only did the domestic violence behaviour continue, but it escalated to the most serious offence of rape;

    ·the Applicant highlighted to the Tribunal that his substance abuse (including, at times, daily use of methylamphetamine) was a factor in his domestic violence offending. Save for that which I have addressed above, the Applicant offered no serious evidence that his substance abuse issues have been addressed. I also note that the Applicant otherwise tendered no independent evidence about the same;  

    ·finally, the Applicant’s repeated, defiant denials of his guilt for his most serious offending indicate to me that he has clearly not really accepted responsibility and lacks remorse for actions. This is fundamentally inconsistent with evidence of rehabilitation; and

    ·overall, I find that this Applicant has a presently serious, and unacceptably high risk of reoffending.

    Is the risk of harm affected by any of the factors referred to in sub-paragraph 8.1.2(2)(c) of the Direction?

18. Paragraph 8.1.2(2)(c) provides:

    “where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.”

19. I address this specific sub-paragraph purely out of an abundance of caution and for the sake of completeness. This matter does not involve a, “refusal to grant a visa to a non-citizen”. It involves an application for the, “revocation” of a decision to mandatorily cancel the Applicant’s visa. This specific paragraph is not relevant to the determination of this application.

    Conclusion: Primary Consideration 1

20. With reference to the weight attributable to this Primary Consideration 1:

    (a)I have found that the nature and seriousness of the Applicant’s conduct to date has been, very serious;

    (b)I repeat my finding that were the Applicant to reoffend, the nature of the harm to individuals or the Australian community would be very serious and would involve potentially permanent, physical and/or psychological harm to the victim; and

    (c)I have assessed the Applicant’s recidivist risk of engaging in further criminal or other serious conduct (upon return to the community) as high by taking into account (1) available information and evidence before us informative of such risk and (2) the dearth of any expert and independent clinical written evidence speaking to the levels of rehabilitation achieved by this Applicant.

1. Second: there seems to be a disconnect between, on the one hand, the Applicant’s submissions and materials, and, on the other hand, his oral evidence (and other evidence before the Tribunal), about his commitment to each of C1, C2, C3, C4 and C5:

   ·the Applicant’s materials and/or oral evidence repeat, at some length, how his children are his “number one priority”, how he wants to be in “proximity of the kids”, and that his kids “need” him in their lives. At the same time, the Applicant told the Tribunal under cross-examination that, notwithstanding C1, C2, C3, C4 and C5 all reside in the Cairns area, he has no intention to live in the same area; 

   ·the Applicant was additionally asked whether he planned to stay with C1 and C2. He answered, “No. Well, if they want to follow me [somewhere else], they’re more than welcome.” In light of the Applicant not intending to live in the local area around C1 and C2, he was questioned about what type of contact he intended to maintain with C1 and C2. The Applicant’s answer was, “They can visit me on holidays.  I can visit them.” It is clear to me that C1 and C2 are cared for by their mother (Victim 1), who fulfils the parental role, and there no evidence before me to suggest otherwise;  

   ·the Applicant was questioned on whether he intended to live with C3, C4 and C5, his response was “Well, they would be in care with their mother…”. Indeed, Victim 2 is fulfilling a parental role for these children, and appears to have the necessary support to do so in Cairns;

   ·the Applicant told me that he, “thinks it’s time for him, “to kind of leave [his] comfort zone and start afresh somewhere” such as the Gold Coast or the Sunshine Coast; and

   ·in my view, the Applicant’s evidence paints a picture of indifference to the interests of C1, C2, C3, C4 and C5. While I accept that the Applicant desires some relationship with the children (on his terms only), that’s quite different from fulfilling a positive parental role (with all that that entails), which the Applicant does not appear to me to want to seriously undertake.

2. Third: the Applicant has never sought Family Court orders to have time with C1, C2, C3, C4 and C5. He does not appear to have any intention of doing so in relation to C1 and C2 in the future. In any case, C1 and C2 will turn 18 in December 2023 and February 2025 respectively. The Applicant claims that he now intends to seek Family Court orders for C3, C4 and C5. I am sceptical of this claim for reasons set out above. In any event, I consider it objectively unlikely that the Family Court would grant such orders to the Applicant given his long history of serious domestic violence offending, and the fact that the Applicant exposed the children to his offending against Victim 2.

3. Sub-paragraph (c): this sub-paragraph refers to the impact of the non-citizen’s prior conduct and any future conduct on the relevant minor children. The evidence clearly demonstrates that C3, C4 and C5 were witnesses to the domestic violence perpetrated by the Applicant against Victim 2. The long-term emotional trauma suffered by these children having, on Victim 2’s evidence, its genesis in their exposure to the Applicant’s domestic violence offending against her, necessitates professional support and treatment for C3, C4 and C5. C1 and C2 are aware that the Applicant has been incarcerated for criminal conduct. Separately, the likely future impact from domestic violence reoffending by the Applicant (and I consider there to be a high risk of the same) would likely have to have a negative impact on C1, C2, C3, C4 and C5.  

4. Sub-paragraph (d): there is limited evidence of an adverse effect that any separation would specifically have on C1, C2, C3, C4 and C5. However, there is not any obvious impediment to the Applicant having contact with his children via electronic means from the Netherlands. Indeed, the Applicant has been conducting his relationship with C1, C2, C3, C4 and C5 online for many years already.

5. Sub-paragraph (e): I have already indicated that C1 and C2 are cared for by Victim 1 who fulfils the parental role. C3, C4 and C5 are cared for by their grandmother and (now) Victim 2, who fulfil parental roles.

6. Sub-paragraph (f): although the Tribunal did not receive or hear any evidence from the any of the minor children, however, based on the evidence of others including Victim 2’s sister, I assume for the purpose of these responses that C3, C4 and C5 wish their father to remain in Australia. I assume for the purposes of these reasons that C1 and C2 hold a similar view. 

7. Sub-paragraph (g): I have already indicated that there is evidence that C1, C2, C3, C4 and C5 have been exposed to the family violence perpetrated by the Applicant.

8. Sub-paragraph (h): I have already indicated that C3, C4 and C5 have disclosed feeling scared due to previously witnessing the domestic violence. There is also clear evidence that these children have suffered mental trauma and required professional assistance as result. This sub-paragraph (h) does not appear to apply to C1 and C2.

9. Separately, I have assessed the relevant sub-paragraphs of paragraph 8.3(4) in relation to C6, C7 and C8. In my view, the Applicant is in a non-parental relationship with these children and unlikely to play a positive parenting role in the future given his criminal history and the fact that the children reside in Victoria. These relationships can best be described as avuncular. There is no obvious impediment to the Applicant having contact with these children via electronic means from the Netherlands.

   Findings about the relevant minor children

10. I am of the view that the evidence around the best interests of relevant minor children in Australia who would be affected by a non-revocation decision is not a particularly compelling feature of this case.

11. In my view (and I find that):

    • the Applicant does not, in substance, wish to play a (positive) parental role (with all that that entails) in the lives of C1, C2, C3, C4 and C5. Even if the Applicant was willing to do so, I find that he is unlikely to be able to play this role for the reasons set out above; and
    • the Applicant has an avuncular relationship with C6, C7 and C8.

    Conclusion: Primary Consideration 3

    I have had regard to the relevant and applicable factors in paragraph 8.3 of the Direction as those factors relate to each of the relevant children captured by the auspices of this Primary Consideration 3.  Having regard to the totality of the evidence and whatever cumulative strength can be found for that evidence upon application of the relevant sub-paragraphs in paragraph 8.3(4) of the Direction, I find that this Primary Consideration 3 weighs, at best, slightly but not determinatively, in favour of revoking the decision to mandatorily cancel this Applicant’s visa.

    primary consideration 4: expectations of the australian community

12. The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[182] The Direction further explains:

    “This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.4(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.”[183]

    [182] Direction, paragraph 8.4(3).

    [183] Direction, paragraph 8.4(4). Paragraph 8.4(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.

13. With reference to the propositions in paragraph 8.4(1) of the Direction, the architecture of this sub-paragraph can, to my mind, be expressed thus:

    (a)the Australian community expects non-citizens to obey Australian laws while in Australia; and

    (b)as a norm, where a non-citizen has either:

    ·     breached the expectation in the immediately preceding sub-paragraph (a); or

    ·     there is an unacceptable risk that the non-citizen will breach the expectation in the immediately preceding sub-paragraph (a);

    ·     then, the Australian community expects that the Australian government will not allow such a non-citizen to enter or remain in Australia.

14. Clearly, this Applicant has breached the Australian community’s expectations by his extensive criminal record, evidencing repeated breaches of Australian laws. Therefore, the Australian community, “as a norm” expects the Australian government not to allow him to remain in Australia.

15. In addition to the guidance provided by paragraph 8.4(1) of the Direction, paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

    (a) acts of family violence; or

    (b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

    (c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

    (d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

    (e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

    (f) worker exploitation.

16. Earlier in these reasons, I found that the Applicant has committed acts of family violence, all of which were also serious crimes against women. The Applicant’s commission of these offences engage the principle in paragraph 8.4(2), which means the Australian community expects that the Australian government can and should cancel this Applicant’s visa.  

17. The final question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(4) and (5) of the Direction. In summary these are:

    (a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;

    (b)the Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;

    (c)Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life; and

    (d)the nature of a non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify a visa outcome that is not adverse to the non-citizen.

18. In relation to (a), the term, “limited stay visa” is not defined in the Act. However, the Act does classify visas into particular categories. Section 30 of the Act contemplates both (1) “permanent” visas, which permit a right to remain, “indefinitely”; and (2) “temporary visas”, which provide a conditional right to remain. “Limited stay”, as used in the Direction, seems to our minds, to be a reference to non-permanent or, “temporary” visas. This Applicant had a permanent visa, so this principle described in the abovementioned sub-paragraph (a) does not apply to determination of this application.

19. In relation to (b), the Applicant has resided in Australia on a permanent basis from the age of 13 (after spending some time in the Netherlands and some time in Australia before that). He will be 37 in May 2023. Based on the materials, before me he has attended High School to year 10 in Australia and undertook three years of a chef apprenticeship. He has a spotty employment history in Australia, [184]  has fathered four children here (and has taken a fifth stepchild as his own), although the degree to which he has exercised associated parental responsibilities is open to question. This means that the Australian community’s tolerance for this Applicant is increased by this component of the principles.

    [184] R1, G17, p 187.

20. In relation to (c), the Applicant has resided in Australia for more than two decades (since returning from the Netherlands, most recently, in 1999), having spent nearly 28 years of his life here in total. This means that the Australian community’s tolerance for this Applicant is increased by this component of the principles.

21. In relation to (d), I am of the view that (and do find) that the balancing exercise between (on the one hand) whatever countervailing considerations may work in his favour, is a necessary a principle referable to the Australian community’s expectations for present purposes. I have reached this view because I think the Applicant’s conduct, and resulting harm from that conduct (at least thus far), has been of a sufficient magnitude to dispel or quash any applicable countervailing considerations.

22. I therefore arrive at the finding that the Australian community’s expectations are, to a very small extent, modified such that the community has a higher than usual tolerance of the criminal conduct committed by this Applicant. Be that as it may, because of: (1) his repeated breaches of the Australian community’s expectations; and (2) his offences in the realms of, family violence and serious crimes against women, I am of the view that the community expects the government can and should cancel this Applicant’s visa.  

    Conclusion: Primary Consideration 4

23. Primary Consideration 4 carries a very heavy level of weight against revocation of the mandatory cancellation of the Applicant’s visa.

    OTHER CONSIDERATIONS

24. It is necessary to look at the Other Considerations non-exhaustively listed at paragraph 9 of the Direction.

    Other Consideration (a): International non-refoulement obligations

25. There is no suggestion on the evidence before the Tribunal that this consideration is relevant to the review. As such, I find it has neutral weight.

    Other Consideration (b): Extent of impediments if removed

26. Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    (a)the non-citizen’s age and health;

    (b)whether there are any substantial language or cultural barriers; and

    (c)any social, medical and/or economic support available to that non-citizen in that country.

    The Applicant’s written submissions

27. The Applicant indicated on his PCF that he had no diagnosed medical or psychological conditions.[185] On the same PCF, he ticked yes to the question on whether he has concerns or fears about what would happen to him if he were to return to the Netherlands. He explains that he has “no family there,” and fears that he would not “be able to cope.”[186] He also explains that he would face “so many problems” if would be returned but does not really explain the nature of those problems. [187]

    [185] R1, G17, p 188.

    [186] R1, G17, p 189.

    [187] R1, G17, p 189.

28. The Applicant’s SFIC makes the following contentions: 

    “[being] removed from love and familial support is likely going to be very difficult; …The impediments I will face as a result of language barriers, support services and in a country where there is a housing affordability crisis, is difficult to comprehend.”[188]

    [188] A3, p 6.

29. The Applicant’s “addendum to contention” submission makes the following further contentions about the Applicant’s health:

    I was admitted to hospital whilst in prison for heart inflamation - pericarditis. I have also had ongoing problems with my spine. I had back surgery before I was imprisoned and still receive regular treatment for this while in immigration detention. I’m on strong pain killers which help, but they affect me too. I’m doing my best to strengthen my back. I have just been diagnosed with a few issues, namely:

    1. Large disc extrusion at L5-S1 with high grade central canal stenosis and impingement of the greater than left S1 nerve roots.

    2. Mild to moderate central stenosis at L4-5

    3. Degenerative disc disease in the lumbar spine.

    This has come as a severe blow but at least explains why I’m always in pain. I don’t want pity, but if deported I am likely to find myself limited to unskilled labour and/or in a physically demanding job. The specialist has suggested that back surgery may help but I can’t fathom how I can realistically support myself in a foreign country, with no support, if mobility becomes a bigger issue. I don’t know if I can get treatment on a limited income?

    I have had noted psychological issues and notes to this affect are contained within the G documents. As mentioned, anybody can see I was not behaving in a very rational manner during that day in question.

    …

    Forced removal from my entire family will undoubtedly weigh significantly on me.[189]

    [189] A20, p 1, 3.

    The Applicant’s oral evidence

30. The Applicant advanced a couple of points in his submissions. First: he told the Tribunal that he “really [has] no ties to The Netherlands.  I’ve said it before in my evidence that I’ve submitted, The Netherlands is truly a foreign country to me.[190] Second: he indicated that if he were to get deported “there would be absolutely nothing [he’d] be going to, and [he doesn’t] know where [he] would start.  [he] can’t even speak their language…[191] Third: he said that “By [his] deportation not only will [his]  life be destroyed but the lives of five innocent children, …parents, …brothers and sister-in-law, nephew, nieces and …dear friends.  The ripple effect will just be immense.”[192]

    [190] Transcript, p 112, lines 26-28.

    [191] Transcript, p 112, lines 30-31.

    [192] Transcript, p 113, lines 6-8.

31. During cross-examination, several themes were explored. First: the Applicant accepted that English is, to a certain extent, spoken in the Netherlands.[193] Second: the Applicant admitted, that he “probably” has some of his family in the Netherlands.[194] Third: the Applicant accepted that he has an uncle, cousin and step-uncle in the Netherlands.[195] 

    [193] Transcript, p 55, lines 23-25.

    [194] Transcript, p 55, lines 43-46, p 56, lines 1-2.

    [195] Transcript, p 56, lines 9-30

    Other evidence

32. The Applicant’s mother, Ms Druppers, indicated, under cross-examination, that:

    ·Ms Druppers has two brothers, two nieces and two nephews living in the Netherlands;[196]

    ·the Applicant has some Dutch language skills “but not enough to carry a conversation perhaps;”[197]

    ·Ms Druppers is in contact with her family in the Netherlands and has recently travelled to the Netherlands for husband’s father’s birthday;[198] and

    ·while she had not had a conversation with her Netherlands based family members about the possibility of the Applicant’s return,[199] she indicated that she “maybe”[200] could do.

    [196] Transcript, p 87, lines 6-11.

    [197] Transcript, p 88, lines 1-3.

    [198] Transcript, p 88, lines 7-26.

    [199] Transcript, p 88, lines 30-34.

    [200] Transcript, p 89, line 11.

1. The Applicant’s stepfather, Nico Wouterse, told the Tribunal, under cross-examination, that:

   ·     Mr Wouterse has a father, sister, brother-in-law and other relatives living in the Netherlands;[201] and

   ·     He accepted the proposition that he “will do all [he] could do, as a father, to support [the Applicant] if he had to be returned” and that includes trying to reach out to any contact - family - friends - whatever it may well be, in the Netherlands, to see who might be able to support the Applicant locally. [202]

   [201] Transcript, p 92, lines 34-46, p 93, lines 1-17.

   [202] Transcript, p 94, lines 9-10, 11-14.

   The Respondent’s written submissions

2. In its SFIC, the Respondent acknowledges that although the Applicant is likely to face some initial difficulty in re-establishing himself in the Netherlands due to his residence in Australia, the Respondent contends that, at most, the impediments would be minimal and short-term. The Respondent contends that the Applicant is aged in his mid-30s, has worked in Australia in varied roles (cook, car detailer and maintenance officer) and so should be able to find similar employment. The Respondent further submits that the Applicant should not be any significant linguistic hurdles for him to overcome because publicly available information indicates that English is widely spoken in the Netherlands. The Respondent’s position is that the Applicant has also lived in the Netherlands for approximately eight of his childhood years so that country cannot be said to be unfamiliar to him. As a citizen of the Netherlands, he has the same access to any social, medical and economic support as other citizens should he require those services. Accordingly, the Respondent submits that this consideration should be given limited weight and is not outweighed by the primary considerations weighing heavily against. [203]

   [203] R2, pp 17-18, para [52]-[56].

   Consideration

3. Sub-paragraph 9.2(1)(a): the Applicant is 36 years of age. The evidence before the Tribunal indicates that the Applicant has some recent non-serious medical issues (with his back) but there isn’t medical evidence to say that these issues would be an impediment to removal.[204] On the materials provided, I do not see that there is any significant impediment in establishing himself and maintaining basic living standards in terms of seeking employment. On the proviso that any of the Applicant’s medical issues can be adequately managed in the Netherlands (noting the comparable levels of healthcare available to the Applicant in a developed country with universal healthcare), there is little to cavil with the proposition (and my finding) that the Applicant’s age and overall state of health do not present themselves as unreasonable impediments to him re-establishing himself in that country.

   [204] A21, p 3, A22.

4. Sub-paragraph 9.2(1)(b): the Applicant was born in the Netherlands and arrived in Australia on a permanent basis in 1999, aged 13 years. He has therefore spent some part of his childhood in the Netherlands. It is thus difficult to accept that the Applicant will be confronted with any insurmountable or significant language (given that English is widely spoken) or cultural barries were he returned to that country. I am therefore not of the view that the Applicant would face any significant or substantial language or cultural barriers impeding his return and re-settlement the Netherlands.   

5. Sub-paragraph 9.2(1)(c): I have earlier found that the Applicant’s age and state of health do not present any insurmountable or significant impediment(s) upon return and resettlement in the Netherlands, During the hearing, little or nothing was raised by the Applicant to rebut the presumption that the Netherlands is a country that would be able to provide a comparable level of publicly available health care. The Applicant has a number of family members living in the Netherlands, with whom the Applicant’s mother and step-father are in contact. The Applicant’s step-father has also indicated that he, “will do all [he] could do, as a father, to support [the Applicant] if he had to be returned” and that includes trying to reach out to any contact - family - friends - whatever it may well be, in the Netherlands, to see who might be able to support the Applicant locally.[205]     

   [205] Transcript, p 94, lines 9-10, 11-14.

6. Overall, I am of the view (and find) that this Other Consideration (b) confers a moderate, but not determinative, amount of weight in favour of revocation of the delegates decision under review.

   Other consideration (c): Impact on victims

7. Paragraph 9.3(1) state that decision-makers must consider the impact of a s 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and family member of the victim or victims, where information, in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.

8. The Applicant says that he has the support of Victim 2 to stay in Australia.[206] The Respondent contends that (footnotes omitted):

   “In relation to paragraph 9.3 of Direction 90, the [Respondent] notes the evidence from the applicant’s victim in the statements dated 14 April 2022, and 23 June 2022 from [Victim 2] – the victim of the applicant’s offending which resulted in the serious convictions on 27 August 2020.

   Despite [Victim 2] claims that her children ‘deserve to know and have their father in their life’ and that it would be hard for [C3, C4 & C5] who will one day be man’ to grow up without a father, [the Respondent] contends that her evidence should be viewed cautiously in circumstances where [Victim 2] is the victim of family violence perpetrated by the applicant…[the Respondent] submits that this consideration is, at best, neutral.”[207]

   [206] Transcript, p 110, lines 24-39,p 130, lines 16-18, A12, A13.

   [207] R1, p 18, para [57]-[59].

9. The impact on victims was further addressed in closing submission. The Respondent submitted that:

   “the Tribunal had the benefit of hearing from [Victim 2], and despite what the Applicant urged upon the Tribunal about the support, in my submission, it’s not support as a victim. [Victim 2]’s evidence does not say, “As a victim, as a domestic violence victim and someone who was raped by this individual, I want him to stay.”  What the evidence is, in essence, is it goes to the best interests of minor children as opposed to her as the victim.  That’s, in my submission, the correct way to characterise that evidence.”[208]

   [208] Transcript, p 128, lines 31-43.

10. The Applicant’s response to the Respondent was to say, “I do feel like [the Respondent] is downplaying the support that [Victim 2] is giving me.  And I think that needs to be taken into account as well.[209]

    [209] Transcript, p 130, lines 31-32.

11. The case law indicates that I may have regard to a statement from a victim speaking favourably about the Applicant remaining in Australia.[210] However, in this case, in circumstances where, as submitted above, there is a risk that the Applicant will re-offend and commit family violence against Victim 2, and she does not appear to appreciate the risk or acknowledge the Applicant’s denial of the serious offending, I prefer the Respondent’s submission (and find) that limited weight can be placed on Victim 2’s evidence in regard.[211]  Overall, I find that this consideration is, at best, of neutral weight.

    [210] PGDX and Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235.

    [211] Ali and Minister for Home Affairs (Migration) [2018] AATA 2512 at [135]-[140]; HMFZ and Minister for Home Affairs (Migration) [2018] AATA 3861 at [106]-[110]

    Other Consideration (d): Links to the Australian Community

12. Paragraph 9.4 of the Direction requires that decision-makers must have regard to an Applicant’s links to the Australian community. There are two factors which I must consider in determining the level of weight allocable to Other Consideration (d). They comprise: (1) the strength, nature and duration of ties to Australia; and (2) the impact on Australian business interests if he cannot remain here.

13. In relation to (1) - I find that, on the materials and evidence before me, that the strength, nature, and duration of the Applicant’s ties to his family members, friends and others (such as Victims 1 and 2) in Australia carries a strong but not determinative, level of weight in favour of revocation. The Applicant has lived in Australia for 28 years having initially arrived as a two year old and returned as a 13 year old. He started committing offences around 10 years after he moved to Australia on a permanent basis.   

14. In relation to (2) –I am unable to see material or other evidence before me that a decision not to revoke the Applicant’s visa cancellation would significantly compromise the delivery of a major project or important services to Australia. I find that no weight attaches to this category.

    Findings: Other Considerations

15. I now summarise the respective weights I have allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:

    (a)  International non-refoulement obligations: not relevant;

    (b)  Extent of impediments if removed: moderate, but not determinative measure of weight in favour of revocation;

    (c)   Impact on victims: neutral weight; and

    (d)  Links to the Australian community: carries a strong but not determinative, level of weight in favour of revocation.

    Findings: Other Considerations

16. I now summarise the respective weights I have allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:

    (a)  International non-refoulement obligations: not relevant;

    (b)  Extent of impediments if removed: moderate, but not determinative measure of weight in favour of revocation;

    (c)   Impact on victims: neutral weight; and

    (d)  Links to the Australian community: carries a strong but not determinative, level of weight in favour of revocation.

    Conclusion

    Is there another reason to revoke the cancellation of the Applicant’s visa?

17. Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.

18. In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:

    • Primary Consideration 1: carries a very heavy level of weight against revocation;
    • Primary Consideration 2: carries a very heavy level of weight against revocation;
    •  Primary Consideration 3: carries a slightly but not determinative level of weight in favour of revocation;
    • Primary Consideration 4: carries a very heavy level of weight against revocation;
    • I have outlined the weight attributable to the Other Considerations. I am of the view (and I find) that the combined weights I have allocated to each of Primary Considerations 1, 2 and 4 are sufficient to determinatively outweigh the combined weight I have allocated to Primary Consideration 3 and Other Considerations (b) and (d), respectively; and
    • A holistic view of the considerations in the Direction therefore favours the non-revocation of the decision to cancel the Applicant’s visa.

19. Consequently, I cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.

    DECISION

20. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 8 June 2022 to not revoke the mandatory cancellation of the Applicant’s visa.

I certify that the preceding 196 (one hundred and ninety-six) paragraphs are a true copy of the reasons for the decision herein of Member Lee Benjamin

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

Associate

Dated: 7 November 2022

Date(s) of hearing:

16 and 17 August 2022

Applicant:

In person

Solicitors for the Respondent:

Mr Matthew Hawker

Sparke Helmore Lawyers

ANNEXURE A - EXHIBIT LIST

EXHIBIT	PARTY	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
R1	R	G Documents (G1-G32, pages 1-304)	Various	21 June 2022
R2	R	Respondent’s SFIC	1 August 2022	1 August 2022
A3	A	Applicant’s SFIC (pages 1-7)	Undated	15 July 2022
A4	A	Letter of Support of Ivy (3 pages)	8 July 2022	15 July 2022
A5	A	Further Letter of Support of Ivy  (2 pages)	8 July 2022	15 July 2022
A6	A	Letter of Support of Nadia (1 page)	3 July 2022	15 July 2022
A7	A	Further Letter of Support of Nadia (1 page)	10 July 2022	15 July 2022
A8	A	Letter of Support of Joshua (1 page)	11 July 2022	15 July 2022
A9	A	Letter of Support of Leon (1 page)	3 July 2022	15 July 2022
A10	A	Further Letter of Support of Leon (1 page)	10 July 2022	15 July 2022
A11	A	Letter of Support of Nico (1 page)	Undated	15 July 2022
A12	A	Letter of Support of [Victim 2] (1 page)	14 April 2022	15 July 2022
A13	A	Further Letter of Support of [Victim 2] (1 page)	23 June 2022	15 July 2022
A14	A	Letter of Support of Yvonne (1 page)	Undated	15 July 2022
A15	A	Letter of Support of Takiddo (1 page)	Undated	19 July 2022
A16	A	Documents RE courses completed whilst in detention (5 pages)	Various	1 August 2022
A17	A	Documents RE self-help courses (3 pages)	Various	1 August 2022
A18	A	Letter of Attendance at Relationships Australia (1 page)	Various	1 August 2022
A19	A	Submissions on Parole Order	Various	3 August 2022
A20	A	Statement Addressing Respondent’s Contentions (7 pages)	Various	11 August 2022
A21	A	Submission – The Consequences of Fatherlessness (4 pages)	Undated	11 August 2022
A22	A	Medical record (1 page)	5 August 2022	11 August 2022
A23	A	Submission – My Future Plan (3 pages)	Undated	11 August 2022
A24	R	Extract of Documents Produced Under Summons by Cairns District Court (20 pages)	Various	11 August 2022