Kim and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) - [2023] AATA 3212

Kim and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 3212 (12 October 2023)
Division:                  GENERAL DIVISION
File Number(s):2023/5535
Re:Eun Il Kim
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Antoinette Younes

Date: 12 October 2023
Place:Sydney

The Tribunal affirms the decision under review.
....................................[SGD]....................................
Deputy President Antoinette Younes
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 99 – nature and seriousness of offending conduct – protection of the Australian community - conduct engaged in family violence – strength nature and duration of ties to Australia – best interest of minor children in Australia – expectations of the Australian community – impediments to removal – impact on victims – impact on Australian business interests – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 43
Migration Act 1958 (Cth) ss 36, 189, 197C, 198, 499, 501, 501CA
Migration Amendment (Aggregate Sentences) Act 2023 (Cth)
CASES
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
Franklin v Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 18
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs [2020] HCATrans 056
GBV18 v Minister for Home Affairs [2020] FCAFC 17
Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Ibrahim v Minister for Home Affairs [2019] FCAFC 89
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116
Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Nepata v Minister for Home Affairs [2019] FCA 1197
Pearson v Minister for Home Affairs [2022] FCAFC 203
PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
SECONDARY MATERIALS
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Deputy President Antoinette Younes
12 October 2023
BACKGROUND

The Applicant was born in Republic of Korea (South Korea) on 26 December 1984. On 28 March 2012, he came to Australia as the holder of a Working Holiday Visa. In October 2016, he was granted a Class BS Subclass 801 Partner (Residence) visa (Partner visa),[1] on the basis of his marriage to an Australian citizen, Ms Tran. He has a son who is 9 years old.
[1] G23, 204, Ex 4.
The Applicant has subsequently been in further relationships after his divorce.
On the 11 April 2022, the Applicant was convicted in Hornsby Local Court of assault occasioning actual bodily harm (DV) – T2, common assault (DV) – T2, and contravene prohibition/restriction in AVO (Domestic). He was sentenced to an aggregate term of 20 months imprisonment. A severity appeal was heard on 23 June 2022 at Downing Centre District Court. The appeal was upheld, and the sentence varied to an aggregate term of 1 year and 4 months imprisonment.[2] Those convictions triggered the visa cancellation process.
[2] G7, 51-54, Ex 4.
On 26 April 2022 pursuant to s 501CA (3A) of the Migration Act 1958 (Cth) (the Act), a delegate of the Minister cancelled the Applicant’s Partner visa. On 21 May 2022, the Applicant made representations to the Minister requesting revocation of the cancellation decision. On 20 July 2023, the delegate of the Minister issued the Applicant with a notification of a decision not to revoke the visa cancellation.
The Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the decision.
As mentioned by the delegate[3] and in the Respondent’s Statement of Facts, Issues and Contentions (SOFIC),[4] it was considered by the Department of Home Affairs (the Department) that the visa cancellation decision may have been affected by the judgment in Pearson.[5] As such, the Applicant was released from immigration detention on 27 December 2022. However, the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) (the Aggregate Sentences Act) came into effect and confirmed the validity of past cancellation decisions which were impacted by the judgment of Pearson.[6] The judgment of Franklin also confirms validity.[7] Consequently, the Applicant was returned to detention in February 2023.
[3] G5, 20-46, Ex 4.
[4] Ex 2.
[5]Pearson v Minister for Home Affairs [2022] FCAFC 203 (‘Pearson’).
[6]Pearson v Minister for Home Affairs [2022] FCAFC 203.
[7] Franklin v Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 18 (‘Franklin').
On the evidence, the Tribunal is satisfied that the cancellation decision is a valid decision and that the Aggregate Sentences Act makes it clear that an aggregate sentence, imposed for multiple offences, can be relied upon in the assessment as to whether a person has substantial criminal record for the purpose of s 501(7)(c).
LEGISLATION
Section 501(3A) of the Act compels the Respondent to cancel a visa in certain circumstances:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)…; and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record.’
Section 501(7) of the Act provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f)the person has:
(i)been found by a court to not be fit to plead, in relation to an offence; and
(ii)the court has nonetheless found that on the evidence available the person committed the offence; and
(iii)as a result, the person has been detained in a facility or institution.
Section 501CA of the Act applies if the Respondent makes a decision under subsection 501(3A) of the Act to cancel a visa that has been granted to a person.
Section 501CA(4) of the Act confers on the Respondent the discretion to revoke the Mandatory Visa Cancellation Decision under s 501(3A).
Section 501CA(4) provides:
(4) TheMinister 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.
MINISTERIAL DIRECTION NO. 99
The Respondent is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. Except for the Respondent acting personally, the Direction must be applied by all decision-makers, such as the Respondent’s delegates and the Tribunal.[8]
[8] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69 [4].
On 23 January 2023, the Respondent signed Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 99). The Direction commenced on 3 March 2023 and revoked the previous Direction 90.
The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
A decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction identifies the following as primary considerations:
(1)Protection of the Australian community from criminal or other serious conduct;
(2)Whether the conduct engaged in constituted family violence;
(3)The strength, nature and duration of ties to Australia;
(4)The best interests of minor children in Australia; and
(5)Expectations of the Australian community.
Paragraph 9 of the Direction identifies the non-exhaustive list of Other considerations:
a)Legal consequences of the decision;
b)Extent of impediments if removed;
c)Impact on victims; and
d)Impact on Australian business interests.
Paragraph 7(1) provides that, when taking the relevant considerations into account, “information and evidence from independent and authoritative sources should be given appropriate weight.” Paragraph 7(2) provides that primary considerations “should generally be given greater weight than the other considerations.”
MATERIAL BEFORE THE TRIBUNAL
The Tribunal has the following material before it:
·The Applicant’s SOFIC, dated 25 August 2023 (Exhibit 1);
·The Respondent’s SOFIC, dated 15 September 2023 (Exhibit 2);
·Respondent’s Supplementary Documents, filed on 15 September 2023 (Exhibit 3);
·Respondent’s G-Documents (Exhibit 4);
·Applicant’s Tender Bundle, filed on 2 October 2023 (Exhibit 5);
·NSW Police Facts Sheet, filed on 5 October 2023 (Exhibit 6); and
·Post-hearing submissions from both parties.
FINDINGS AND REASONS
The character test is defined in s 501(6) of the Act. It is fair to say that the character test is generally concerned with the protection of the Australian community from the risk of harm. The character test deems persons to be of bad character if they fit any of the criteria listed.
A person does not pass the character test only if one of the paragraphs in s 501(6) applies to that person. In this case, the delegate determined that the Applicant did not meet the character test under s 501(6)(a) because he has a 'substantial criminal record' on the basis of having been sentenced to a term of imprisonment of 12 months or more 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 a Territory.
It is not in dispute that the Applicant does not meet the character test; the Applicant has been sentenced to an aggregate term of 1 year and 4 months imprisonment. As an aggregate sentence of 12 months or more is ‘a term of imprisonment for 12 months or more’ within the meaning of s 501(7)(c) of the Act, the Applicant has a ‘substantial criminal record’ and he does not pass the character test.
The issue before the Tribunal is whether the cancellation of the visa should be revoked.
The purpose of the Direction is to guide decision-makers exercising powers under the Act. Delegates and the Tribunal must generally follow the Minister’s Direction. However, the Direction does not dictate the way in which the discretion is to be exercised, but rather it creates a framework within which the discretion vested in the decision-maker is lawfully exercised. The Direction identifies certain principles which provide a framework within which decision-makers should approach their task.[9] It prescribes relevant considerations which must be taken into account. It provides guidance only as to the manner in which they are to be balanced. The Direction assists decision-makers with a width of discretion that enables them to take into account different circumstances that may arise in order to reach a finding that is fair and rational in all the circumstances, taking into account crucial considerations.[10]
[9] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [80]–[81]. The Court was discussing Direction No 55, but the reasoning applies equally to Direction No 99.
[10] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [83].
The Direction does not determine rules of general application, but gives directions to the decision-maker, including the Tribunal, as to the policy to be applied in the exercise of the discretion conferred on it by s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) in exercising the power conferred by ss 501 and 501CA of the Act. The Direction does not derogate from the Tribunal’s duty to reach the correct or preferable decision in the particular case before it; the Direction has that end as its purpose.[11]
[11] Uelese v Minister for Immigration and Border Protection [2016] FCA 348 [50].
While decision-makers are bound to take into account certain considerations, they are not limited to those set out in the Direction.[12] The Direction specifies the relative, but not the actual, weight to be given to those considerations. To that extent, it imposes requirements on the exercise of the Tribunal’s discretion, but the Tribunal is obliged to examine the merits of the case and decide for itself.[13] The weight to be given to any particular matter is a matter for the decision-maker and cannot be the subject of some formulaic approach.[14] Phrases such as ‘should generally be given greater weight than the other considerations’ and ‘one or more primary considerations may outweigh other primary considerations’ have been interpreted as provisions that are intended to provide guidance to the decision-maker as to how the balancing exercise required by the Direction should be approached. These phrases leave it open to the decision-maker to adopt a different approach in the exercise of discretion in the individual case.[15] It is not the content of the Direction which determines the outcome of the exercise of the discretion, but rather it is the application by a decision-maker to the evidence and material in an individual case.[16]
THE PRIMARY CONSIDERATIONS
[12] GBV18 v Minister for Home Affairs [2020] FCAFC 17.
[13] See Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [21].
[14] Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580 [127].
[15] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [83].
[16] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 [78].
Protection of the Australian community from criminal or other serious conduct
The Direction contemplates that decision-makers should have particular regard to the principle that ‘entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.’[17] It indicates that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.[18]
[17] Direction 99 [8.1(1)].
[18] Direction 99 [8.1(2)].
Whether there is a risk that a person would engage in specified conduct requires an evaluative judgement by the decision-maker. If the decision-maker is so satisfied, they have a discretion to refuse or cancel a visa, or revoke a visa cancellation.[19]
[19] See Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 [2]. The Court considered s 501(1), but the reasoning also applies to ss 501(2) and 501(3A).
The seriousness of the Applicant’s conduct
The Applicant’s criminal history:
The Applicant’s Criminal & Investigation History Information Record from the Republic of Korea dated 11 November 2013, indicates that in Korea, he was found guilty and sentenced for the following offences:
·On 21 October 2011, the Applicant was found guilty of injury, damage to public property, obstruction of justice, with a penalty of 3,000,000KRW.
·On 23 December 2011, the Applicant was found guilty of violation of Road Traffic Act (drunk driving), with a penalty of 2,000,000KRW.[20]
[20] G15, 159, Ex 4.

The Tribunal observes that the Applicant’s recorded offences in the Republic of Korea were not disclosed on his initial visa application to Australia in 2012 under the Working Holiday Program, or on any of his incoming passenger cards from 2012 to 2018.[21] In submissions in support of the request for revocation,[22] and in relation to the non-disclosure of the offences on the incoming passenger card, the Applicant’s representative noted the following:
“…During the 2012 to 2018 period [the Applicant] only ever been fined for these convictions, which include driving offences. He had not expected that the incoming passenger cards had been referring to his driving or property damage offences when they requested that they declare his ‘criminal convictions’ given the prevalence of these offences in the wider community and the fact that he had only been fined for these convictions. This was merely a misunderstanding of the requirements of the sparsely worded incoming passenger card and not a purposeful disregard for Australian law.”[23]
[21] G16-G18, 163-177, Ex 4.
[22] G32, 266-292, Ex 4.
[23] G32, 274, Ex 4.
The Applicant has the following criminal history in Australia:[24]
·On 27 November 2013, the Applicant was convicted in the Perth Magistrates Court for unlicensed vehicle (owner/driver) and was fined $250.
·On 4 February 2014, the Applicant was convicted in the Perth Magistrates Court for no authority to drive - disqualified/suspended and was fined $400.
·On 11 June 2014, the Applicant was convicted in the Perth Magistrates Court for unlicensed Vehicle (owner/driver) and no authority to drive – disqualified/suspended and was fined $250 and $1000 respectively.
·On 6 March 2018, the Applicant was convicted in the Parramatta Local Court for drive with middle range PCA – 1^st off and was fined $800 and was disqualified from driving for 6 months.
·On 3 June 2019, the Applicant was convicted in the Burwood Local Court for common assault- T2 and destroy or damage property >$ 2000 & <=$ 5000 (DV)- T2. The Applicant was sentenced to a 12-month community correction order.
·On 11 April 2022, the Applicant was convicted in the Hornsby Local Court and was sentenced to an aggregate term of imprisonment of 20 months for assault occasioning actual bodily harm (DV)-T2, common assault (DV)-T2 and contravene prohibition/restriction in AVO (domestic). On 23 June 2022, this sentence was reduced on appeal to an aggregate term of imprisonment of 1 year and 4 months with a non-parole period of 7 months.
·On 13 October 2022, the Applicant was convicted in the Parramatta Local Court for assault occasioning actual bodily harm and was sentenced to a term of imprisonment of 10 months. The Applicant’s appeal was dismissed by Parramatta District Court on 13 June 2023.
[24] G6, 51-54, Ex 4.
The evidence before the Tribunal indicates that the Applicant has been convicted of serious and violent offences, involving acts of family violence. Some of the offences were against two former partners, Ms P and Ms K.
In relation to Ms P, on 4 and 5 April 2019, the Applicant pulled Ms P out of his vehicle, causing her to fall backwards (common assault offence).[25] The Applicant entered his vehicle and accelerated at speed towards the front of Ms P’s car colliding with the front. This caused damage to nearly all front panels and fluid to leak from the mechanicals (Intentionally or recklessly destroy and damage property domestic violence related offence).[26]
[25] S43, 280–284, Ex 3.
[26] S43, 280–284, Ex 3.
On 16 November 2020, the Applicant breached an Apprehended Violence Order (AVO) by being with Ms P within 12 hours of consuming alcohol (breach of AVO offence).[27] The Applicant threw his phone at Ms P, which hit her in the head and cut her forehead. That cut bled and it was treated at the hospital and "glued together"' (assault occasioning actual bodily harm offence).[28] The Sentencing Court noted the following:
On 16 November, the accused had consumed alcohol and was with the complainant. Mr Kim has also pleaded guilty to assaulting [Ms P] in the early hours of 16 November, thereby occasioning to her actual bodily harm, in particular by throwing the phone at her which hit her in the head and cut her forehead. That cut bled profusely and it was treated at the hospital and "Glued together." When [Ms P] returned from the hospital, there was a further altercation and the defendant punched Ms Kim in the face and also in the ribs.
…
I note in particular that the plea was entered after Browne v Dunn issues were put to [Ms P], and that is that the assaults did not happen, and that in essence she was not telling the truth. The offending is particularly serious. It is against an order which specifically protected [Ms P] from being assaulted; it was committed during a time when Mr Kim was affected by alcohol and should not have been with her.
It occurred in the home of [Ms P] and the defendant, a place where [Ms P] was entitled to feel safe. There are children in the home, although it is not the prosecution case that the offence occurred in the presence of the children; they were just present in the home but in another location. The manner in which the assault occurred, particularly sequence 1 where a phone was thrown at her head and collided with it, causing the actual bodily harm, is a serious offence and in my view falls at least at the midrange of seriousness for those sort of offences, possibly just above the midrange.
In relation to the assault on [Ms P] after [Ms P] returned from hospital, having been treated for the injury to her head, the assault, the punch to the face and the ribs falls at least at the midrange, if not above the midrange of seriousness, for the types of assaults that this Court sees, particularly when that assault occurred during a further argument which occurred after her return from hospital, where she received treatment for the injury that was occasioned in the first assault.
Because of the seriousness of the offending and the fact that it occurred against an order protecting [Ms P], I have taken into account the requirements of s 14(4) of the Crimes (Domestic and Personal 5 Violence) Act. The Court does have discretion, however I will not exercise that discretion today. There is no other sentence available to this Court, either by means of a community based order, and by that I mean in direct alternative to a custodial sentence in the form of a community corrections order, or a CRO, or even a fine that would adequately address the criminality here.[29]
[27] G13, 127, Ex 4.
[28] G13, 127, Ex 4.
[29] G13, 127-128, Ex 4.
In relation to Ms K, on 26 December 2021, the Applicant stomped on Ms K's head while she was on the floor causing actual bodily harm to her by way of injury to her right temple, that involved red markings and a bruise (assault occasioning actual bodily harm offence).[30] The Sentencing Court noted the following:
[30] G14, 135-138, Ex 4.
In terms of the causation between the stomping and the injury to [Ms K]'s head that is a matter which I have deliberated upon over the last couple of days. The photograph of [Ms K]'s head in my view is quite significant. This is exhibit 10. It is a series of photographs that showed the injury to her right temple. It is above the eyebrow line, but not on the forehead. More between the forehead and the area above the ear. It is quite a visible injury involving red markings and a bruise. There are also quite clear injuries to her neck and I note the medical evidence - which is unchallenged – that hose injuries are consistent with trauma or blunt force trauma.
…
That assault, in my view, was a single criminal transaction. It caused [Ms K] to end up on the floor. In my view the notion or the hypothesis that she has fallen over onto the floor is not a rational or reasonable hypothesis based on all the evidence in this case. In my view I am satisfied beyond reasonable doubt that she ended up on the floor as a consequence of the assault that was being inflicted upon her criminal transaction of the accused, that he inflicted that injury on the temple region of [Ms K]’s head. It is entirely consistent with her head coming into contact with the floor in the position in which she was lying, as observed by Ms Lee. I am satisfied that her head came into contact with the floor as a direct consequence of the assault by the accused that I have described.
In terms of the suggestion that injury to her temple has been caused by other incidents that evening, including the scuffle between the men that came back inside the house, or during the throwing of items which was observed by Ms Lee, or through any other unidentified incident. I am satisfied beyond reasonable doubt that those hypotheses are neither reasonable nor rational hypotheses and they have been excluded by the prosecution. They are examples of nothing other than mere speculative hypotheses.
This injury, in my view, and I am satisfied beyond reasonable doubt, was caused by the assault of the accused on [Ms K] and I FIND HIM GUILTY OF ASSAULT OCCASIONING ACTUAL BODILY HARM.
In terms of the choking incident I note a number of matters. One is that there was no direct observation of the alleged choking or strangulation. I note that there is only hearsay evidence from the victim that she had been strangled. I note her level of blood alcohol intoxication of being around 0.02. That is something I have considered in relation to the reliability of all her representations.
Given the injuries around her neck I think I could be satisfied that she was choked or strangled by the accused. However I really think there is a complete absence of evidence that that act of strangulation or choking caused her to be unconscious, and I have a reasonable doubt about that element of the offence. I have to find the accused not guilty even though I am satisfied that he did apply force to her neck of some sort. There is no other rational explanation for how those injuries became visible on her neck.
In relation to the injury to her head, her temple area, I note the evidence of the police officer who attended the scene and saw the victim lying in the bed. His name was Constable Colero and when he saw the victim lying down in bed unconscious he saw the accused cradling her head, crying, and he thought that the victim was dead. He then described how over the next short period of time he saw this red swelling sort of development quite dramatically on the top right part of her temple, and in my view that is entirely consistent with the findings I have made in relation to how that injury was obtained. That is, as a direct consequence of the assault of the accused on the victim of which Ms Lee saw the tail-end of when she saw the stomping.
…
The objective criminality of the offence in my view is reasonably serious in that it involves the application of a foot to the head of a defenceless woman who is highly vulnerable. She was either, in my view it seemed as though she was unable to defend herself from on the ground and he stomped on her head. It is quite lucky that she is alive. It is an atrocious and shocking act that would really cause the general community to be horrified. I note the size difference between Mr Kim and his partner. I am somewhat concerned that they are still in a domestic relationship. I cannot make moral judgments about that but clearly there is some risk of reoffending and that there needs to be some protection for the victim going forward. However I cannot impose any sort of preventive detention. I can only impose a term of imprisonment that reflects the gravity of the offending on the subjective case… His prospects of rehabilitation are guarded.[31]
[31] G14, 147, Ex 4.
The Tribunal notes that the Applicant was on bail at the time of the offences committed against Ms P, which the Court found to be an aggravating factor.[32]
[32] G14, 147, Ex 4.
In submissions to support his request for revocation dated 24 May 2022,[33] the following was noted:
“[The Applicant] recognises the seriousness of his conduct and the harm it has had on the victims of his behaviour. He understands that it is ultimately a privilege to remain in Australia, and it is his responsibility to abide by the laws of Australia to maintain that privilege.
…
[The Applicant] acknowledges that his family violence conduct is viewed very seriously by the Australian community and expresses remorse for his previous behaviour.
…
The offences that [he] has committed would not be described as frequent…[he] has never provided false and misleading information to the Department of Home Affairs (‘the Department’). He has always disclosed previous criminal offending in relation to his dealings with the Department. He is remorseful of his past behaviour and is willing to cooperate with the Department in relation to any relevant investigations into his criminal record.
[The Applicant] understands that the Australian community will not tolerate those who present risks of harming members of the community. He is remorseful of his behaviour and will seek to undertake rehabilitative courses for his anger issues.
He will also be consulting with a psychologist on the matter and a report on their session(s) will be provided soonest it becomes available. It has been understandably difficult to arrange for psychology sessions while [the Applicant] is in prison.” [34]
[33] G23, 204-210, Ex 4.
[34] G23, 205-206, Ex 4.
In the Applicant’s SOFIC,[35] the following matters were noted:
·It is acknowledged that soon after his arrival in March 2012, the Applicant commenced offending in Australia in or around November 2013, but that the offences committed between 2013-2018 were all traffic related offences which were dealt with by way of fines and disqualification periods.
·Between 2019-2022, the Applicant had “crime free” years, but from 2019, he commenced committing more serious offences. The Applicant’s offending has increased in seriousness over time.
·The Applicant has a criminal record in Republic of Korea. He committed offences of damage to public property and drink driving. These offences were disclosed on his initial Working Holiday visa application.[36]
·The Applicant has been found guilty of 7 family violence related offences. The Tribunal should regard this offending as very serious.
·The Applicant did provide false information on his incoming passenger card; he ticked that he did not have a criminal record.
·The Applicant has current proceedings on foot that are not reflected in his current criminal record.
[35] Ex 1.
[36] This is incorrect; the Applicant did not disclose this information in the visa application.
The Tribunal considers acts of violence of any degree to be serious and that the imposition of a custodial term upon an offender is considered to be the last resort in the sentencing hierarchy. The custodial sentences reflect the seriousness of the Applicant’s offending and the Applicant’s limited positive response to non-custodial sentences. The Applicant’s offending is not isolated and he has been convicted of a number of violent offences in Australia. He has also been convicted in 2019 of destroy or damage property, in 2018 of drive with middle range PCA and in 2014 of unlicensed vehicle (owner/driver) and two counts of no authority to drive – disqualified/suspended.
Moreover, the Applicant’s driving records show that in 2017, the Applicant was fined on two occasions for exceeding the speed limit by not more than 10 kilometres an hour.[37] In 2017, he was fined $330 for not keeping left on a multi-laned road. In 2019, he was fined $275 for exceeding the speed limit by more than 10 kilometres an hour but not more than 20 kilometres an hour. In 2020, he was fined $349 for failing to give way. In 2021, he was fined $285 for exceeding the speed limit by more than 10 kilometres an hour but not more than 20 kilometres an hour.
[37] S9, 43, Ex 3.
As raised during the hearing, the Tribunal considers driving offences to be serious, given the potential adverse outcome to the driver as well as other road users. Driving under the influence of alcohol and being unlicensed represent a significant degree of disregard for traffic laws and rules.
In documentary evidence, the Applicant and Ms K questioned the Applicant's conviction for assault occasioning actual bodily harm that occurred on 26 December 2021.[38] In the course of the hearing, the Applicant gave evidence that he only has partial memories of that day because he was heavily intoxicated. Although he remembered arguing with Ms K, he stated that he did not remember assaulting or choking her. He however admitted to committing the offence because he is responsible for things even when intoxicated. In post-hearing submissions dated 9 October 2023, the Respondent contended that the Applicant's evidence is inconsistent as to whether he accepts responsibility for his offending against Ms K, and that he “relies on his heavy intoxication to deny any memory of the offence and, ultimately, to avoid taking full responsibility for committing the offence.[39] The Tribunal is of the view that the Applicant’s ‘denial’ could be due to a number of factors, including not taking responsibility. In any event, the Applicant has been convicted and the conviction appeal with respect to this offence was dismissed by Parramatta District Court on 13 June 2023.[40] On the evidence, the Tribunal is satisfied that the Applicant has not discharged the heavy onus required to prove the facts which depart from those upon which a conviction is based.[41]
[38] G32, 266–292; G34, 296–300; G40, 316–333, Ex 4.
[39] Respondent’s Closing Written Submissions dated 9 October 2023 [10].
[40] G12, 67, Ex 4; S23, 199, Ex 3.
[41] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 [71] per McKerracher J.
The Tribunal is satisfied that the evidence demonstrates that the Applicant's repeated offending is serious, involving repeated domestic violence offending, which, and as mentioned in the Respondents’ SOFIC, “has involved a significant use of police and court resources.”[42] Moreover, the Applicant has committed offences in the Republic of Korea of injury, damage to public property, obstruction of justice and violation of Road Traffic Act (drunk driving), for which he was fined.[43]
[42] Ex 2 [30].
[43] G15, 159–160, Ex 4.
As to the provision of false or misleading information to the Department, by failing to disclose his criminal history in his visa application and incoming passenger cards,[44] and incoming passenger cards, the Respondent contended in post-hearing submissions that the Applicant’s explanations that he “misunderstood the question” and “thought the question was asking the criminal history as anything involving imprisonment” are insufficient to explain why he provided false or misleading information to the Department and should be given no weight. Given the cultural and language differences, and although the Tribunal has some doubt, the Tribunal accepts the Applicant’s explanations and oral evidence as plausible that this was essentially due to a misunderstanding. As such, the Tribunal has not used this aspect in an adverse manner to the Applicant.
[44] G16, 167, Ex 4.
In relation to the Applicant's pending further charges on 6 June 2023, the Tribunal cannot make any findings as to the Applicant's innocence or guilt in relation to those charges. The Tribunal has not used the charges in an adverse manner to the Applicant.
For those reasons and on balance, the Tribunal is satisfied that the nature and seriousness of the Applicant’s criminal offending weigh heavily against revocation.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The Direction states that decision-makers must have regard to the following considerations cumulatively:
a)    the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)    the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the noncitizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
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 Direction contemplates that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.[45] In some circumstances, it may be permissible to conclude that any type of continued offending increases the risk of further violent offending.[46] The Tribunal needs to consider the likelihood and consequences of further offending.[47]
[45] Direction 99 [8.1.2(1)].
[46] Nepata v Minister for Home Affairs [2019] FCA 1197 [30].
[47] Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 [95].
In the request for revocation dated 31 March 2023 and in dealing with the likelihood of recidivism, the Applicant’s representative made the following submissions:[48]
[48] G32, 266-292, Ex 4.
“The first offence: The offending behaviour had occurred in June 2019 and against the Applicant’s first girlfriend after his divorce, [Ms P]. [Ms P] and the Applicant had been in a relationship for approximately three years. Throughout their three-year relationship, [Ms P] had been psychologically abusive towards the Applicant including monitoring his social activities, secretly checking his phone, quarrelling when the Applicant spent time with other people, and refusing to accept it when the Applicant tried to end their relationship multiple times throughout their relationship.
We note that the Community Corrections Order issued in relation to this conviction was not breached. He had also been issued an Apprehended Domestic Violence Order (‘ADVO’) in relation to this that prevented him from approaching [Ms P] within 12 hours of consuming alcohol.
The second offence: This incident occurred on 15 November 2020, after alcohol consumption by [the Applicant]. Following an argument between the couple, the Applicant had physically assaulted [Ms P]. The couple then officially ended their relationship the following month and [Ms P] had reported the incident the following year in February 2021.
The Applicant takes full responsibility for all his actions against [Ms. P]. He recognises that his actions had triggered by his excessive alcohol consumption and his unhealthy romantic relationship at the time, but he acknowledges that it was ultimately his responsibility to ensure that he never resorted to violence in his actions.
The third offence: On 26 December 2021, the Applicant had hosted a party at his and his second girlfriend’s, [Ms K], shared residence. During the party, a quarrel had broken out between the men, including the Applicant, resulting in a physical skirmish. The Applicant admits that he had consumed alcohol in contravention of his ADVO at this party, however, denies that he had assaulted [Ms K] at any point during the night, a view that is supported by {Ms K}. This was also substantiated in the statement of another of the Applicant’s friends who was at the party.
The Applicant had found out after his arrest that a mutual friend at the party, a Ms. Lee, believed that the Applicant had assaulted [Ms K] due to sighting a bruise on her neck. [Ms K] states that she had actually sustained from a neck massage device that she frequently used.
The Applicant’s conviction is currently on appeal, as his criminal law representative is of the opinion that the magistrate had made a number of legal errors in his judgement and that the police are actually unable to prove that any actual bodily harm had been caused to [Ms K]…
Given the circumstances of the three convictions, the Applicant submits that he is unlikely to reoffend. This is a view that has been supported by the Applicant’s psychologist, as she has found that he exhibits none of the ‘characterological violence’ indicators (at page 13 of the report) and none of the ‘high risk factors of violent of criminal behaviour, and no indicative patterns of any’.
The Applicant acknowledges his remorse and regret for his offending and acknowledges that his actions had been brought about largely by his own unhealthy coping mechanisms for emotional distress and a lack of conflict resolution strategies, which all culminated in an over-reliance on alcohol and binge-drinking. The following has been extracted from his personal statement.
“I have accepted that alcohol is a poison that my body cannot handle and it will trigger another out of control incidents [sic]. I will do whatever it takes to not to drink alcohol again. Currently in Yongah Hill Immigration Detention Centre, I have continued to try to improve myself through targeted educational programs.”
This has also been recognised by the sentencing judge for his second offence:
“I have also found that he will require assistance in his rehabilitation, particularly in relation to his alcohol abuse. Whilst he may not admit it, it is clear from the facts of this matter that [the Applicant] has an alcohol problem.”
However, the Applicant does put to the delegate that his over-reliance on alcohol was exacerbated by a unique set of circumstances that had existed only at the time of the offending, that is, he was being psychologically abused by [Ms P] and he was undergoing criminal prosecution. This is supported by the psychologist’s findings which states:
“From this, it is evident that Mr. Kim has externalized his actions to be triggered by [Ms P]. Additionally, it is apparent that Mr. Kim used alcohol as a coping mechanism, as well as the identified trigger for the heightened propensity to his outburst described in the incident that occurred on 15 November 2020.”"
The representative referred to the Applicant’s abusive relationship with Ms P and noted that the Applicant does not raise the abusive relationship with Ms P as an “excuse” but rather as an explanation of what had been the source of his problematic behaviours and as a starting point for his own self-reflection on how to ensure that such behaviour will not occur again. The representative contended that the Applicant would ensure that such an incident will not occur again in the future by “ensuring that he only engages in more loving and respectful romantic relationships,”[49] such as the one he is currently re-instigating with Ms Tran. The representative noted that during their 5-year relationship, the Applicant had never been physically or otherwise violent towards Ms Tran, despite having disagreements as they were divorcing.
[49] G32, 273, Ex 4.
The Applicant’s representative contended that:
“The trauma of imprisonment and detention, as well as the time that the Applicant has spent in jail, has prompted a serious of period of self-reflection on his past behaviour. The Applicant now accepts that he has issues with alcohol and has spoken to an officer at the Burwood parole office about enrolling him in educational programs targeting alcohol dependency…We hope the delegate appreciates the fact that it has been difficult for the Applicant to access these programs due to his constant movement...”[50]
[50] G32, 273, Ex 4.
In his Statement dated 30 March 2023,[51] the Applicant outlined steps he had taken to address his issues with alcohol misuse. He offered the following apology:
“I'm so sorry, ashamed and regretful that I've decided to make a difference. Nothing happens if you don't drink. My problem started with alcohol, and violence is unacceptable for any reason because of alcohol. Lastly, I apologise unreservedly to all the harm that I have caused to all the victims. I am sincerely sorry for all my offending.”[52]
[51] G34, 296-298, Ex 4.
[52] G34, 298, Ex 4.
In his Statutory Declaration dated 27 September 2023,[53] the Applicant discussed his alcohol “problem” and his understanding of its seriousness, including the pain and damage that it has caused not “only [to his] life but also others’ lives.”’ He outlined his involvement in drug and alcohol counselling, online courses, and his plans to continue with the Smart Recovery program and attend rehabilitation programs. At the hearing, the Applicant accepted that alcohol is a problem and that he was aware of its seriousness.
[53] Ex 5, 2-10.
In support for the request for revocation, the Applicant provided a report from Ms S Huang, Clinical Counsellor/Psychotherapist dated 27 September 2022.[54] Relevantly, Ms Huang reported that the Applicant does not demonstrate “high risk factors of violent or criminal behaviour, and no indicative patterns of any.”[55] Ms Huang expressed the view that Ms P was psychologically and emotionally abusive to the Applicant and that this significantly impacted the Applicant’s mindset and contributed to his offending behaviour.[56] The Respondent contended, and the Tribunal agrees, that limited weight should be attributed to this psychological report, noting that Ms Huang did not have regard to the Applicant's full criminal record,[57] and did not take into account the Applicant's conviction for his most recent offending against Ms K and rather relies on the Applicant's self-reporting.
[54] G40, 316-333, Ex 4.
[55] G40, 329, Ex 4.
[56] G40, 330, Ex 4.
[57] G40, 317, Ex 4.
In his SOFIC, the Applicant conceded that this consideration weighs against revocation of the cancellation decision.[58]
[58] Ex 1 [20].
However, in post-hearing submissions filed on 9 October 2023, the Applicant’s representative contended that it is not the case that the Applicant represents an unacceptable risk to the Australian community, or that the risk of reoffending is very real and an ongoing risk. The representative contended that:
·The Applicant does not have a long history of violent offending in that all offending occurred between April 2019 and December 2021 involving three separate incidents leading to six charges. The Applicant has no domestic violence issues/reports against his ex-partner, Ms Tran.
·Part of the offending against Ms P occurred during COVID-19. Alcohol has been a major contributing factor in the offending and the Applicant acknowledges he has an alcohol problem, but he is not blaming alcohol for the offending. The Applicant demonstrated sincere emotions in the course of the hearing and he was a witness of truth. He displayed remorse and insight into his behaviour throughout the hearing and in his statements. At the hearing and on several occasions, the Applicant expressed remorse to the victims of his crimes.
·The Applicant has actively participated in rehabilitation made available to him during his incarceration. His limited fluency in English has made it more difficult to access assistance. At Yongah Hill Detention Centre, he accessed drug support with the help of interpreting services. He had sessions with his Counsellor, Sunny, which were limited because the Applicant was in a controlled environment. The Applicant accessed the Smart Recovery program and also made several requests for assistance. He completed Universal Class courses of Anger Management, Domestic Violence and Drug and Alcohol Abuse.[59] He acknowledges that his future includes help for his alcohol misuse.
·The Applicant has a disincentive to reoffend because if he were to reoffend, he would face the “real prospect” of losing his entire family permanently. A prospect he has never faced before. The Applicant has never been warned that his visa would be cancelled. This is his first visa cancellation. He has never been given a second chance.
·The Applicant was released on parole at the earliest possible date on 10 February 2023. He was compliant with his parole conditions and reported weekly for the first six weeks after his release. He was released back into the community following Pearson on the 27 December 2022 until 17 February 2023. He was returned to detention without any incidents, and there has been no incidents in prison or detention. He has been a model inmate and detainee.
[59] Ex 5, 39-41.
In post-hearing submissions dated 9 October 2023, the Respondent contended that:
·Despite the Applicant’s acceptance that he is addicted to alcohol, and has anger management issues, the Applicant’s insight into these issues, his involvement and commitment to rehabilitation were vague and should be given limited weight.
·The Applicant engaged in six weeks of alcohol counselling with his parole officer but conceded that his meetings with his parole officer were primarily to ensure he was adhering to his bail conditions and that he did not learn anything about his alcohol issues during those meetings.
·The Applicant accepted that he had experienced issues with alcohol consumption as early as 2011 when he was convicted of drinking driving in Republic of Korea; however, he did not become aware that it was an issue until 2019 following his offences against Ms P. The Applicant accepted that he did not engage in substantive alcohol counselling until April 2023 when he contacted the Alcohol Drug Support Line and had two 1-hour sessions with an alcohol counsellor named Sunny. The Applicant provided counselling notes, which appear to be handwritten notes by the Applicant, summarising his sessions with Sunny.[60] The Tribunal agrees with the submissions that the notes do not confirm that the Applicant participated in sessions with Sunny and, even if he did, they are not an objective reflection of what occurred in those sessions.
·The Applicant’s evidence states that he engaged in two fortnightly sessions of the Smart Recovery program, but he was unable to recall when he engaged in those sessions, to explain the nature of those sessions and what he learned. The Tribunal accepts that the Applicant has not provided substantive evidence of his participation in this program and that the only substantive evidence in support of the Applicant undertaking rehabilitation for alcohol misuse was a certificate that he had completed a Drug and Alcohol Abuse program on 17 August 2023.[61]
·The Applicant claimed that has not had a drink since 26 December 2021. In cross examination, he was taken to two photographs that show him sitting at a dinner table with what appear to be alcohol beverages in front of him on two occasions after that date in Perth.[62] The Applicant accepted that the drinks were alcoholic, but he denied that he was drinking. The Tribunal is not persuaded by this explanation and is of the view that the Applicant was not truthful about his drinking.
·The Applicant has provided a certificate of courses, the Domestic Violence 101 on 15 August 2023 and Anger Management certificate on 3 September 2023 to support his rehabilitation efforts.[63]
·The Applicant's engagement in rehabilitation has been limited and, noting the recency of his engagement, tends to indicate that he only engaged in rehabilitation because he believed it would support his case before the Tribunal. The Tribunal is of the view that there is some merit to those submissions.
·The Applicant will have prosocial support from his current partner, Ms Tran, and various friends and colleagues upon his release. However, limited weight should be given to the Applicant's various character references because they fail to grapple directly with the serious nature of his offending and therefore should be attributed limited weight. The Tribunal should give little to no weight to Ms Tran's personal reference in circumstances where she gave evidence that she had no contact with the Applicant between mid-2018 and 2022. She knew he had been convicted of one domestic violence related offence against Ms P but in cross examination, she was unable to explain the facts of that offence. She did not know that the Applicant had been convicted of any other domestic violence offence. However, after the Applicant's criminal history was set out for her, she appeared to change her evidence and confirmed that the Applicant told her about his offending history in a letter. The letter was not made available to the Tribunal. She did not believe that the Applicant could hurt a woman as she states that he is frightened of cockroaches and rats so how can he hurt anyone.
[60] Ex 5.
[61] Ex 5, 41.
[62] Ex 4, 382–383.
[63] Ex 5, 39-40.
The Tribunal acknowledges the Applicant’s remorse, acceptance of wrongdoing and the adverse consequences of alcohol misuse, attempts at rehabilitation, and good behaviour in prison and detention. The Respondent argues that the Applicant's offences and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated is unacceptable.[64] The Respondent submitted that given the Applicant's overall history and his limited rehabilitation, there is a significant risk of reoffending and that the risk is unacceptable, and as such the protection of community weighs heavily against revocation. The Respondent referred to Tanielu[65] and contended that any reoffending would have the potential to cause physical or psychological harm to members of the Australian community, especially women. The Respondent contended that there is a “very real ongoing risk” that the Applicant would reoffend considering his criminal history, the number of occasions he had offended and the nature of the offending including domestic violence offending that involved two different partners, being Ms P and Ms K.[66]
[64] Ex 2 [35].
[65] Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 [95] per Mortimer J (‘Tanielu’).
[66] Ex 2 [36].
The Tribunal acknowledges that past offending may not be a reliable indicator of future conduct, however that does not mean that it is irrelevant. The Tribunal is of the view that predicting future conduct has limitations, as there could be many factors and uncertainties involved. The Tribunal is satisfied that the repeated, and violent nature of the Applicant's criminal history, are relevant to the likelihood of further offending.
The Applicant was released from immigration detention on 27 December 2022.[67] He was charged on 6 June 2023 with offences which are alleged to have occurred on 8 January 2023,[68] namely administer poison etc intend injure/cause distress/pain – T1 and give etc drink/food contain intoxicating substance to harm. As discussed during the hearing, it is not the Tribunal’s task to determine guilt or innocence, as that is a matter for the Courts. The Tribunal notes the Applicant’s evidence that he is “innocent.”
[67] S50, 296, Ex 3.
[68] S4, 13, Ex 3.
The Tribunal has not used the charges of 8 January 2023 in an adverse manner to the Applicant, and as such, rejects the Respondent’s submissions that the further charges demonstrate that the Applicant is at high risk of reoffending upon his release into the community. However, the Tribunal takes into account that the Applicant has a history of breaching judicial orders, including AVOs, and the conditions of his bail.[69] On 16 November 2020, the Applicant breached a condition of his AVO by being in the presence of Ms P (the protected person) within 12 hours of consuming alcohol.[70] This was the third occasion in which Ms P had been protected by an AVO.[71] On 26 December 2021, the Applicant committed the offence against Ms K while on bail for the offences committed against Ms P on 16 November 2020.[72] The Applicant breached the conditions to be of good behaviour and not to drink alcohol or take drugs unless those drugs were prescribed by a doctor.[73]
[69] G40, 324, Ex 4.
[70] G13, 127, Ex 4.
[71] G13, 128, Ex 4.
[72] G14, 147 Ex 4; S34, 262–263, Ex 3.
[73] G30, 324; Ex 4 S34, 263, Ex 3.
The Tribunal notes the Applicant’s expressed general remorse for his offending but he continues to maintain that the offence against Ms K did not occur, despite his conviction and the dismissal of the appeal of this conviction by the Parramatta District Court.[74] The Tribunal acknowledges that the Applicant is entitled to maintain a position, but the Tribunal accepts that the conviction is evidence that the offence had in fact occurred.
[74] G36, 302, Ex 4; G40, 325, Ex 4.
The evidence indicates that the Applicant's use of alcohol has been present in his offending as early as 2011, when he was convicted in the Republic of Korea for drink driving.[75] In relation to the offences against Ms P on 16 November 2020, the Court referred to the Applicant's offences, noting that the Applicant will “require assistance in his rehabilitation,” in relation to his alcohol misuse.[76] In relation to the offence against Ms K on 26 December 2021, the Court also made observations about the Applicant's alcohol misuse.[77]
[75] G15, 159, Ex 4.
[76] G13, 128, Ex 4.
[77] G14, 148, Ex 4.

The Tribunal acknowledges the Applicant’s limitations in the English language and the Tribunal accepts that the Applicant has taken a number of positive steps regarding the alcohol misuse issue (and anger management), including contacting helplines, engaging in counselling sessions as a condition of his parole and requesting psychological and other counselling appointments in immigration detention, and undertaking courses. However, the Tribunal is not satisfied that this means that there is no risk, or a low risk of reoffending. The Applicant has relied on a psychological report by Ms Huang,[78] who concluded that the Applicant does not demonstrate “patterns of violent or criminal behaviour.”[79] However, the Tribunal is persuaded by the Respondent’s submissions that limited weight should be attributed to Ms Huang’s opinions given the fact that she did not have regard to the Applicant’s full criminal record,[80] and did not take into account the Applicant's conviction for his most recent offending against Ms K.
[78] G40, 316–333, Ex 4.
[79] G40, 331, Ex 4.
[80] G40, 317, Ex 4.
The Tribunal acknowledges that the Applicant will have social, emotional, and other support from Ms Tran, various friends and colleagues upon his release. The Tribunal observes that Ms Tran gave inconsistent information about what she knew in relation to the Applicant’s convictions and aspects of their relationship, however, the Tribunal has decided that this does not undermine her overall evidence and expressed support for the Applicant. The Tribunal is persuaded by the Respondent’s submissions that the various character references provided fail to grapple directly with the serious nature of the Applicant’s offending and therefore should be attributed limited weight.
The Tribunal is satisfied that the cumulative evidence before the Tribunal does not support the Applicant’s contentions that the Applicant does not represent an unacceptable risk to the Australian community. Having regard to the Applicant's overall history, and limited evidence regarding his rehabilitation with respect to his alcohol misuse and domestic violence offending, the Tribunal finds that it is likely that the Applicant would engage in further criminal conduct. Given the seriousness of the potential harm that could be caused, the Tribunal is satisfied that any level of risk is unacceptable.
For those reasons, the protection of the Australian community consideration weighs heavily against revocation of the cancellation decision.
Whether the conduct engaged in constituted family violence
The Direction refers to the Australian Government having “serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.”[81]
[81] Direction 99 [8.2(1)].
The Direction contemplates that in considering the seriousness of the family violence engaged in by the non-citizen, the factors that must be considered are:
·the frequency of the offending conduct;
·any trend of increasing seriousness;
·the cumulative effect of repeated acts of family violence;
·rehabilitation achieved at time of the decision since the person’s last known act of family violence (including the acceptance of responsibility, understanding of the impact of the behaviour on the victim/witness of that abuse (particularly children) and the efforts to address factors which contributed to the conduct); and
·whether the person has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement, or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour.[82]
[82] Direction 99 [8.2(3)].
The Applicant has been convicted of offences involving direct assaults perpetrated by the Applicant on his former partners. The Tribunal is satisfied that Ms P and Ms K fall within the definition of a 'member of the person's family' for the purposes of paragraph 8.2 the Direction. The Direction specifically defines 'member of the person’s family,' for the purposes of the definition of family violence to include a person who has, or has had, an intimate personal relationship with the relevant person.[83] As correctly identified by the Respondent, the expression should not be narrowly construed and can be extended depending on the circumstances.[84]
[83] Direction 99 [4.1].
[84] Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115 [124].
The Tribunal is satisfied that the offences which occurred on 4 and 5 April 2019, 16 November 2020, and 26 December 2021 constitute acts of family violence. The Tribunal observes that although the Applicant was not convicted of the offence of intentionally choke etc person with recklessness (DV) – T1 against Ms K on 26 December 2021, the Tribunal accepts the Respondent’s submissions that the Court’s satisfaction that the injuries around her neck demonstrate that force of some kind had been applied to her neck.[85] The Tribunal is satisfied that the Court’s remarks are authoritative, supporting a finding that the Applicant has been involved in the perpetration of family violence.
[85] G14, 139, Ex 4; S24, 200–213, Ex 3.
Ms P has been subjected to repeated domestic violence offending committed by the Applicant, and the Applicant’s offending resulted in significant use of police and court resources. The Tribunal acknowledges that the Applicant has expressed remorse and shame with respect to the offending against Ms P, but that does not take away the family violence that he had committed against her.
The Applicant has conceded that this consideration weighs against revocation, on the basis of his most recent criminal offending all of which involved family violence.[86]
[86] Ex 1 [21].
The Tribunal considers the Applicant’s conduct in relation to the family violence to be very serious and reflects the magnitude of the Applicant’s criminal conduct.
The Tribunal gives this consideration significant weight against revocation.
The strength, nature and duration of ties to Australia
The Direction at paragraph 8.3(1) contemplates that decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. In considering a non-citizen’s ties to Australia, the Direction provides, among other things, that decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.[87]
[87] Direction 99 [8.3(2)].
Paragraph 8.3(4) of the Direction requires the Tribunal to consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community and in doing so have regard to:
(a) the length of time the non-citizen has resided in the Australian community, noting that:
(i) considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending;
(ii) more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii) less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Applicant has been in Australia since 2012 at the age of 27 years to study a Certificate III in Engineering (Fabrication Trade). In his SOFIC, the Applicant contended that:
·     He has developed significant ties to Australia and that his strongest tie is his biological son who is almost ten years old. He was an active and present father to his son prior to incarceration. He also paid child support.[88]
·     He has developed further ties to Australia through his employment. He has also contributed positively through his ongoing employment.[89]
·     He has ties to Australia after purchasing a property in New South Wales.
·     He enjoys close and positive relationships with Ms Tran, his partner, Ms Tran’s nephew and Mr Huynh, Ms Tran’s brother.
[88] G38, 311-312, Ex 4.
[89] G28-G30, 221-246, Ex 4.
The Applicant submitted that this consideration weighs heavily in favour of revocation.
In her Statutory Declarations dated 18 October 2022 and 2 May 2023, and in oral evidence, Ms Tran referred to their attempts to reunite as a couple.
In post-hearing submissions, the following matters were raised:
·Although the Applicant has not lived his formative years in Australia and committed offences shortly after arriving, he has developed significant ties to Australia, including his son. The Applicant was a present father in the daily life of his son until around 2018 or until he was around 4 years old. Ms Tran gave oral evidence that the son understands Korean which indicates that the Applicant was present and an active parent, teaching his son the language. Ms Tran is of a Vietnamese background. When the Applicant separated from Ms Tran around 2018, he then moved to Sydney. He had no contact with his son from around 2018 to 2022 and limited contact with Ms Tran. Ms Tran gave contrary evidence that she had no contact with the Applicant during this period. However, some contact must have occurred during this period as she provided a statement of support for the Applicant dated 18 October 2022.[90] However, it is undisputed that the Applicant had no contact with his son from around 2018 to 2022.
·On his release from detention on 27 December 2022, the Applicant completed his 6-week parole with NSW Corrective Services as required, and when permitted, he travelled to Perth to spend time with Ms Tran and his son. In his oral evidence, the Applicant said he missed 5 critical years and learned a lot while in detention and stated that he did not pay attention to his son not talking to him and that he is sorry. The Applicant stated that when he was released, he had to see his son. The Applicant’s evidence was that once in Perth, he decided to reunite with Ms Tran and stay there. In his oral evidence, he stated that Ms Tran funded the trip and provided accommodation. The Applicant contended that the Tribunal should regard to the fact that Mr Kim travelled back to Perth, reunited with Ms Tran and decided to move to Perth permanently as an indication of a genuine intent to be a present father for his son in Perth. Ms Tran provided two letters of support and gave evidence at the hearing. Ms Tran travelled to Sydney from Perth with her son to attend the hearing, showing a significant commitment and devotion to the Applicant and the strength of the ties he has. The Applicant and Ms Tran have reunited and hope for a future together in Perth. Ms Tran is a significant tie to Australia being his now partner and biological mother of his son.
·It is conceded that the creditability of Ms Tran is in question, given her evidence about knowledge of the Applicant’s criminal record and the justification she provided for his offending. However, Ms Tran’s oral evidence was very consistent with her written statements about the son needing a present father, and that it is in the best interests of the son that the Applicant remains in Australia. In her statement,[91] Ms Tran wrote that her and her siblings “grew up without a father and without doubt had a negative impact on all of [them]. Breaks [her] heart to see [her] son grow up without his father like [her], knowing all the obstacles and struggles to come.”
·The Applicant’s brother-in-law provided a statutory declaration of support dated 18 October 2022.[92] He deemed the Applicant as being his brother-in-law and he is another family tie the Applicant has in Australia.
·The Applicant has developed very strong ties to Australia through his employment history. He is a Welder/ Boiler Maker, and he has had very steady employment during the last 11 years of life in Australia. He holds qualifications that is in shortage - the occupation is on the Department’s occupations in demand list. He was held in very high regard by his colleagues and employers. He provided 13 support letters from his colleagues, including one from a previous manager who describes the Applicant’s welding skills as “excellent” and someone to whom he “entrusts” with all welding work. He also described him as a person who is like his “little brother” and a “communicative and caring friend.”
·The Applicant has established ties to Australia when he purchased a property in New South Wales.[93]
·This consideration should weigh heavily in favour of revocation of the visa cancellation.
[90] G41, 334-335, Ex 4.
[91] G41, 334, Ex 4.
[92] G44, 343-344, Ex 4.
[93] G30, 226-227, Ex 4.
The Respondent accepted that the Applicant’s current partner, Ms Tran, her nephew and her brother, Mr Huynh, would be impacted by a decision not to revoke the original decision. The Respondent acknowledged the Applicant's ties to his minor son who would be impacted by a decision not to revoke the cancellation decision, and that the Applicant has social links with friends and work colleagues who reside in Australia, as outlined in various character references.[94] It was further acknowledged that the Applicant has other ties, including employment.[95]
[94] G45-G59, 347–374, Ex 4; G62, 413-438, Ex 4.
[95] Ex 2 [59]-[64].
The Tribunal accepts that the Applicant has a significant tie to Australia, being his minor son, whose interest is discussed later, that he has a partner who supports him and who would be impacted, as well as her nephew, her brother, friends and work colleagues who have provided references in favour of the Applicant. The Tribunal is persuaded by the Respondent’s’ submissions that limited weight should be given to the length of time the Applicant has spent in the Australian community, noting he was not a resident in Australia during his formative years, he was sentenced for his first criminal offence in 2013 soon after arriving in Australia, and overall he has not made a positive contribution to the community.
On balance, the Tribunal gives this consideration considerable weight in favour of revocation. However, that weight in favour does not outweigh the primary considerations weighing in favour of non-revocation, particularly the protection of the Australian community, family violence, and as discussed below, the expectations of the Australian community.
The best interests of minor children in Australia
The Direction requires decision-makers to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.[96]
[96] Direction 99 [8.4(1)].
In considering the best interests of the child, the Direction states at paragraph 8.4(4) that the following factors must be considered where relevant:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has a minor son who is almost ten years of age.
The Tribunal accepts, and as outlined in the request for revocation,[97] that the interests of the son are critical to this consideration. The Tribunal gives regard to the cited decision of Bettencourt,[98] where the Court found that the long-term separation of a child from their parents would be very likely if the visa cancellation was not revoked and does result in serious harm to the child. The Tribunal accepts that the Applicant has romantically reconnected with Ms Tran and that they have maintained a cordial relationship, having amicably divorced in mid-2017. The Tribunal gives significant weight to Ms Tran’s views that the Applicant was a good father and took great care of his son. Although Ms Tran is now the son’s primary caretaker, the Applicant has paid regular child support prior to his criminal matters and subsequent unemployment.
[97] G32, 266-291, Ex 4.
[98] Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 (‘Bettencourt’).
The Tribunal accepts that the separation of parent-child relationship is commonly understood to have adverse consequences on the child and as observed by Ms Huang in her report by stating the following:
“It is generally understood that family separation is traumatic as removes the child’s most important protection. Particularly, forced separation from a parent is known to exacerbate feelings of anguish, despair, guilt, blame and depression on both the parent and the child. Particularly for the child, it is considered an early life stress, which is found to disrupt normal child development and to have long-term negative consequences for their psychological and physical health.”[99]
[99] G40, 331, Ex 4.
The Tribunal acknowledges the submissions that the role of the father in the Korean culture is that the male is the head of the household and acts as a breadwinner, demonstrating value to their family and care for their children through increasing their financial security.[100]
[100] G32, 280, Ex 4.
In post-hearing submissions, the Respondent contended that the Tribunal should be “slow to accept” that the Applicant would take steps and resume a meaningful role in his son’s life.[101] There is merit to this contention; the Applicant and Ms Tran gave evidence that the Applicant did not have any contact with his son between mid-2017 and 2022. Ms Tran gave evidence that the son was three years old when the Applicant left, and nine years old when the Applicant returned, which is approximately six years. The Applicant gave evidence that he was not in touch with his son mainly because he had new families and Ms P used to check his telephone. Ms Tran gave evidence that the Applicant was focused on earning money so that he could visit his father in Republic of Korea, he was young, he had never been a parent before and no one taught him how to be one. The Applicant gave evidence that he returned to Perth, for less than two months, after he was released from immigration detention. The Applicant provided multiple photographs of the two months that the Applicant had spent with his son.[102]
[101] Respondent’s Closing Written Submissions filed 9 October 2023 [21]-[24].
[102] G60, 375-404, Ex 4.

The Tribunal is mindful that in case of removal from Australia, the Applicant would face significant challenges in returning to Australia due to s 501E of the Act and his son would be deprived of seeing his father, but he could remain in contact by telephone or other means. The Tribunal however accepts that the level of involvement that the Applicant would be able to have in his son’s life would be different.
The Tribunal accepts that physical separation, should the Applicant be removed from Australia, would have a negative effect on his son and that the best interest of the son weighs in favour of revocation. The Tribunal also recognises that the son has Korean heritage and Korean language skills through his father and as such, it is important that he is able to maintain meaningful contact with his father in recognition of that heritage.
Without intending to sound harsh, the Tribunal is satisfied that the evidence indicates that the Applicant “made a choice to leave” his son and not remain in contact with him for over five years.[103] Consequently, the son has lived about half of his life without the Applicant and that is the life with which his son is familiar with. Looking at the evidence cumulatively, including the Applicant’s criminal history (excluding the pending charges), his lack of contact with his son for over five years, and his unresolved alcohol misuse, the Tribunal is guarded in suggesting that the Applicant would return to Perth and maintain a relationship with his son. Moreover, the Tribunal is concerned that given the risk of reoffending, the son could be harmed psychologically by possible exposure to domestic violence. The Tribunal observes that in relation to Ms P, the sentencing Court commented[104] that at the time of the offence, children were present in the home but in a different location. The Tribunal acknowledges that there is no evidence that the Applicant’s offending involved children, but the risk of indirect harm, in case of reoffending, cannot be underestimated.
[103] Respondent’s Closing Written Submissions filed 9 October 2023 [23].
[104] G13, 127-128, Ex 4.
On balance and having regard to the cumulative evidence, the Tribunal is satisfied that this consideration weighs in favour of revocation, but that it should be moderated and does not outweigh the considerations weighing against revocation.
Expectations of the Australian community
The Direction at 8.5(1) indicates that the Australian community expects non-citizens to obey Australian laws. It states that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
The Direction refers to non-revocation of the mandatory cancellation of a visa, being potentially appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.[105] 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 a kind that includes acts of family violence.[106]
[105] Direction 99 [8.5(2)].
[106] Direction 99 [8.5(2)(a)].
The Tribunal observes that the Direction contemplates that the expectations of the Australian community apply regardless of whether the Applicant poses a measurable risk of causing physical harm to the community.[107]
[107] Direction 99 [8.5(3)].
The Federal Court of Australia decision in FYBR v Minister for Home Affairs[108] (‘FYBR’) is significant. In FYBR, the applicant argued that the Tribunal had erred in its approach that para 11.3 of the then of Direction 65 as being deeming of what community expectations are, irrespective of the individual’s personal circumstances. The applicant argued that the Tribunal did not appreciate that it was permissible for it to assess whether community expectations would have been the same in relation to the applicant, given that he had already spent so much time in immigration detention.[109] In rejecting the applicant’s argument, Perry J concluded:
It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases.[110]
[108] FYBR v Minister for Home Affairs [2019] FCA 500.
[109] FYBR v Minister for Home Affairs [2019] FCA 500 [21].
[110] FYBR v Minister for Home Affairs [2019] FCA 500 [42].
On appeal to the Full Federal Court, the majority of the Court (Charlesworth and Stewart JJ) essentially concluded that the para 11.3 contained a statement of the government’s views as to the expectations of the Australian community that must be applied,[111] that it is not for the decision-maker to make his or her own assessment of the community expectations,[112] and that in the context of Direction 65, community expectations as expressed normatively are what the Government says that they are (even though ascertainable community expectations might be quite different).[113] In essence, the judgment is authority for the proposition that it is not the decision-maker who makes an assessment of community values on behalf of the community, and that those values are expressed as norms in Direction 65. The applicant’s special leave application to the High Court of Australia was dismissed.[114]
[111] FYBR v Minister for Home Affairs [2019] FCAFC 185 [66].
[112] FYBR v Minister for Home Affairs [2019] FCAFC 185 [67].
[113] FYBR v Minister for Home Affairs [2019] FCAFC 185 [91].
[114] FYBR v Minister for Home Affairs [2020] HCATrans 056.
The Applicant’s criminal conduct is serious and it involves family violence offences. The Tribunal is satisfied that the Australian community expects that the Australian Government should not revoke the cancelation of the Applicant’s visa because his conduct is serious and includes acts of family violence.
The Tribunal gives this consideration significant weight against revocation.
THE OTHER CONSIDERATIONS
Legal consequences of the decision
At paragraph 9.1, the Direction indicates that decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
The Direction divides the considerations to be applied in this paragraph into two sections:
(1) non-citizens covered by a protection finding; and
(2) non-citizens not covered by a protection finding.
Australia is a signatory to several international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).
Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there would be a risk of harm.
Non-refoulement obligations is not confined to the protection obligations to which s 36(2) of the Act refers.[115] It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.
[115] See Ibrahim v Minister for Home Affairs [2019] FCAFC 89 [103].
If the Applicant is unsuccessful before the Tribunal and/or any appeal, he remains unlawful and he will be liable for removal from Australia pursuant to s 198 of the Act. Although an adverse outcome, removal is a legitimate and lawful consequence.
The Applicant has not made any claim, and there is no evidence of any claim that requires an assessment of Australia’s international obligations.
In light of the above, the Tribunal gives this consideration neutral weight.
Extent of impediments if removed
Paragraph 9.2 of the Direction requires the Tribunal to consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country) taking into account:
(a) the non-citizen's age and health;
(b) whether there are substantial language or cultural barriers; and
(c) any social, medical and/or economic support available to them in that country.
The Applicant is 38 years old and there are no cultural or linguistical obstacles or known health issues. He does have an issue with alcohol misuse. He was born and raised in Republic of Korea, where he resided until he was about 27 years old. As a Korean citizen, the Applicant would be able to access the same social, medical, and economic supports as other citizens of Republic of Korea. Although the Tribunal acknowledges that if removed from Australia to Republic of Korea, the Applicant could face some practical difficulties, including re-establishing relationships, housing and employment, those obstacles are not insurmountable.
In the request for revocation submissions,[116] the Applicant argued that his separation from his son is his principal impediment should he be removed from Australia, and that he would feel anxious and worried about being indefinitely separated from his son without recourse for reunification. The Tribunal accepts that there could be psychological impediments that would be faced as a result of the separation of the Applicant from his son. However, this needs to be placed in the context that the Applicant did not see his son for over five years, suggesting that the impediment as a result of the separation should be moderated.
[116] G32, 287-288, Ex 4.
The Applicant also argued that he currently owns property in Ermington, New South Wales which was purchased for over $800,000, and that under the Foreign Investment Review Board legislation, foreign persons who are not permanent residents must sell their Australian property within three months of ceasing to be a resident. As such in case of the visa cancellation, the Applicant would be forced to sell his property in a limited time frame and potentially not receive a premium price for the property. The Tribunal cannot predict what would happen in case of a sale in a limited time frame, and as such the Tribunal cannot speculate. However, the Tribunal gives this aspect some weight in favour of revocation.
The Tribunal has considered the Applicant’s circumstances very carefully. On balance, the Tribunal gives this consideration limited weight in favour of revocation.
Impact on victims
The Direction requires decision-makers to consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.[117]
[117] Direction 99 [9.3].
In his Statutory Declaration of 2 September 2023,[118] the Applicant described his relationships including those with Ms P and Ms K. The Applicant provided copies of text messages to demonstrate Ms P’s previous regular attempts to contact him.[119] He stated that he no longer has any contact with either of them, which the Tribunal accepts as plausible.
[118] Applicant’s Tender Bundle, Ex 5.
[119] Applicant’s Tender Bundle, Ex 5.
In the Applicant’s submissions in support of the request for revocation,[120] it was contended that the Applicant’s ability to remain in Australia would not negatively impact the victims as the Applicant has not been in contact with Ms P since the breakdown of their relationship. Further, he intends to relocate to Western Australia to live with his son upon his release from detention, which would be geographically separated from Ms P who had resided in Sydney to the best of the Applicant’s knowledge. In relation to Ms K, it was contended that the Applicant remains on friendly terms with Ms K despite their breakup due to the difficulties of maintaining a relatively new relationship while indefinitely incarcerated. However, Ms K has not expressed any discomfort at the prospect of the Applicant remaining in Australia and has, in fact, endorsed the revocation of his visa cancellation. The Applicant requested that this factor be considered neutrally in relation to the revocation request.
[120] G32, 266-292, Ex 4.
In the Respondent’s SOFIC,[121] the Respondent referred to Manebona,[122] noting that this consideration is not limited to only impacts upon 'victims as victims,' and PGDX,[123] where the applicant contended that the Tribunal erred in failing to have proper regard to the testimony of his ex-wife, in which she stated that she forgave him and her life would be made easier if he was allowed to live in Australia. Kerr J observed at [9]:
…properly construed cl 14.4 of Direction No 79 operates in recognition that an offender’s victim is to be given appropriate agency in the decision making process. That means a victim’s interest in respect of the impact of such a decision must be taken into account by the decision-maker consistently with the usual position that a relevant consideration may weigh either in favour of, or against, whether or not to revoke the mandatory cancellation of a visa.
[121] Ex 2 [82]-[87].
[122] Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116 (‘Manebona’).
[123] PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235 (‘PGDX’).
The Respondent referred to Bale,[124] where His Honour Justice Perram observed that where family members are also the victim of the applicant's crimes, the mandatory considerations relating to victims and ties to the Australian community have the potential to overlap. His Honour states at [26] and [27]:
I do not accept this argument because whichever way one looks at it, the fact that [the applicant’s] wife desired for him to remain in Australia was taken into account by the Tribunal. Where a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously…
The only way to outflank that problem would be to submit that there was some aspect of the wife’s evidence as a victim which was different from her evidence as a spouse. Such evidence might be readily enough imagined. For example, in her evidence [the applicant’s] wife could have addressed the fact that [the applicant] had been convicted of common assault following an attempt to throttle her early on the morning of 17 December 2007. She could have said that despite that assault she forgave him and was not concerned that he might assault her again. It may well be that evidence of that kind would have engaged cl 14.4(1) independently of cl 14.2.(1)(b).
[124] Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 (‘Bale’).
In her Statutory Declaration of 23 November 2022, Ms K states that the Applicant is “not a violent nor easily angered person.”[125] Ms K denies that the Applicant committed the offence on 26 December 2021. A letter from the Applicant's partner (now former), Ms P, was relied upon by the Applicant in sentencing for the common assault and property damage offences which occurred on 4 and 5 April 2019. The letter also states that the applicant is “not a violent person nor would do any harm nor would do any harm on [Ms P] or to anyone in [her] family.”'[126] The letter states that the Applicant had compensated Ms P for the damage to her property.
[125] G37, 306, Ex 4.
[126] S44, 285-286, Ex 3.
The Respondent contended that this consideration may be given some measure of weight in favour of revocation but should not be given overwhelming or significant weight.
Given the complexity of the dynamics, the Tribunal is cautious to give weight to evidence of partners, or former partners who have been victims of family violence. Moreover, the Tribunal has not had the opportunity to hear directly from either victim and to assess for itself any impact, and as such, the Tribunal considers it appropriate in this case to give neutral weight to this consideration.
Impact on Australian business interests
At paragraph 9.4 of the Direction, it is noted that decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
In post-hearing submissions, it was contended that the Applicant has developed very strong ties to Australia through his employment history.[127] He is a Welder/ Boiler Maker. He has had a very steady employment during the last 11 years of life in Australia. He holds qualifications that is in shortage and is on the Department’s occupations in demand list. The Applicant is held in very high regard by his colleagues and employers. The Applicant has provided 13 support letters from his colleagues, including his former manager who describes the Applicant’s welding skills as “excellent” and someone to whom he “entrusts” with all welding work.
[127] Applicant’s Closing Submissions filed 9 October 2023 [44]-[46].
In oral evidence, the Applicant confirmed that he does not have any current offers of employment.
Although the Tribunal is satisfied that the Applicant has skills in welding, the evidence does not support a conclusion that a non-revocation decision would significantly compromise the ‘delivery of a major project, or delivery of an important service in Australia.' As such, the Tribunal gives this consideration limited weight in favour of revocation.
Other matters for consideration
Paragraph 9 of the Direction expressly states the other considerations 'are not limited' to the matters listed therein.
There are no other matters for consideration.
CONCLUSION
The Tribunal recognises the significance and complexity of a visa cancellation. The process is not intended to be a formulaic exercise, but rather a holistic approach, taking a number of matters into account, and giving regard to the considerations under Direction 99. On balance, although there are aspects in favour of revocation, the aspects against revocation outweigh those in favour. The seriousness of the Applicant’s offending conduct, the fact that the offending conduct involved family violence, the risk of reoffending, and the expectations of the Australian community weigh heavily against revocation.
The Tribunal and for the explained reasons found that:
·Primary considerations 1, 2 and 5 weigh strongly in favour of non-revocation.
·Primary considerations 3 and 4 weigh slightly in favour of revocation.
·Other considerations a and c are neutral.
·Other considerations b and d weigh slightly in favour of revocation.

The Tribunal is satisfied that Primary considerations 1, 2 and 5, significantly outweigh all other considerations. The Applicant has engaged in serious conduct soon after his arrival in Australia.
The Tribunal acknowledges the Applicant’s remorse and attempts to address his alcohol misuse issues, however, having regard to all relevant material before it, the Tribunal is satisfied that the correct and preferable decision is not to revoke the cancellation of the Applicant’s Partner visa.
DECISION
The Tribunal affirms the decision under review.

137. I certify that the preceding one-hundred and thirty-six (136) paragraphs are a true copy of the reasons for the decision herein of Deputy President Antoinette Younes.

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

Dated: 12 October 2023

Date of hearing(s):

6 October 2023

Solicitor for the Applicant:

Ms M Mamarot, South West Migration & Legal Services

Solicitor for the Respondent:

Ms G Gutmann, MinterEllison

Date of hearing(s):	6 October 2023
Solicitor for the Applicant:	Ms M Mamarot, South West Migration & Legal Services
Solicitor for the Respondent:	Ms G Gutmann, MinterEllison