KQFJ and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 2271
•25 March 2025
KQFJ and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 2271 (25 March 2025)
Applicant:KQFJ
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2023/6338
Tribunal:Senior Member T Tavoularis
Place:Brisbane
Date:25 March 2025
Decision:Pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal AFFIRMS the decision made by a delegate of the Respondent dated 24 August 2023 to not revoke the mandatory cancellation of the Applicant’s Partner (Class BS) (Subclass 801) Visa.
........................[SGD]..............
Senior Member T Tavoularis
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Partner (Class BS) (Subclass 801) visa – Whether the Applicant does not pass the character test pursuant to s 501(6)(a) taken with s 501(7)(c) of the Migration Act 1958 (Cth) – Whether the Applicant does not pass the character test pursuant to s 501(6)(d)(ii) of the Migration Act 1958 (Cth) - whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 – primary and other considerations – protection of the Australian community from criminal or other serious conduct – whether conduct engaged in constituted family violence - the strength, nature and duration of ties to Australia – best interests of minor children in Australia – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed - decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Migration Amendment (Aggregated Sentences) Act 2023 (Cth)
Cases
BJT21 v Minister for Home Affairs (No 2) [2022] FCA 24
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Harrison v The Minster for Immigration and Citizenship (2009) 106 ALD 666
Pearson v Minister of Home Affairs [2022] FCAFC 203
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 7
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1046Walker v Minister of Home Affairs [2020] FCA 909
Secondary Materials
Direction No 110 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
DFAT Country Information Report (Nigeria) December 2020Migration Regulations 1994 (Cth)
INTRODUCTION
The Applicant is a currently 33 years of age and was born in Nigeria in March 1991. He first came to Australia on 28 December 2014 and has never departed this country since his initial arrival. On 22 December 2022, the Applicant was notified of the mandatory cancellation of his visa[1] pursuant to s501(3A) of the Migration Act 1958 (Cth) (“the Act”). This mandatory cancellation was based on convictions imposed on the Applicant by a New South Wales (‘NSW’) Local Court in December 2022. He was convicted on two counts of common assault and one count of contravene prohibition / restriction in AVO (domestic). In addition, an extant offence of assault occasioning actual bodily harm (DV) was called up. For these four convictions (including the called up offence) he received an aggregate sentence of 12 months’ imprisonment with a non-parole period of four months.
[1] Partner (Class BS) (Subclass 801) visa, hereinafter referred to as “the visa.”
As at December 2022, the Applicant did not pass the character test as a matter of law.[2] The aggregate sentence of 12 months[3] meant he had a “substantial criminal record” which compelled the Respondent’s Department to find he did not pass the character test.[4] The mandatory cancellation provisions of s501(3A) of the Act were engaged because of (1) the Applicant’s substantial criminal record[5] and (2) he was contemporaneously serving a sentence of imprisonment on a full-time basis in a custodial institution for offending against the laws of New South Wales.[6] He was invited to make the necessary representations to the Respondent’s Department in support of the revocation of the mandatory cancellation decision.
[2] Harrison v The Minster for Immigration and Citizenship (2009) 106 ALD 666 at [63].
[3] Section 501(7)(c) of the Act.
[4] Section 501(6)(a) of the Act.
[5] Section 501(3A)(a)(i) of the Act.
[6] Section 501(3A)(b) of the Act.
The process of the Applicant making these representations was impacted by the Full Court’s decision in Pearson[7]. Pearson invalidated the original mandatory cancellation of the visa because that decision had been triggered by an aggregation of the Applicant’s sentences. Pearson’s impact was legislatively remediated by Parliament[8] which, in turn, re-enlivened the process of the Applicant’s making of necessary representations to set aside the original mandatory cancellation decision of 22 December 2022. The Applicant duly made those representations on 19 January 2023.
[7] Pearson v Minister of Home Affairs [2022] FCAFC 203.
[8] Migration Amendment (Aggregated Sentences) Act 2023 (Cth).
Following the making of those representations, the Applicant successfully appealed the sentences imposed on him in December 2022. In March 2023, a NSW District Court varied the head custodial term from 12 months to nine but otherwise retained the non-parole period at four months. On 27July 2023, the Respondent’s Department wrote to the Applicant acknowledging reduction of his head sentence on appeal and told him: ”…..Despite your visa cancellation being lawful….the Department…is aware that if assessed under s501(7)(c) after [specific date redacted] March 2023 you would no longer be liable for visa cancellation under s501(3A) [of the Act].”[9]
[9] R1, p 472.
In their letter of 27 July 2023, the Respondent’s Department referred the Applicant to s501(6)(d)(ii) of the Act and told him “The Department holds information about your criminal history, which indicates that you do not pass the character test by virtue of [that provision].”[10] Section 501(6)(d)(ii) of the Act provides that “A person will not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person will harass, molest, intimidate or stalk another person in Australia……”. This correspondence then invited the Applicant to comment on the information about his criminal history held by the Department.[11]
[10] R1, p 472.
[11] R1, p 473.
On 24 August, 2023, a delegate of the Respondent Minister made a decision pursuant to s 501CA(4) of the Act to not revoke the original mandatory cancellation of the Applicant’s visa that occurred on 22 December 2022. I will hereinafter refer to the refusal to revoke decision made on 24 August 2023 pursuant to s 501CA(4) of the Act as the “Decision Under Review”.
THE INSTANT HEARING
The instant hearing proceeded before me on 8 and 9 October 2024 and 24 January 2025. The hearing received oral and written evidence from (1) the Applicant; (2) Ms NS who is the Applicant’s former partner and mother of his daughter; (3) the Applicant’s previous employer and now prospective employer, Mr Chris Campbell; and (4) the clinical psychologist, Mr Matt Visser. At the commencement of the hearing, I sought the parties’ agreement to a draft Exhibit List in an endeavour to ensure there was unanimity between the parties and the Tribunal about the totality of the material before the Tribunal. During the course of the hearing, additional exhibits added to the initial list. The finalised and unanimously agreed Exhibit List is attached these Reasons and marked Annexure A.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by section 501CA(4) of the Act. Relevantly, this provides that:
4 The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. There remain two issues presently before the Tribunal. They are:
a)whether the Applicant passes the character test; and if not
b)whether there is another reason why the decision to cancel the Applicant’s Visa should be revoked.
Does the Applicant pass the character test?
But for the impact of Pearson, the Applicant would have been found to not pass the character test as a matter of law.[12] It is clear from his criminal history that in mid-December 2022, he received a sentence of imprisonment of 12 months or more,[13] and thus could now comfortably be found to have a “substantial criminal record” which ordinarily compels this Tribunal to find he does not pass the character test.[14] To my mind, this should be the end of matter for two reasons: (1) Parliament legislatively[15] remediated Pearson which, for the purposes of the character test, surely returns the parties to the position they were in as at 22 December 2022 when the visa was mandatorily cancelled; and (2) because of what the Federal Court said in BJT21 v Minister for Home Affairs (No 2) [2022] FCA 24 (“BJT 21”):
The language and context of s 501(3A) does not indicate that a decision by the Minister under s 501(3A) may be retrospectively vitiated by subsequent events. The Minister’s obligation is to cancel a visa upon satisfaction that the holder: does not pass the character test because of s 501(6)(a) taken with s 501(7)(c) (substantial criminal record), or s 501(6)(e) (sexually based offences involving a child); and is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a relevant law. When that state of satisfaction is lawfully reached, the Minister’s obligation to cancel the visa is absolute.[16]
[12] Harrison v The Minster for Immigration and Citizenship (2009) 106 ALD 666 at [63].
[13] Section 501(7)(c) of the Act.
[14] Section 501(6)(a) of the Act.
[15] Migration Amendment (Aggregated Sentences) Act 2023 (Cth)
[16] Per Rangiah J at [71].
Based on the above analysis, it is of no moment that an appeal court - some three months after the mandatory cancellation decision pursuant to s501(3A) of the Act - reduced the head custodial aggregate term from 12 months to nine. Consequent upon the legislative remediation of Pearson, the lawful basis of the mandatory cancellation was re-enlivened such that the Applicant should now be found to not pass the character test. This is my first finding about the character test.
However, and for reasons not entirely clear to me, the Respondent’s Department forwarded the abovementioned letter dated 27 July 2023[17] to the Applicant. In this letter, the Applicant was told: “[In] March 2023 after an appeal against…...the severity of the sentence, the District Court of New South Wales varied the term of imprisonment to an aggregate term of nine months’ imprisonment. Despite your visa cancellation being lawful……the [Respondent’s] Department….is aware that if assessed under s501(7)(c) [of the Act] after [specific date redacted] March 2023 you would no longer be liable for visa cancellation under s501(3A) [of the Act].”[18] [My emphasis]. The letter went on to tell the Applicant that “The Department holds information about your criminal history, which indicates that you do not pass the character test by virtue of s501(6)(d)(ii) of the Act” and that “You are invited to comment on the further information.”[19]
[17] R1, pp 472 – 474.
[18] R1, p 472.
[19] R1, pp 472-473.
This letter does not contain any reference to any fact, matter or thing vitiating the Respondent Minister’s lawfully reached state of satisfaction to mandatorily cancel the visa on 22 December 2022. On the contrary, the letter clearly tells the Applicant “Despite your visa cancellation being lawful…..”. The Department’s being “…….aware that if assessed under s501(7)(c) after [specific date redacted] March 2023 you would no longer be liable for visa cancellation under s501(3A)” cannot be a factor now capable of vitiating or displacing the Respondent Minister’s lawfully reached state of satisfaction to mandatorily cancel the visa on 22 December 2022.
For this reason, I am hard-pressed to understand why it is necessary to embark on the exercise of assessing whether or not the Applicant passes the character test pursuant to s501(6)(d)(ii) of the Act. I have found the Applicant does not pass the character test because of s501(6)(a) of the Act taken with s501(7)(c) of the Act resulting in the Applicant having a “substantial criminal record.” If this finding is wrong and out of an abundance of caution, I will proceed to determine whether he passes the character test pursuant to s501(6)(d)(ii) of the Act. This section relevantly provides that “……a person does not pass the character test if:……… (d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:……..(ii) harass, molest, intimidate or stalk another person in Australia;…..”
In its written closing submissions,[20] the Respondent provides methodology for assessing whether a non-citizen passes the character test pursuant to s 501(6)(d)(ii) which, to my mind, has meritorious traction for present purposes. There are three initial “threshold” questions to be addressed. First, what is the appropriate level of risk? The Respondent contends that for the purpose of s (501)(6)(d)(ii), the risk should be a real and tangible one. This level of risk is to be differentiated from a significant risk because Parliament intended it to be so. When this provision was amended in 2014, Parliament removed the word “significant” from it. The explanatory memorandum to that amending legislation explains the omission in these terms: “The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.”
[20] See R5.
It is therefore safe to find that while a minimal or negligible level of risk would not engage the auspices of s 501(6)(d)(ii), there is no requirement to identify a significant risk. Rather, the safe middle ground for the purposes of applying this provision lies in identification of a real and tangible risk.
Second, what type of conduct falls for consideration pursuant to this provision? Language of the provision refers to specific categories of conduct in the form of harassment, molestation, intimidation or stalking of another person in Australia. Section 501(11) mandates that “For the purposes of the character test, conduct may amount to harassment or molestation of a person even though (a) it does not involve violence, or threatened violence, to the person; or (b) it consists only of damage, or threatened damage, to property belonging to, in the possession of, or used by, the person.” Thus, the categories of conduct contemplated by s 501(6)(d)(ii) are not exclusively limited to manifestation of the conduct on a “hands on” basis. It can include conduct such as a perpetrator punching a hole in a wall or intentionally breaking an item of property of another person.
The Respondent makes the further point that the presence of “or” in the provision demonstrates that assessment of risk does not require all four categories of the conduct to be present. The word “or” confirms that the presence of only one of the four categories in the conduct being assessed will suffice. I am therefore satisfied that the Applicant’s conduct now before the Tribunal involving, as it does, clearly violent conduct towards female victims in a domestic context comfortably falls within one of the four categories referred to in the subject provision.
Third, with reference to the conduct under review, is there any temporally fixed period during which future risk may be found to exist? The short answer is “no”. This is so because of what the Federal Court said in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1046:[21]
[42] Section 501(6) of the Act forms part of a statutory scheme within the Act which advances the object of regulating the presence in Australia of non-citizens, in the national interest, and the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by the Act: ss 4(1) and 4(4) of the Act.
[43] The majority of the High Court in Falzon v Minister for Immigration and Border Protection [2018] HCA 2; (2018) 262 CLR 333 (Falzon), comprising Kiefel CJ, Bell, Keane and Edelman JJ accepted that the purpose of s 501 of the Act is to protect the Australian community. In Falzon at [89], Gageler and Gordon JJ also observed that, “the purpose of cancelling a visa pursuant to s 501(3A) is to exclude from the Australian community a class of persons who, in the view of Parliament, should not be permitted to remain in Australia”: see also Ratu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 286 FCR 89 per Farrell, Rangiah and Anderson JJat [56]. I accept the Minister’s submission that the context and purpose of the Act, and s 501 in particular, do not limit the refusal power to consideration of risk of criminal offending in Australia “during the period of the visa”. The context and purpose of the Act support a broader construction, that the risk being assessed is the risk of a person engaging in criminal conduct in Australia at any time. [22]
[Bold is my addition; the underlined bold appears as italicised text in the original]
[21] Per Anderson J.
[22] At [42] – [43]. Cited at [7] of R5.
Following determination of the threshold issues, the next task is to review the evidence for the purposes of arriving at an assessment of the relevant risk. The conduct of the Applicant falling for assessment pursuant to s 501(6)(d)(ii) has, as its exclusive domain, violent attacks upon at least three female partners in a private domestic context. Applied to the present assessment exercise, the question becomes: is there a real and tangible risk of the Applicant harassing, molesting, intimidating or stalking another female in Australia with whom he has had or may have an intimate domestic relationship at any time? The instant hearing enjoyed the benefit of expert psychological evidence from the clinical psychologist, Mr Matt Visser. His report appears in the material and is dated 29 December 2024[23]. In his written report, Mr Visser made these observations:
The main risk factor is that he has assaulted all three of his significant romantic partners in a pattern that has shown escalation. The main causal factors for his offences appear to be his use of drugs and alcohol and his mental illness. While he did not address these until placed into a significant period of incarceration, he has since taken direct and consistent steps to address these issues, maintaining sobriety, attending courses, and engaging in regular therapy with a clinical psychologist. Were he to maintain these behaviours outside of a detention setting his risk would reduce, particularly if he were able to directly address his trauma. If his mental health issues were addressed using an evidence based therapy for trauma, his risk would reduce.[24]
[My emphasis].
[23] A3, pp 1-33.
[24] A3, p 15, lines 548-555.
Further in his report, Mr Visser noted that “In [the Applicant’s] case, his offence history suggests a pattern of domestic violence across three separate partners, with escalation of the severity of those offences as time progressed. The primary causal factors of his offending appear to relate to his mental illness and drug and alcohol abuse.”[25] In terms of actual risk, Mr Visser opined thus: “The risk assessment conducted…. suggested him to be of low to moderate risk of any form of recidivism. For domestic violence, his risk of recidivism is moderate, which would reduce if he were to engage in specific therapy to address his trauma.”[26]
[25] A3, p 5, lines 74-76.
[26] A3, p 5, lines 67-68.
Mr Visser also provided oral evidence to the instant hearing. The following exchange transpired between Mr Visser and the Respondent’s representative during cross-examination:
“MR BURKE: Mr Visser, in relation to your risk assessments of [the Applicant], in particular the risk assessment dealing with domestic violence, that’s been identified as a moderate risk, and just to clarify a couple of things. Firstly, that moderate risk indicates a moderate risk of physical violence in a future domestic relationship. Is that right?
MR VISSER: Yes.MR BURKE: Would it also be fair to say, Mr Visser, that the moderate risk of domestic violence incorporates a risk of [the Applicant] using threats and intimidation in a future domestic relationship?
MR VISSER: Yes. Yes, it would.
MR BURKE: This perhaps is a bit of a semantic question, but by ‘moderate risk’, is that analogous to saying [the Applicant] is in that medium risk range?MR VISSER: Medium risk could be a different way of putting it. Yes.”[27][27] Transcript, p 80, lines 41-45: p 81, line 1-7.
During cross-examination, Mr Visser was taken to a relevant police document (with which he seems to have been briefed[28]) recording the Applicant saying the following words to one of his victims: “Wait until I get to you and see you. I’m going to kill you.” Mr Visser was told that in his evidence to the Tribunal, the Applicant did not cavil with having said these words. Mr Visser was then taken to the scores he recorded in the performance of his SARA[29] upon the Applicant which is a 24-item structured guide for spousal risk evaluation. Item 13 of that guide looks for “Past use of weapons and/or credible threats of death.”[30] In the results column, Mr Visser had not made any notation of, or reference to, the Applicant’s credible threat of death made to one of his victims.
[28] See A3, p 2; and p 4, lines 24-30.
[29] Spousal Assault Risk Assessment
[30] See A3, p 16.
The resulting exchange transpired between Mr Visser and his cross-examiner:
“MR BURKE: Under cross-examination yesterday, [the Applicant] confirmed, and we accepted, that that happened. In your opinion, Mr Visser, is that a credible threat of death for the purpose of item 13?
MR VISSER: Yes, it is. My apologies to the tribunal for missing that.
MR BURKE: Not a problem, Mr Visser. There’s a significant amount of material in this case. In relation to that, I understand based on your response that would change the presence of that factor to, yes, that it exists. Is that right?
MR VISSER: It would. It would. Yes.
MR BURKE: Are you able to opine now what impact, if any, that would have on the risk assessment?
MR VISSER: Look, it would increase it. I wouldn’t say to a high risk overall. I mean, to me, the credible threats of death probably more relate to, I guess, intensity of risk rather than likelihood, if that makes sense as a difference. So the credible threats of death don’t necessarily indicate that it’s more likely to occur, but just that, if it does, that the potential consequences of that are higher.”[31][My emphasis]
[31] Transcript, p 82, lines 21-37.
Taken in its totality, it would be unsafe to suggest or find that Mr Visser’s evidence points to a minimal, trivial or otherwise low risk of the Applicant’s commission of further domestic violence offences. Mr Visser was clear that the Applicant’s recidivist risk of domestically violent offending against a domestic partner is “moderate” which, in his oral evidence, he said was analogous to the “medium risk range”. To my mind, the evidence points to a series of factors which speak to precisely this type of recidivist risk finding for the purposes of s 501(6)(d)(ii). I will address each of the factors in turn.
The overall pattern of the Applicant’s domestic violence offending: this pattern was identified by Mr Visser in his oral evidence. Mr Visser noted that “….in terms of risk….past offending is usually the best predictor of future offending. That he’s had three significant relationships and all of them have involved domestic violence leading to convictions, from my understanding, is, yes, suggestive that the risk of him….doing so in a future relationship is higher than….if it was a single incident or if there was….not a more consistent pattern involved….[32].
[32] Transcript, p 83, lines 12-18.
Expressions of remorse: the Applicant has previously made expressions of remorse but nevertheless returned to a pattern of committing acts and offences of domestic violence. I agree with the submission of the Respondent: the past pattern of expressing remorse and a commitment to change his ways has been repeatedly followed by further offending and, accordingly, this aspect of the Applicant’s evidence must be approached with caution.
The appeal court’s reduction of the head sentence from 12 months to nine months: an argument that could be put on a favourable basis about the Applicant’s current recidivist risk is that while the first court imposed a head custodial term of 12 months, the appeal court reduced that head term to 10 months and thus beneath the 12 month threshold appearing in ss501(6)(a) and 501(7)(c) of the Act. It could be argued that Parliament does not view the Applicant’s offending at the same level of seriousness than would be the case if the 12 month first instance sentence had not been disturbed on appeal. This argument does not (and should not) have traction because of the legislative remediation[33] of Pearson. As I have found, this means there is no fact, matter or thing vitiating the Respondent Minister’s lawfully reached state of satisfaction to mandatorily cancel the visa on 22 December 2022.
[33] Migration Amendment (Aggregated Sentences) Act 2023 (Cth).
The making of certain Federal Circuit and Family Court (“FC&FC”) Orders by consent on 29 November 2021[34]: my initial apprehension, tentatively expressed at the hearing, was that if the FC&FC was prepared to make these orders which, inter alia, facilitated people shared parental responsibility for a child of the Applicant and Ms NS, those orders would contemplate at least some measure of contact and communication between him and her and that, accordingly, the FC&FC must not have thought he represented any kind of domestic violence risk towards her. I am now of the view that this initial apprehension was misplaced. There is nothing in the material to suggest the FC&FC made any assessment of the Applicant’s recidivist risk of committing domestically violent conduct against her when making these consent orders. Specifically, it is not clear whether the FC&FC had before it, any evidence of the Applicant’s previous domestically violent conduct towards either Ms NS or any other domestic partner. The further point is that after these consent orders were made on 29 November 2021, the Applicant was again involved in domestically violent conduct towards another domestic partner on 30 July 2022[35] and 30 August 2022[36].
[34] See R1, pp 123-128.
[35] See NSW Police Facts Sheet: R1, pp 647-650.
[36] See NSW Police Facts Sheet: R1, pp 661-664.
The prospect of accommodation and employment with Mr CC: when the Applicant was last in the community, he had been engaged in remunerative employment. But even so, even while gainfully employed, he proceeded to demonstrate and commit conduct of a domestically violent nature against domestic partners. Employment does not seem to ameliorate his recidivist risk for domestically violent conduct. Mr CC talks about offering the Applicant somewhere to reside, at least in the short to medium term. He had accommodation in the past, but it did not prevent him from committing domestically violent conduct.
Rehabilitation: it is true the Applicant has engaged in some measure of rehabilitation. However, the only safe and logical finding is that he should now be found to be only at the start or the early phases of the rehabilitative process. The criticality of him maintaining a pattern of engagement with rehabilitation was not lost on Mr Visser who clearly predicated any lowering of the Applicant’s current recidivist risk against the Applicant becoming and remaining engaged in a sustained pattern of rehabilitation. Mr Visser acknowledges the Applicant did not address the causative factors behind his offending “….until placed into a period of incarceration….” Mr Visser further opined that “Were he to maintain these [rehabilitative] behaviours outside of a detention setting his risk would reduce….” The reality has been that though the Applicant has previously made commitments to participating in rehabilitation, he made similar claims previously and before the mandatory cancellation of his visa. Indeed, he made such pledges to a court in 2020 and yet proceeded to subsequently commit further very serious acts of family violence.
The claimed absence of domestically violent conduct against Ms MH: the Applicant contends he should be found to represent a low recidivist risk because of an absence of family violence conduct against his current domestic partner, namely, Ms MH. They met in May 2022 and he says they have “….been in a relationship….for over a year now.”[37] This contention should received with significant caution and, more probably, rejected. This is because while one the one hand, there does not seem to be any complaint by Ms MH about any domestically violent (or derivative) conduct by the Applicant towards her, it should be noted that, on the other hand, she resides in New Zealand and for the totality of their purported relationship, he has been in immigration detention.
[37] Transcript, p 45, lines 36-37.
Based on the above factors disclosed by the evidence, I am comfortably satisfied there is a real and tangible risk that if allowed to remain in Australia, the Applicant would harass, molest, intimidate, or stalk another female domestic partner. Accordingly, I will find that the Applicant fails to pass the character test pursuant to s 501(6)(d)(ii) of the Act. This is my second finding about the character test.
Is there another reason why the Decision to cancel the Applicant’s visa should be revoked?
In considering whether there is another reason to revoke the mandatory cancellation of the Applicant’s Visa,[38] the Tribunal is bound by section 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction 110 has application.[39]
[38] Pursuant to section 501C(4) of the Act.
[39] Direction No 110 commenced on 21 June 2024. It replaces Direction No. 99 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a
non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are as follows:
(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) The safety of the Australian Community is the highest priority of the Australian Government.
(3) 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.
(4) 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 noncitizen poses a measurable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) 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.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:
(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 sets out three Other Considerations which must be taken into account. These considerations are:
(a)legal consequences of the decision;
(b)extent of impediments if removed; and
(c)impact on Australian business interests.
I move now to a consideration of each of those primary and other considerations as may be relevant to the instant facts.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Direction further provides that the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(i)the nature and seriousness of the non-citizen’s conduct to date; and
(ii)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
I will consider each in turn.
The nature and seriousness of the Applicant’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
(e)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(i)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
An overview of the Applicant’s offending.
The Applicant’s offending may be summarised as follows:
·Number[40] of offences: 8
[40] This number includes the double-recording of the offence whose court reference number ends in “….7602”. This offence was charged and convicted as “Assault occasioning actual bodily harm (DV) – T2”. It was first dealt with at a NSW Local Court in December 2020 but then called up by another NSW Local Court when it dealt with the Applicant in December 2022.
·Number of sentencing episodes: 3
·Types of offences:
oDestroy or damage property (DV);
oCommon assault (DV) – T2 (x3);
oAssault occasioning actual bodily harm (DV) – T2 (x2);
oContravene prohibition/restriction in AVO (Domestic);
oEnter premises of any person without lawful excuse.
·Nature of sentences imposed:
oBond for 12 months (x2);
oCommunity correction order for 2 years;
oConviction with no other penalty;
oImprisonment for 12 months with a non-parole period of four months (aggregated sentence) (x4).
There is a helpful summary of the Applicant’s offending appearing in the Respondent’s Statement of Facts, Issues and contentions (“SFIC”)[41]. This summary refers to a lamentable pattern of appallingly violent conduct perpetrated by the Applicant against three domestic partners with whom he was in a relationship at the time the offences were committed. The relevant dates on which the domestically violent were committed comprised 17 July 2017, 30 September 2020, 30 July 2022 and 30 August 2022. It suffices to say the Applicant’s conduct towards these domestic partners involved:
[41] R2, pp 6-7, [31] – [34]
·verbal abuse including openly-made threats to kill;
·the administration of significant levels of physical abuse resulting in injuries to victims, including:
ostriking a victim with his hand and kicking her in the region of her buttocks and right calf area causing pain and bruising;
oforcing a victim to put a towel in her mouth to subdue her cries;
ograbbing a victim around the neck area at the front of her clothes when she attempted to leave;
opushing a victim in the chest causing her to fall backwards into a bathtub and bucket of laundry;
opunching a victim in the stomach multiple times;
oslapping a victim in the region of her face/head a number of times giving her a black eye;
ograbbing hold of a victim’s left shoulder and pulling her backwards causing her to rotate to face him;
oraising his right hand towards a victim as if about to slap her;
oforcefully slapping a victim to the left side of her face causing her pain and also causing her to fall to the floor; and
oholding the head of a victim towards the floor to prevent her from screaming.
·the conduct being perpetrated in the presence of at least one child then aged seven years; and
·involved at least one victim very seriously fearing for her safety which compelled her to ring the triple-zero emergency number requesting police assistance.
Application of factors appearing at paragraph 8.1.1(1) of the Direction.
The Direction contains nine non-– exhaustive factors referrable to the assessment of the nature and level of seriousness of a non—citizen’s criminal offending in Australia. I will, in turn, address each of them insofar as they may engage the evidence before the Tribunal.
Paragraph 8.1.1(1)(a)
The chapeau to this specific paragraph contains the descriptor of “very serious” to three specific categories of unlawful conduct. The facts, circumstances and outcomes of this Applicant’s domestically violent conduct perpetrated on three separate domestic partners have been adequately summarised in the Respondent’s SFIC and with even greater particularity in the summonsed Police documents. There can be no cavilling with the proposition (and finding) that this Applicant’s conduct falls squarely within the auspices of this paragraph 8.1.1(1)(a) and should now be found to be “very serious.”My finding will be that this Applicant’s history of offending in Australia should now be viewed as “very serious”.
Paragraph 8.1.1(1)(b)
The Applicant’s unlawful conduct does not appear to engage the auspices of this paragraph. He has not caused a person to enter into a forced marriage and there is no evidence he has been a party to such a marriage himself.[42] He has not committed any offence against a vulnerable member of the community or any government official going about their business.[43] He has not committed a crime while in immigration detention.[44] I have found that he has committed conduct (pursuant to s501(6)(d)(ii) of the Act) comprising “harass, molest, intimidate or stalk another person in Australia” which, in turn, led me to find he does not pass the character test on this basis.[45] I will therefore find, consistent with the “serious” descriptor appearing at the chapeau to this paragraph 8.1.1(1)(b), that the totality of this Applicant’s unlawful conduct in this country is, at the very least, serious, more likely very serious.
[42] Paragraph 8.1.1(1)(b)(i) of the Direction.
[43] Paragraph 8.1.1(1)(b)(ii) of the Direction.
[44] Paragraph 8.1.1(1)(b)(iv) of the Direction.
[45] Paragraph 8.1.1(1)(b)(iii) of the Direction.
Paragraph 8.1.1(1)(c)
This paragraph compels an examination of the sentences imposed by Courts on the Applicant for his offending. There is an important exception contained in the language of this paragraph. Specifically, this exception precludes me from taking into account (1) crimes of a violent and/or sexual nature against women or children; (2) acts of family violence regardless of whether or not any of that conduct was convicted and/or whether a sentence was imposed for it; and (3) any crime or crimes involving the Applicant causing another person to enter into a forced marriage or of him entering into such a marriage himself.
As best as I understood the Applicant’s offending history, of the eight entries in that history only two of them could now possibly be said not to fall into any of the three above-mentioned excluded categories. They would be (1) his conviction on 9 August 2017 for “Destroy or damage property (DV)” and (2) “Enter prescribed premises of any person without lawful excuse.” But even these two offences, while not involving physical or other abuse perpetrated by the Applicant on a domestic victim, they were nevertheless committed as part of the factual transaction culminating in his commission of acts of family violence. The safest course is to put this paragraph 8.1.1(1)(c) to one side and to render it neutral for present purposes.
Paragraph 8.1.1(1)(d)
As best as I understood the material, it does not contain any documentary or other evidence dealing with the impact of the Applicant’s offending on any victim or member of their family. The safest course is to put this paragraph to one side and render it neutral for present purposes.
Paragraph 8.1.1(1)(e)
This Applicant has a criminal history that, in sentencing terms, runs for about five and a half years. He has convictions for eight offences (including the abovementioned called-up offence) across that period. This is a rate of offending at well over one offence per year and approaching two offences per year. I am therefore satisfied that for the period of this criminal history, the Applicant’s offending has been frequent. The next question is whether his offending pattern betrays any trend of increasing seriousness. To my mind, such an enquiry is not required because the Applicant’s domestically violent conduct has been very serious from its outset.
The factual circumstances of his initially-committed domestically violent conduct involving him making threats to kill the victim and physically striking her with his hand and kicking her in the buttocks and right calf area causing pain and bruising. It also saw him forcing her to put a towel in her mouth to subdue her cries. Comparatively, his finally episode of domestically violent conduct saw him again making a threat to kill the victim, slapping her to the left side of her face causing her pain and also causing her to fall to the floor. He then held her head towards the floor to prevent her from screaming.
It is clear that the Applicant’s domestically violent conduct has been very serious from its outset. When conjoined to my finding about its frequency, I am satisfied that this paragraph 8.1.1(1)(e) strongly militates in favour of a finding that the totality of his offending conduct in this country has been very serious. I so find.
Paragraph 8.1.1(1)(f)
There are a number of palpable cumulative effects arising from the Applicant’s repeated offending. First, it is surely beyond argument that his apalling conduct towards victims of his domestic violence has traumatised them both physically and emotionally. The Applicant cannot now be heard to suggest anything to the contrary. Second, his first three domestically violent offences were punished by non-custodial terms in the form of two good behaviour bonds with respective operative periods of 12 months and a community correction order also with an operative period of 12 months. He experienced no deterrent effect from these non-custodial punishments and proceeded to commit five further offences (including the called-up offence) that were punished by a head custodial term of 12 months which was later reduced to nine months on appeal.
Third, the Applicant’s conduct across the 5 and a half years of its commission has required the intervention and deployment of an undue level of the community’s policing, judicial sentencing, custodial and healthcare resources. Fourth, and perhaps of greatest concern, is the reality that this Applicant has not developed any modicum of respect for female domestic partners with whom he has been in a relationship with. He cannot be heard to say that the alcohol or the drugs or some asserted past trauma so disoriented his moral compass such as to cause him to so viciously attack three domestic victims. There is no excuse for the awful family violence he has committed and it betrays an utter lack of respect for women who have had the misfortune of personally associating with him.
Paragraph 8.1.1(1)(g)
As best as I understood the material, there is no reference to any document or other evidence referring to the Applicant’s provision of false or misleading information to the Respondent’s Department, including by not disclosing prior criminal offending. This paragraph 8.1.1(1)(g) can be safely put to one side and rendered neutral for present purposes.
Paragraph 8.1.1(1)(h)
There is nothing in the material to suggest the Applicant has re-offended since being formerly warned or since otherwise being made aware, in writing, about the consequences of further offending upon his visa status to remain in this country. It should be noted that the absence of any such warning should not be considered to be in the Applicant’s favour. The safest course is to put this paragraph 8.1.1(1)(h) to one side and render it neutral for present purposes.
Paragraph 8.1.1(1)(i)
Although the Applicant remained in Nigeria until his early to mid-20’s, there is no evidence that he committed any offence or perpetrated any conduct in Nigeria (or any other country) which would be classified as an offence in Australia. The safest course is to put this paragraph 8.1.1(1)(i) to one side and render it neutral for present purposes.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have applied each of the relevant paragraphs appearing in paragraph 8.1.1(1) of the Direction to the evidence. The relevant paragraphs in paragraph 8.1.1(1) informing my own assessment of the Applicant’s offending now safely and cumulatively lead me to the conclusion (and finding) that the totality of his unlawful conduct in this country can be readily characterised as ‘very serious’. I so find.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
There is no requirement to recount the factual nature and circumstances of the Applicant’s domestically violent conduct. It has undoubtedly traumatised its three victims in both an emotional and physical way. If re-committed, such conduct would inevitably result in very significant physical and psychological harm to members of the Australian community. In addition, the community’s policing, judicial sentencing, custodial and healthcare resources would again be unduly consumed.
I am this satisfied that re-commission of the Applicant’s very serious unlawful conduct would result in harm to both individual victims and our community more generally. I variously characterise this harm as psychological, physical (including potentially catastrophic) as well as materially quantifiable harm in terms of its undue consumption of the community’s resources.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant’s position
In his Personal Circumstances Form (“PCF”) the Applicant says “At the moment I believe I am at low-nil risk of offending again. I am taking steps to deal with the personal matters that caused me to offend in the first place….I have distanced myself from individuals who have had a negative influence on me….I do not have any intention of entering a new romantic relationship until I have reconciled with the issues that caused me to behave in the manner that I did….”[46] In his more recent statutory declaration, he refers to six rehabilitative courses he completed while in prison.[47] Those courses variously relate to anger management, self-regulation and control, overcoming a propensity to abuse illicit drugs and alcohol, domestic violence and recovery. Most recently, he says “….I am also participating in rehabilitation programs such as Smart Recovery and Positive Lifestyle….The program….Involves lessons on self-awareness, anger management and how to manage depression, loneliness, stress and grief. We are taught how to assess the above and manage them.”[48]
[46] R1, p 139.
[47] See A2, p 3-4.
[48] A2, p 4, [21].
During his evidence-in-chief, he was asked to talk about the positive impacts he had experienced from whatever rehabilitative courses he had undertaken. The following transpired between the Applicant and his representative:
MR BERG: I have the same question. What did that tell you about yourself? APPLICANT: The Circuit Breaker?
MR BERG Yes?
APPLICANT: It tells me a lot about myself on how to have a timeout whenever we are having – like, whenever we are stressed. You know, whenever we are stressed, like you know, how we can have a timeout. There are a few things that we can implement whenever we are stressing and how we can communicate in a very healthier way. It doesn’t have to result in violence. It doesn’t have to be abusive (indistinct). It does have to be coercive control of our partner or to anyone, to our kids (indistinct).
MR BERG: Okay. Did that program speak to things that are in you?
APPLICANT: Yes.
MR BERG: And what were the - - -?
APPLICANT: Speaks a lot about me. It speaks a lot about me on how to, like, my communication skills, whenever I’m frustrated, whenever, like, it speaks about, like you know, addictions. And it speaks about, like you know, how we can, like you know, open my hands and praying as well to – because it’s from church as well. Then it speaks about a lot.
MR BERG: Sorry, I’m going to change my question a bit because you did mention the SMART Recovery program. So you said that went for 15 weeks?
APPLICANT: Yes, correct.
MR BERG: Can you tell the tribunal about what that program told you about yourself, about that program and you?
APPLICANT: I won’t lie to you. The program helped me a lot, a lot. And I just want to appreciate the (indistinct), the possibility (indistinct) from Perth. Like because it went for 15 weeks I know about boundaries. Before, I didn’t know about boundaries. I know about being assessive [sic]. I know about how we can communicate in a healthier way. I know about addiction. Addiction could be anything. You know, we can be addicted to chocolate, we can be addicted to drink, we can be addicted to anything in life. It’s about, like you know, it teaches me about co-dependency. Teaches me about co-dependency, and like, you know, there are a few things like, a few courses that I (indistinct) they are a few topics that I pick a lot from it. I’ve been able to – it’s made me discover myself, you know, how I’ve been able to communicate in a very healthier way.During cross-examination, the Applicant spoke of wanting to work with victims of domestic violence in some type of counselling role if now returned to the community. He was asked why he thought he would be a good candidate for such a role and he responded with “The reason why is because...I’ve been convicted of so many offences of domestic violence and I’ve learnt my lesson and I want to help other people, like, to let them know that domestic violence is never acceptable in the community or anywhere. I want to share my journey, I want to help women, I want to help kids.”[49]
[49] Transcript, p 31, lines 1-7.
Non-clinical evidence
Ms Georjia Newhouse is the Pathways Coordinator for the Wayside Chapel. She has written a report which is dated 20 February 2023 and which appears in the material.[50] In this report she says “I have been working alongside [the Applicant] in the Pathways Program for the past few months.”[51] She adds that the Applicant “….has demonstrated commitment to his own wellbeing and has actively engaged on a weekly basis with a psychologist, providing him with holistic support for his mental health and general wellbeing. She is looking “….forward to continuing to support [the Applicant] whilst he requires employment support and excited to be kept up to date on the incredible progress he is making in his rehabilitation.”[52]
[50] R1, p 156.
[51] R1, p 156.
[52] R1, p 156.
Ms Diana Curuenavuli is the Founder and President of “Number 8 Prison Project Incorporated.” Her report is dated 7 June 2023 and appears in the material.[53] She has come to know the Applicant via her chaplaincy visits upon him in immigration detention. She notes the Applicant “….has consistently attended the chaplaincy sessions with our group for the past 3 months.”[54] The program Ms Curuenavuli runs a program that is “….aimed at addressing past behaviours, cultural and behavioural barriers and aligning oneself with our faith. We do this by talk therapy….in a group setting on a weekly basis.”[55] She notes the Applicant has “….given his life back to the Christ and his actively practising his faith.”[56] She is of the belief that “….should [the Applicant] be given an opportunity to re-enter community and his Visa be reinstated he would be and upstanding member of our community.”[57]
[53] R1, pp 461-462.
[54] R1, p 461.
[55] R1, p 461.
[56] R1, p 461.
[57] R1, p 461.
Clinical evidence
Dr M Lumina Titus is a doctor of medicine in general practise who has known the Applicant for many years. He regards the Applicant as “….a very affectionate father.”[58] In the first of his two reports dated 8 March 2023 he said “As his GP, I have noticed that since he was in jail, his behaviours changed, he quitted [sic] smoking and not drinking, which make him more relaxed.”[59] Dr Titus notes the Applicant “….was on antidepressant before, which he doesn’t need anymore.”[60] The second of the reports from Dr Titus is dated 17 March 2023 and it also appears in the material.[61] In this second report, Dr Titus recounts the Applicant’s medical history and specific current medications the Applicant takes for diabetes, hypertension and high cholesterol.
[58] R1, p 121.
[59] R1, p 121.
[60] R1, p 121.
[61] R1, p 122.
Ji Fang Zhou is a psychologist in private practice whose report is dated 7 March 2023 which appears in the material.[62] As at the date of his report, he says he has been consulting with the Applicant for about two months and that they had done four sessions. Mr Zhou said the Applicant “….reported a history of trauma due to intrafamilial sexual abuse in childhood.[63]” Mr Zhou further noted the Applicant “….has consistently demonstrated remorse for his actions, and commitment to correct his mistakes from the past.”[64] He records that the Applicant “….has also reportedly registered to commence the Facing Up Program for DV offenders on 9 March 2023.”[65]
[62] R1, pp 154-155.
[63] R1, p 154.
[64] R1, p 154
[65] R1, p 154.
Earlier in these reasons, I had cause to review the evidence of the clinical psychologist, Mr Matt Visser, for the specific purpose of assessing risk pursuant to s 501(6)(d)(ii) of the Act. Mr Visser’s report is dated 29 December 2024 and, as mentioned earlier, it relevantly appears in the material.[66] Mr Visser was of the view that the main causal factors for the Applicant’s offending were his abuse of illicit drugs and alcohol and his mental illness. He is of the view that the Applicant has embarked on a course of rehabilitative treatment and that if this Applicant maintains this pattern of treatment in the community, his recidivist risk would reduce.
[66] A3, pp 4-33.
Mr Visser appeared to have a sound understanding of the Applicant’s pattern of domestically violent conduct towards three separate partners. He noted an escalation of the severity of this conduct as time progressed. In terms of assessed recidivist risk, Mr Visser divided his assessment into two parts. He said: “The risk assessment conducted suggested him [the Applicant] to currently be of low to moderate risk of any form of recidivism. For domestic violence his risk of recidivism is moderate, which would reduce if he were to engage in specific therapy to address his trauma.”[67]
[67] A3, p 5, lines 66-68.
I have earlier noted the exchange between the Applicant and his cross-examiner (at the instant hearing) on the Applicant’s risk profile for further domestically violent offending. He agreed that the Applicant represents a moderate risk of physical violence in a future domestic relationship and that this moderate risk incorporates a risk of him using threats and intimidation in a future domestic relationship. He also clarified that his reference to “moderate risk” is analogous to the Applicant’s recidivist risk for domestically violent offending being in the medium risk range.
As noted earlier in these Reasons, Mr Visser was forthright enough to acknowledge that in conducting his SARA[68] analysis on the Applicant, he overlooked Item 13 of that structured guide referrable to the SARA which looked for “credible threats of death”. It is clear from the evidence that the Applicant has made repeated threats to kill domestic partners. The resulting question about the impact that inclusion of the Applicant’s repeated threats of death to victims at Item 13 of the SARA would have on the Applicant’s risk profile for further domestically violent conduct, Mr Visser said “Look, it would increase it.”[69] It seems clear that Mr Visser is of the view that the Applicant’s recidivist risk of further domestically violent conduct against a domestic partner is “moderate” which he said was analogous to a risk profile for this type of conduct in the “medium risk range”.
[68] Spousal Assault Risk Assessment
[69] See footnote 31 of these Reasons.
Other lay evidence
My findings about impediments are as follows:
·the Applicant’s age is not an impediment to any return to Nigeria. To the extent his physical and mental health symptoms present as impediments, they are not insurmountable;
·there are no substantial language or cultural barriers impeding the Applicant’s return and resettlement in Nigeria;
·any lack of economic support is not an impediment to his return and re-settlement in Nigeria;
·to the extent that any lack of medical support is an impediment to his return and re-settlement in Nigeria, I have found it is not an insurmountable one; and
·there is no lack of social support now presenting as an impediment to the Applicant’s return and resettlement in Nigeria.
Given my findings about each of the three sub-paragraphs to this paragraph 9.2 of the Direction, I am of the view that this Other Consideration (b) confers, a moderate level of weight in favour of this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant’s Visa.
Other Consideration (c): Impact on Australian business interests
The parties are ad idem that this Other Consideration (c) is not relevant to the instant determination. I agree and will allocate neutral weight to it.
Findings: Other Considerations
The allocation of weight to the Other Considerations in the present matter can be summarised as follows:
(a)legal consequences of the decision: is of moderate weight in favour of revocation;
(b)extent of impediments if removed: is of moderate weight in favour of revocation; and
(c)impact on Australian business interests: is of neutral weight.
CONCLUSION
Under section 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant’s Visa: either the Applicant must be found to pass the character test; and if not, I must be satisfied there is another reason, pursuant to the Direction, to revoke the cancellation decision. As noted (and found) previously in these Reasons, the Applicant does not pass the character test on either of the two grounds I have discussed[137].
[137] That is, neither pursuant to s 501(6)(a) taken with s 501(7)(c) (substantial criminal record) or s 501(6)(d)(ii).
In considering whether there is another reason to exercise the power afforded by section 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s Visa, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: is of a very heavy level of weight in favour of affirming the Decision Under Review;
·Primary Consideration 2: is of a very heavy level of weight in favour of affirming the Decision Under Review;
·Primary Consideration 3: is of a heavy level of weight in favour of setting aside the Decision Under Review;
·Primary Consideration 4: is of a heavy level of weight in favour of setting aside the Decision Under Review;
·Primary Consideration 5: is of a very heavy level of weight in favour of affirming the Decision Under Review.
I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined respective weights I have allocated to Primary Considerations 3 and 4 together with Other Considerations (a) and (b) are comprehensively and dispositively outweighed by the combined respective weights I have allocated to Primary Considerations 1,2 and 5.
A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding there is not another reason to revoke the mandatory cancellation of the Applicant’s Visa.
Decision
Pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth), this Tribunal affirms the decision made by a delegate of the Respondent on 24 August 2023 to not revoke the mandatory cancellation of the Applicant’s Partner (Class BS) (Subclass 801) visa.
Dates of hearing: 8 & 9 October 2024; 24 January 2025 Counsel for the Applicant: Mr Peter Berg Solicitors for the Applicant: Ms Marta Mamarot (Principal)
SouthWest Migration & Legal ServicesSolicitors for the Respondent: Mr Cormac Burke (Senior Associate)
Sparke Helmore LawyersAnnexure A
Exhibit Description of Evidence Date of Document Date Received R1 Remittal Bundle Various 5 July 2024 R2 Respondent’s SFIC 6 September 2024 6 September 2024 R3 Respondent’s Tender Bundle Various 6 September 2024 R4 First Tribunal’s Written Reasons 20 December 2023 4 October 2024 R5 Respondent’s Written Closing Submissions 13 December 2024 13 December 2024 A1 Applicant’s SFIC 9 August 2024 9 August 2024 A2 Applicant’s Tender Bundle – Part 1 Various 9 August 2024 A3 Applicant’s Tender Bundle – Part 2 Various 2 October 2024 A4 Applicant’s Tender Bundle – Part 3 Various 2 October 2024 A5 Applicant’s Written Closing Submissions 29 November 2024 29 November 2024
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