Kumar and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 4069

Kumar and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4069 (7 December 2023)
Division:General Division
File Number(s): 2020/6906
Re:SUNITA KUMAR
APPLICANT

AndMINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
RESPONDENT

DECISION
Tribunal:The Hon Justice Kyrou, President
Date:7 December 2023
Place:Brisbane

Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration with a direction that the discretion conferred by s 501(1) of the Migration Act 1958 to refuse to grant Shivneel Kumar a visa should not be exercised.
......................[SGD]..................................................
Justice Kyrou

Catchwords

MIGRATION – refusal of application for return (residence) (class BB) visa where visa applicant does not pass the character test – visa applicant remains offshore – whether discretion conferred by s 501(1) of the Migration Act 1958 to refuse visa should be exercised.
MIGRATION – Ministerial Direction 99 – visa applicant has strong ties to Australia – that consideration outweighs other considerations – decision under review set aside and remitted with a direction that discretion conferred by s 501(1) should not be exercised.
Legislation
Migration Act 1958
Cases

Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 94
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Jones v Dunkel (1959) 101 CLR 298
Secondary Materials

Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

TABLE OF CONTENTS
DECISION
REASONS FOR DECISION
INTRODUCTION AND SUMMARY
MIGRATION ACT 1958 AND MINISTERIAL DIRECTION 99
LEGAL PRINCIPLES
NON-CONTENTIOUS FACTS AND PROCEDURAL HISTORY
SK’s family, living arrangements, education and employment
SK’s offending
SK’s visit to Fiji and refusal of his visa application
EVIDENCE
Findings on credibility, reliability and weight to be given to evidence
Evidence of SK
Evidence of Mr Kumar
Evidence of Ms Kumar
Evidence of Dr Bruce Stevens
Evidence of Dr James Freeman
EFFECT OF MR KUMAR’S PASSING
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
Provisions of Direction 99 relevant to primary consideration 1
Parties’ submissions on primary consideration 1
Decision on primary consideration 1
PRIMARY CONSIDERATION 2 – FAMILY VIOLENCE
Provisions of Direction 99 relevant to primary consideration 2
Parties’ submissions on primary consideration 2
Decision on primary consideration 2
PRIMARY CONSIDERATION 3 – STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
PRIMARY CONSIDERATION 5 – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
OTHER CONSIDERATIONS
OUTCOME
CONCLUSION

Table of Initials and Pseudonyms

Initials/pseudonym Individual concerned

SK Shivneel Kumar, the visa applicant.

MH Mr Kumar’s sister (SK’s aunt) who lives in Australia. Mr Kumar is SK’s father.

NK Mr Kumar’s brother (SK’s uncle) who lives in Australia and with whom Ms Kumar had an intimate relationship. Ms Kumar is SK’s mother.

AA SK’s former partner who was the victim of SK’s stalking and assault offences.

BB The victim of SK’s fraud offence.

CC The victim of SK’s burglary offence.

DD SK’s former partner who was the victim of SK’s contravention of a domestic violence order.

REASONS FOR DECISION
INTRODUCTION AND SUMMARY

Shivneel Kumar (‘SK’), a citizen of Fiji who previously resided in Australia, applied for a return (residence) (class BB) visa on 29 January 2019 while he was in Fiji visiting his father, Mr Kumar, who was living and working in Fiji at that time. On 13 October 2020, a delegate of the respondent Minister (‘Delegate’) refused to grant the visa pursuant to s 501(1) of the Migration Act 1958 (‘Act’). The basis of the refusal was that the Delegate was not satisfied the SK passed the ‘character test’ within the meaning of s 501 because he has a substantial criminal record and also because, in all the circumstances, it was appropriate to exercise the discretion conferred by s 501(1) to refuse to grant SK a visa.
Sunita Kumar is SK’s mother. She is an Australian citizen who lives in Australia. On 3 November 2020, she applied for review of the Delegate’s decision. She made the application instead of SK because SK remains in Fiji by reason of the refusal of his visa application.
Ms Kumar’s application for review was refused by this Tribunal, differently constituted, on 21 July 2021.[1] An appeal by Ms Kumar to the Federal Court was dismissed on 21 November 2022.[2] A further appeal by Ms Kumar to the Full Court of the Federal Court was allowed on 16 June 2023.[3] The Full Court quashed the Tribunal’s decision and remitted the proceeding to the Tribunal to hear the application for review afresh and according to law. I conducted the remitter hearing on 8 and 9 November 2023.
[1]           CWRG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2408.
[2]           CWRG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1382.
[3]           Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 94 (‘Full Court Decision’).
Although the applicant in the proceeding is Ms Kumar rather than SK, the hearing was conducted for the benefit of SK, with Ms Kumar being absent and apparently not taking an active role. As all submissions for the purposes of the hearing were, in substance, made on behalf of SK, I will attribute to SK all submissions contending that the discretion conferred by s 501(1) of the Act to refuse to grant SK a visa should not be exercised.
For the reasons that follow, the Delegate’s decision will be set aside and the matter will be remitted to the respondent for reconsideration with a direction that the discretion conferred by s 501(1) of the Act to refuse to grant SK a visa should not be exercised.

MIGRATION ACT 1958 AND MINISTERIAL DIRECTION 99

Section 501(1) of the Act states:
The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Passing the character test is governed by s 501(6) of the Act, which relevantly provides:
For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or…
A substantial criminal record is relevantly defined in s 501(7) of the Act in the following terms:
For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or …
SK properly conceded that he does not pass the character test as a result of a total effective sentence of 3 years’ imprisonment imposed on him by the Southport District Court on 2 June 2015.[4]
[4] See [‎43]–[‎45] below.
Where a person does not pass the character test, a delegate of the Minister and the Tribunal in the exercise of its review jurisdiction are not bound to refuse to grant a visa but retain a discretion whether to do so. In deciding whether to exercise this discretion, delegates and the Tribunal are required to comply with ‘Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ issued by the Minister on 23 January 2023 (‘Direction 99’).[5] As s 501CA is not presently relevant, no further reference will be made to it.
[5] Act, s 499(1)–(2A).
The purpose of Direction 99 is to guide decision-makers in performing functions or exercising powers under s 501 of the Act.[6] Paragraph 5.2 sets out six principles which provide the framework within which decision-makers should approach their task of deciding whether to refuse to grant a non-citizen’s visa under s 501. Principles 5 and 6 have particular application to the present case. They relevantly provide as follows:
(5)With respect to decisions to refuse … 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 … refusing the visa … . In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.5(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.
[6] Direction 99, [5.1] (4).
Paragraph 6 of Direction 99 provides that, informed by the six principles, decision-makers must take into account the primary and other considerations contained in the direction where they are relevant to the decision. Direction 99 states that primary considerations should generally be given greater weight than the other considerations.[7]
[7] Direction 99, [7] (2).
In this proceeding, it is common ground that, of the five primary considerations, only 1, 2, 3 and 5 are relevant. They are as follows:
(a)protection of the Australian community from criminal or other serious conduct (para 8.1 of Direction 99);
(b)whether the conduct engaged in constituted family violence (para 8.2 of Direction 99);
(c)the strength, nature and duration of ties to Australia (para 8.3 of Direction 99); and
(d)expectations of the Australian community (para 8.5 of Direction 99).[8]
[8] Primary consideration 4 – the best interests of minor children in Australia – is not relevant because there is no evidence that any such children exist in SK’s family.
Direction 99 does not limit the other considerations that can be taken into account. However, it requires that the following ‘other considerations’ be taken into account where relevant:
(a)legal consequences of the decision (para 9.1 of Direction 99);
(b)extent of impediments if removed (para 9.2 of Direction 99);
(c)impact on victims (para 9.3 of Direction 99); and
(d)impact on Australian business interests (para 9.4 of Direction 99).
Neither party expressly relied upon any of the above ‘other considerations’. However, in the context of his reliance upon primary consideration 3 (the strength, nature and duration of ties to Australia), SK referred to some cultural and other impediments he faced in Fiji. These impediments do not fall within any of the enumerated ‘other considerations’. The other consideration ‘extent of impediments if removed’ does not apply because it is directed at impediments arising from a person being removed from Australia. Nevertheless, the impediments faced by SK in remaining in Fiji are relevant to the exercise of the discretion conferred by s 501(1) of the Act. Also, as appears from [‎198] below, the respondent made submissions on the other consideration ‘extent of impediments if removed’. Accordingly, I will consider the impediments faced by SK in remaining in Fiji below under the heading ‘other considerations’, after I discuss primary considerations 1, 2, 3 and 5.

LEGAL PRINCIPLES

As stated by the Full Court of the Federal Court in Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[9] although the Tribunal is required to take into account Direction 99, that direction does not dictate the outcome of the review before the Tribunal.[10] The primary and other considerations in Direction 99 are mandatory relevant considerations but are ‘not an exhaustive universe’ of considerations.[11]
[9] [2023] FCAFC 94.
[10] Full Court Decision [2023] FCAFC 94, [26].
[11] Full Court Decision [2023] FCAFC 94, [42], citing Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104, [45].
Complying with Direction 99 is no substitute for the Tribunal reading, identifying, understanding and evaluating the case made by an applicant on the material before the Tribunal.[12]
[12] Full Court Decision [2023] FCAFC 94, [27], citing Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417, 425–6 [24]–[26]; [2022] HCA 17.
It is not sufficient for the Tribunal to weigh each of the considerations in Direction 99 separately and then aggregate each of the individual assessments by some form of calculus. Instead, the Tribunal must undertake a process of weighing and balancing, by which it evaluates the different considerations in relation to each other in a balancing exercise in order to reach the ultimate conclusion required by s 501(1) of the Act.[13]
[13] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138, [28], [34]–[35], [37]–[38].
The discretion conferred by s 501(1) of the Act is to be exercised subject to the Act and subject to the self-evident Australian community protective purpose of the discretion. However, by the very circumstance that the section confers a discretion, it necessarily follows that Parliament has accepted that this purpose is not necessarily served in a given case by a refusal to grant a visa to a person who does not pass the character test.[14]
[14] Full Court Decision [2023] FCAFC 94, [41].

NON-CONTENTIOUS FACTS AND PROCEDURAL HISTORY
SK’s family, living arrangements, education and employment

SK was born in Fiji in March 1991. His older brother, Krishneel, was born in January 1989.
On 27 January 1995, when SK was aged 3 years and 10 months, his family came to Australia to enable Mr Kumar to study law. SK attended pre-school and primary school in Brisbane.
The family returned to Fiji on 28 March 2000, when SK was aged 9. SK attended primary and secondary school in Fiji.
Mr Kumar and his family (including SK) were granted Australian permanent residency visas on 22 May 2008. The family returned to Australia on 27 June 2008, when SK was 17. SK attended secondary school in Brisbane. Ms Kumar acquired Australian citizenship on 12 November 2012. Krishneel also acquired Australian citizenship. Mr Kumar and SK retained their Fiji citizenship.
In the second half of 2008, Mr Kumar returned to Fiji to work as lawyer. In May 2013, he was appointed a judge of the High Court of Fiji. Ms Kumar, SK and Krishneel remained in Australia and lived together.
Mr and Ms Kumar were separated but remained legally married. Mr Kumar has lived in Suva, Fiji. Ms Kumar lives in Brisbane, Australia.
Around late 2010 or 2011, when SK was aged 19 to 20 and living with Ms Kumar, she commenced an intimate relationship with SK’s uncle, NK (Mr Kumar’s brother). This led to a breakdown in the relationship between SK and Ms Kumar, resulting in SK being evicted from the family home.
On 2 November 2012, following his arrest for the offence of armed robbery (see below), SK was bailed to the family home where he was required to live with Ms Kumar and NK. There, SK witnessed NK commit family violence against Ms Kumar. In a statutory declaration dated 6 April 2021, Ms Kumar stated that, on one occasion, NK struck SK across the forehead with the blade of a knife. As a result of these incidents, until recent years, SK has had a strained relationship with Ms Kumar.
In 2018, SK completed a Diploma of Legal Services at a TAFE in Queensland.
SK’s employment history in Australia is as follows. He began working in door to door sales and marketing with a small firm, and was eventually promoted to sales manager. The firm ceased operation after he had worked there for eight months. He then worked in sales at a department store for 14 months, as well as some casual work as a DJ. He also worked in sales with a telecommunications company. After he was released on parole on 2 June 2015, he worked in sales with a resort company. He has also worked as a fundraiser for various charities, including those that raise awareness for cancer and cerebral palsy.
After he returned to Fiji on 23 November 2018,[15] SK worked in a retail job for a brief period in 2019. Since 2019, he has not been employed.
[15] See [‎52] below.
In September 2021, Mr Kumar was appointed Chief Justice of Fiji after acting in that role from 8 April 2019.
Krishneel continues to live in Australia. He is married and works in the mining industry.
Mr Kumar’s sister, MH, lives in Australia as does her son, SK’s cousin.
Mr Kumar’s older sister and younger brother reside in Fiji. They live in a city other than Suva, and each of them has children who reside in Fiji.

SK’s offending

SK has been found guilty without a conviction being recorded for the first three offences in the following list and has been convicted of the other offences in that list:
1.31 December 2010: failing to appear in accordance with undertaking;[16]
2.11 May 2011: unlawful stalking (‘stalking’); [17]
3.11 May 2011: common assault (‘assault’); [18]
4.2 June 2015: fraud – dishonestly obtain property from another (‘fraud’); [19]
5.2 June 2015: robbery with actual violence while armed (‘armed robbery’); [20]
6.2 June 2015: burglary and commit indictable offence (‘burglary’); [21]
7.2 June 2015: unlawful use of a motor vehicle; [22]
8.2 June 2015: driving without a licence;[23]
9.2 June 2015: breach of bail condition;[24] and
10.2 February 2018: contravention of a domestic violence order (‘DVO’). [25]
[16] Contrary to s 33(1) of the Bail Act 1980 (Qld). The maximum penalty at the time of the offending was 2 years’ imprisonment.
[17] Contrary to s 359E(1) of the Criminal Code 1899 (Qld). The maximum penalty at the time of the offending was 5 years’ imprisonment.
[18] Contrary to s 335 of the Criminal Code 1899 (Qld). The maximum penalty at the time of the offending was 3 years’ imprisonment.
[19] Contrary to s 408C(1)(b) of the Criminal Code 1899 (Qld). The maximum penalty at the time of the offending was 5 years’ imprisonment.
[20] Contrary to s 411(2) of the Criminal Code 1899 (Qld). The maximum penalty at the time of the offending was life imprisonment.
[21] Contrary to s 419(4) of the Criminal Code 1899 (Qld). The maximum penalty at the time of the offending was life imprisonment. This offence comprised SK entering CC’s home and stealing the keys to his Ferrari.
[22] Contrary to s 408A(1)(a) of the Criminal Code 1899 (Qld). The maximum penalty at the time of the offending was 7 years’ imprisonment. This offence comprised SK unlawfully using CC’s Ferrari without CC’s consent.
[23] Contrary to s 78(1) of the Transport Operations (Road Use Management) Act 1995 (Qld). The maximum penalty at the time of the offending was 1 year imprisonment.
[24] Contrary to s 29(1) of the Bail Act 1980 (Qld). The maximum penalty at the time of the offending was 2 years’ imprisonment.
[25] Contrary to s 177(2)(b) of the Domestic and Family Violence Protection Act 2012 (Qld). The maximum penalty at the time of the offending was 3 years’ imprisonment.
SK committed the offence of failing to appear in accordance with an undertaking by not surrendering into custody when required. The background to this offence is that SK was charged on 22 October 2010 with stalking and assault, and granted bail to appear in the Ipswich Magistrates Court on 21 December 2010. On 30 December 2010, he was charged with failure to appear in accordance with the undertaking and pleaded guilty at that Court on 31 December 2010. No conviction was recorded and no penalty was imposed on him. In his written evidence, SK stated that he did not appear on 21 December 2010 because he had misheard the date upon which he was required to appear.

SK committed the stalking and assault offences against his former partner, AA. The stalking took place between 1 March and 10 October 2010 and the assault occurred on 15 October 2010. SK was aged 19 at those times. He pleaded guilty to both charges at the Ipswich Magistrates Court on 11 May 2011. For both charges, he was fined $800 and no conviction was recorded.
In a statutory declaration dated 25 March 2021, SK stated that the stalking was committed through SMS messaging. He stated that that he continued to message AA following the cessation of their relationship, despite her requests that he stop. He denied an allegation that had been made against him that he had attended AA’s residence (a student accommodation complex) wearing a mask and had attempted to open a window security screen with a spanner. He said that he had in fact attended the student accommodation complex to visit a friend to play video games and watch a movie.
In his statutory declaration dated 25 March 2021, SK stated that the assault occurred in a nightclub where he was performing as a DJ. AA and some of her friends were also at the nightclub. SK got into an argument with AA and her friends. Following the argument, he pushed one of AA’s male friends, causing him to collide with AA. There is no evidence that AA suffered any physical or other injury.
The fraud offence was committed on 24 August 2012, when SK was 21. The circumstances of the offending were as follows. SK advertised a room for rent in Brisbane online. The victim of the fraud, BB, began corresponding with SK with a view to renting the room from SK. SK asked BB to pay into SK’s bank account an amount representing the bond and rent for the first two weeks in order to secure the property. After BB transferred $1,050, SK refused to make the property available to BB or return the money.
The circumstances of the armed robbery offence, which was committed on 2 October 2012 when SK was 21, were as follows. SK entered a fashion accessories store and spent two hours there, after which he approached the counter and asked the 21 year old female shop assistant if she was a calm person. He apologised to her and said that he had a knife in his pocket and that she should give him all the money in the till. When she just stood there, SK produced the knife and showed it to her before putting it back in his pocket. She then placed in a bag all the cash in the till. SK took the bag as well as items from the store, including a handbag, watch, bracelet, bangles and necklace. Before leaving the store, SK told the shop assistant where he was staying and that he was robbing the store because he owed $2,000 to a member of an outlaw bikie gang. SK was arrested and charged on 6 October 2012. He admitted the robbery but falsely told the police that he had spinal cancer. He was granted bail on 2 November 2012. One of the bail conditions was that SK not attend the Gold Coast except for the purpose of any appearances in court there. In written evidence before the Tribunal, SK stated that he had no intention of using the knife.
The burglary, unlawful use of a motor vehicle, driving unlicensed and breach of bail offences were committed on 21 November 2012. SK was then aged 21 and on bail for the armed robbery offence. The circumstances of the offending are as follows. The victim of the burglary, CC, had advertised a Ferrari motor vehicle for private sale on the internet. SK contacted CC and arranged to view the vehicle at CC’s house. SK left CC’s house and sometime later made enquiries to purchase the vehicle from CC, but the sale was not completed. SK then returned to CC’s house and broke into it while nobody was home. He stole the keys to the Ferrari and drove it away from CC’s premises without CC’s consent. SK drove to the Gold Coast, in breach of a condition of his bail. At the time, SK did not have a driver’s licence. While SK was driving the Ferrari, he was involved in a minor traffic accident which resulted in some damage to the vehicle. The police attended and arrested him at the scene. He was charged and remanded in custody. He spent a total of 140 days (nearly 5 months) in custody.[26]
[26] The 140 days was made up of the period from 6 October 2012 until 2 November 2012 and the period from 21 November 2012 until 12 March 2013. SK was granted bail on 2 November 2012 and again on 12 March 2013.
SK pleaded guilty to all the offences described at [‎40] to [‎42] above. At the plea hearing on 2 June 2015 before Judge Richards at the Southport District Court, SK tendered a psychiatric report dated 30 May 2015 by Dr Michael Beech. That report relevantly stated:
(a)In relation to the fraud offence, SK told Dr Beech that he was duped by an associate into believing that the associate had a unit to rent and that the associate wanted SK to manage it for him while the associate was overseas.
(b)In relation to the offences relating to CC’s Ferrari, SK told Dr Beach that he wanted to take the Ferrari and drive off to start a new life, as he was experiencing tension at home due to the abusive behaviour of his uncle (NK).
(c)SK told Dr Beech that, after he was released on bail in 2013, he saw a psychologist for about six sessions over a four month period.
(d)Dr Beech diagnosed SK as suffering from an avoidant personality disorder and a form of adjustment disorder with mildly depressed and anxious mood. He said that SK’s 2012 offending appeared to be in in response to stress and difficulties in SK’s life and that, once these were absent, the risk of reoffending would be low. He noted that it seems that matters had improved and recommended that SK obtain psychological treatment, abstain from substances (including alcohol) and attempt to maintain employment.
Judge Richards sentenced SK on 2 June 2015 as follows:
(a)For the offence of armed robbery, SK was sentenced to 3 years’ imprisonment.
(b)For the offences of burglary and unlawful use of a motor vehicle, SK was sentenced to 2 years’ imprisonment, to be served concurrently with the sentence referred to in (a) above.
(c)For the fraud offence, SK was sentenced to 3 months’ imprisonment, to be served concurrently with the sentences referred to in (a) and (b) above.
(d)For the breach of bail offence, SK was convicted but no penalty was imposed.
(e)For the offence of driving without a licence, SK was convicted and disqualified from obtaining a driver’s licence for 6 months.
The orders for concurrency resulted in a total effective sentence of 3 years’ imprisonment. As at 2 June 2015, SK had served nearly 5 months on remand. Judge Richards decided that this was a sufficient custodial period and ordered that SK be immediately released on parole for three years.
In her sentencing remarks, Judge Richards referred to the ‘very difficult domestic circumstances that were operating to place [SK] under a lot of stress’ at the time of the offending, and stated that these circumstances gave ‘a different flavour to the offending’. Her Honour decided to immediately release SK on parole because of ‘the passage of time … the fact that [SK had not] committed [any] further offences in the meantime, and the unusual nature of the offending’.
SK contravened a DVO in the following circumstances. The DVO was issued by the Southport Magistrates Court on 5 May 2016 upon the application of Queensland Police. The DVO was in favour of DD, with whom SK was living in an intimate relationship at that time. The police applied for the DVO after they had attended SK and DD’s residence in response to a neighbour complaining that the occupants of the residence were arguing loudly. The DVO contained a condition that prohibited SK from contacting DD. The relationship between SK and DD ended two weeks after police issued the DVO.
Between 8 November 2016 and 11 January 2017, when SK was aged 25, he contravened the DVO by sending numerous text messages to DD. Only the messages covering the period from 8 November 2016 until 15 November 2016 were before the Tribunal. In broad terms, in those messages: SK professed his ongoing love for DD; emphasised how aggrieved he felt because she did not value him and had ended their relationship; stated how much he missed her; declared that he was a changed man; pleaded for another chance to make the relationship work; and expressed suicidal thoughts due to the breakdown of their relationship. The messages indicate that SK had travelled to a place where he believed DD would be present in order to see her, despite the fact that she had firmly told him not to do so.
At the remitter hearing before me, the respondent drew attention to the following messages from SK to DD:
[12 November 2016 at 12:50 pm] Wow and to think few weeks ago and since, we were talking and planning finally getting away from all the drama by going to Fiji.
[15 November 2016 at 10:13 am] You put a DVO against me and now I'm on probation but I still was there through everything ... why are you treating me like nothing now?
[15 November 2016 at 2:05 pm] Dad e-mailed me about my Passport. He said it should be ready within the next fortnight. He asked when are we planning on making the move. … This will be the last time you'll ever hear from me, the last time anyone will. I give up living. Please don’t tell anyone this.
[15 November 2016 at 2:57 pm] As the poison runs through my system, as I wait impatiently for death to come to me, I reminisce of the better days we had, and think fondly of the life we were making.
[15 November 2016 at 3:07 pm] I love you, even in death.
SK was charged with contravention of the DVO on 12 January 2017. On 2 February 2018, he pleaded guilty at the Southport Magistrates Court, was convicted and fined $750. In sentencing SK, Magistrate Kelly described the offending as involving ‘161 Facebook messages and a number of phone calls to [DD]’. The Magistrate said that the contact SK had made with DD ‘appears to be [borne] out of some sort of welfare, and then emotional upheaval about the relationship deteriorating’. During the plea hearing, in discussions with the prosecutor, the Magistrate stated the following about the messages: ‘there don’t appear to be any … threats, but they appear to be more emotional outpourings about the demise of the relationship’.
SK has not committed any offences either in Australia or Fiji since January 2017.

SK’s visit to Fiji and refusal of his visa application

SK continued to live in Australia after his offending and no steps were taken to revoke his permanent residency visa and deport him due to his offending. On 23 November 2018, when SK was 27, he departed Australia for Fiji to visit Mr Kumar over the Christmas-New Year period, intending to return to Australia in January 2019. In order to return to Australia, SK required a different type of visa, a return (residence) (class BB) visa. He applied for such a visa on 29 January 2019. On 31 January 2020, a representative of the Department of Home Affairs gave written notice to SK of an intention to consider refusal of his application under s 501(1) of the Act. In response to that notice, SK provided further information to the Department on 26 February 2020.
It appears that the further information included:
(a)a personal circumstances form completed by SK on 13 February 2020;
(b)a statutory declaration signed by SK on 25 February 2019;
(c)a statement signed by Mr Kumar on 25 February 2020;
(d)a character reference signed by Ms Kumar in around February 2020; and
(e)a letter written by SK on 23 February 2020.
As mentioned at [‎1] above, on 13 October 2020 the Delegate decided to refuse to grant a visa to SK.

EVIDENCE

SK relied upon the following written evidence:
(a)Statutory declarations signed by SK on 16 January 2019, 25 February 2019, 25 March 2021 and 14 September 2023, together with the personal circumstances form dated 13 February 2020. SK also relied upon an affidavit he affirmed on 14 April 2023 for the purposes of the appeal to the Full Court of the Federal Court.
(b)The statement signed by Mr Kumar on 25 February 2020 and his statutory declarations dated 17 March 2021 and 7 September 2023.
(c)The character reference signed by Ms Kumar in around February 2020 and statutory declarations signed by her on 6 April 2021 and 21 October 2023. SK also relied upon an affidavit Ms Kumar affirmed on 14 April 2023 for the purposes of the appeal to the Full Court of the Federal Court.
(d)A report of a forensic and clinical psychologist, Dr Bruce Stevens, dated 27 January 2021 and an updated report dated 2 August 2023.
(e)A report of forensic and clinical consultant psychologist, Dr James Freeman, dated 21 September 2023.
SK, Mr Kumar, Dr Stevens and Dr Freeman gave oral evidence. SK, Dr Stevens and Dr Freeman were cross-examined.
Krishneel did not provide a statement or give oral evidence.
The respondent did not call any evidence. He had requested that Ms Kumar attend the hearing to be cross-examined. However, she did not attend the hearing or provide any explanation for her failure to do so. Mr Kumar gave evidence that he met Ms Kumar in August 2023 in Australia and that she informed him that she did not wish to give oral evidence because she felt ashamed about what had happened within the family and that SK’s offending was mostly her fault. Mr Kumar stated that she also told him that she would become very emotional in discussing the difficult events of more than 10 years ago. Mr Kumar added that Ms Kumar had limited education and was concerned that cross-examination might affect her mental health.
As requested by the parties, I have read the transcript of the first Tribunal hearing in 2021. Some of the evidence given at that hearing and matters raised by the parties are no longer applicable because of changed circumstances. Otherwise, there was nothing new or helpful in the transcript. Accordingly, I will not summarise it or specifically refer to it.
The hearing before me concluded on 9 November 2023. On 24 November 2023, the parties advised the Tribunal that Mr Kumar died unexpectedly on 21 November 2023 from a previously undiagnosed heart condition, and that neither party wished to adduce any further evidence or make any further submissions in relation to this change in circumstances.

Findings on credibility, reliability and weight to be given to evidence

In response to questions from the Bench as to whether adverse credit findings should be made about any witness, the respondent stated that no such findings were sought. He stated that he did not make any submissions about the credibility of any witness or the reliability of their evidence.
The respondent’s concession was appropriate. Dr Stevens and Dr Freeman gave expert evidence in an authoritative, objective and balanced manner. I accept their evidence. As Mr Kumar was not cross-examined and gave evidence in a frank and sincere manner, I accept his evidence also. SK’s evidence had some unsatisfactory features, including his tendency to give lengthy and discursive answers, which were not always directly responsive to the questions asked of him. Also, some of his answers appeared to be rehearsed and some of his written evidence contained inaccuracies on matters that were within his knowledge.[27] However, he made many concessions and there was an underlying sincerity to his evidence, which was broadly consistent with the evidence of the other witnesses. In these circumstances, I accept SK’s evidence.
[27] By way of example, in statutory declarations dated 25 February 2019 and 25 March 2021, SK stated that he was aged 17 when he committed the offences of stalking and assault, whereas he was 19. By way of further example, in his statutory declaration dated 25 March 2021, he stated that he had been offered a position in a Griffith College diploma program, whereas the document before the Tribunal was not a letter of offer but an acknowledgement that SK had lodged an application.
In relation to Ms Kumar’s written evidence, the respondent submitted that I should place limited weight on it because she did not attend for cross-examination. The respondent indicated that, had Ms Kumar attended the hearing, she would have been asked about her observations that SK has matured over the last few years, how their relationship had changed over time, the effect that SK’s visa refusal would have upon their relationship and the likelihood that she would withdraw her support for SK as she had done in the past. These matters were said to be relevant to primary considerations 1 (protection of the Australian community from criminal or other serious conduct) and 3 (the strength, nature and duration of ties to Australia). In response to questions from the Bench, the respondent stated that it was not contended that I should draw an adverse inference that Ms Kumar’s evidence would not have assisted SK if she had attended for cross-examination, in accordance with the principles in Jones v Dunkel.[28]
[28] (1959) 101 CLR 298.
SK conceded that, as Ms Kumar did not attend for cross-examination, it was open to the Tribunal to give less weight to her evidence.[29] However, he contended that any reduction should be mitigated because her evidence does not raise any novel fact but corroborates other evidence that has been tested.
[29] SK relied upon Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5, [28], as indirect authority for the proposition that when a witness gives written evidence but does not attend for cross-examination, the appropriate approach is to reduce the weight applicable to that witness’ evidence.
In my opinion, Ms Kumar’s failure to attend for cross examination does not materially affect the reliability of her evidence or the weight to be given to it. That is so for four reasons. First, an explanation has been provided to the Tribunal by Mr Kumar for Ms Kumar’s absence, which I accept. Secondly, Ms Kumar’s written evidence appears to be entirely plausible. Thirdly, her evidence is broadly consistent with the evidence of SK and Mr Kumar. Fourthly, the topics for cross-examination identified by the respondent were unlikely to undermine the critical aspects of Ms Kumar’s evidence in support of SK’s case. They were that their relationship has grown closer in the past five years, that they would both be adversely affected if SK were not granted a visa, and that she is prepared to support him in his life in Australia if he were granted a visa.
In relation to the absence of any evidence from Krishneel, the respondent submitted that, in accordance with the principles in Jones v Dunkel, I should draw an inference that, had he given evidence, his evidence would not have assisted SK’s case.
The respondent submitted that in proceedings in the Tribunal which are more properly characterised as adversarial, it may be appropriate to apply the principles in Jones v Dunkel.[30] He also submitted, relying upon Statos v Tax Agents’ Board,[31] that the rule in Jones v Dunkel is a rule of common sense and that the Tribunal could apply the principles developed from the common law despite not being bound by the rules of evidence. Accordingly, the respondent contended that the Tribunal should infer that any evidence Krishneel might have given would not be favourable to SK. The respondent argued that, had Krishneel given evidence, he could have been cross-examined on the evidence of Mr Kumar that SK’s former partner (AA) was a friend of Krishneel, and that cross-examination might have cast doubt on the strength of Krishneel’s relationship with SK.
[30] The respondent relied upon Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555, 585 [116] and Howes v Comcare [2016] FCA 1521, [68].
[31] (1990) 21 ALD 437, 441 [34].
SK submitted that the principles in Jones v Dunkel were not applicable in the case of Krishneel’s failure to give evidence for three reasons. First, under s 33(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal is not bound by the rules of evidence. Secondly, Jones v Dunkel is not applicable because the Tribunal’s proceedings are essentially inquisitorial.[32] Thirdly, Jones v Dunkel does not permit the drawing of an adverse inference simply because of a failure to call a witness; the inference is drawn where facts are advanced which require an answer.[33] He contended that no facts are being advanced in this case that required an answer from Krishneel.
[32] SK relied upon Green v Minister for Immigration and Citizenship [2008] FCA 125, [41].
[33] SK relied upon Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100, 124.

It is not necessary for me to decide whether the principles in Jones v Dunkel are capable of applying to Krishneel. That is because, even if the principles are capable of application, the evidence that is before the Tribunal from the other witnesses relating to Krishneel would preclude an inference that his evidence would not have assisted SK. That evidence may be summarised as follows:
(a)Krishneel is two years older than SK. He is an Australian citizen and has lived permanently in Australia since 2008.
(b)Krishneel completed tertiary studies, works in the mining industry and is married.
(c)There has been a degree of strain in the relationship between Krishneel and SK. However, they are on talking terms and there has been some improvement in that relationship. When Krishneel visited Fiji on two occasions since 2018, the two brothers were cordial to each other.
(d)Krishneel is focused on his family and career and does not wish to be involved in SK’s legal proceedings.
(e)SK loves Krishneel as a brother and desires to improve their relationship.
The above evidence enables me to conclude that, whilst the relationship between SK and Krishneel is not close and may have ongoing difficulties, the two brothers are not estranged. Accordingly, there will be some adverse impact upon SK if he were not granted a visa and be afforded the opportunity for personal interaction with Krishneel in Australia with a view to improving their relationship. Although there is no basis for me to find that Krishneel will provide support to SK if he is granted a visa and returns to Australia, or that Krishneel would suffer if SK is not able to return to Australia, there is also no basis for me to conclude that if Krishneel had given evidence, it would have precluded findings to the effect set out at [‎69] above.

Evidence of SK

SK commenced his oral evidence by expressing regret, embarrassment and shame for his past offending. He is now far removed from the person who offended. In his youth, he took the opportunity to live in Australia for granted, but now understands that it is a privilege and not a right.
In examination-in-chief, SK stated that he would not offend again, as he has matured. He knows that he has already caused too much hurt and grief for too many people and this knowledge would act as a deterrent to reoffending. If an intimate relationship soured in the future, he would remove himself from the situation. He missed out on the opportunity to do things in Australia during the last five years of his life in Fiji and knew that that would not be the case if he had made better choices. He stated that, in his culture, he was brought up to respect his parents. He knows that, as a result of his offending, he will carry the shame of having disappointed his parents.
In examination-in-chief, SK described the family destabilisation caused by Ms Kumar’s relationship with his uncle, NK. It destroyed his sense of worth, self-esteem and self-confidence. He did not want to attribute blame for the armed robbery to the breakdown of his relationship with Ms Kumar, because that was his own stupid choice. He described the stealing of the Ferrari as being motivated by a desire to escape everything. He acknowledged that the armed robbery caused psychological hurt to the shop assistant and that, at that time, he had little to no regard for other people’s property and had acted selfishly.
In relation to the fraud offence, in oral evidence before the Tribunal, SK stated that he thought he was trying to help out a friend and that, once he was charged with fraud, he returned the money to BB through his legal representatives.
In examination-in-chief, SK agreed that some of his prior responses during the previous Tribunal hearing could have come across as minimising his offending. His intention was only to explain and clarify the offending, but the way he expressed himself could be viewed as minimising it.
In written evidence, SK stated that, in about 2015, he apologised to AA for his past actions, AA accepted his apology and they wished each other well. SK had made a similar statement to Dr Stevens in January 2021.
In cross-examination, SK acknowledged that some of the messages that he sent to DD in 2016 contained false information, including that SK was prepared to move to Fiji with DD and was intending to take his own life. He said that he was lying to her to make her feel bad or guilty and that he should not have done so.
In his statutory declaration dated 25 March 2021, SK stated that DD was attempting to extort money from him and his parents and so he messaged her to stop contacting his parents, after which an argument ensued between DD and him. SK later told Dr Freeman that, upon being told by police that DD was missing, he had initially contacted her in order to ensure that she was OK. He then continued to message DD, discussing their former relationship.
In cross-examination, SK stated that he had received some psychological support in around 2013 to 2014. He had spoken to a chaplain while he was on remand, following his arrest for burglary. When released on bail, he attended nine sessions with a psychologist. The psychologist did not complete a diagnosis, as SK did not attend a tenth session. On another occasion, while he was feeling very stressed, he had consulted a counsellor at the Salvation Army. In 2014, his general practitioner had prescribed him some medication, which he took for only a day or two due to its adverse side effects.
In cross-examination, SK was taken to the report of Dr Beech who, in May 2015, recommended that SK obtain psychological treatment, abstain from substances (including alcohol) and attempt to maintain employment.[34] He said that he did not take up those recommendations. He did not continue psychological treatment because he realised that, when he had family support, a lot of the stressors in his life started to fade away. He knew that, with his family’s support, if he ever needed therapy or counselling, he would seek it.
[34] See [‎43(d)] above.
SK gave evidence in cross-examination that he did not believe that he needed to abstain from alcohol because he now drinks seldomly, perhaps once a fortnight at a pub with a mate. In comparison, he previously used alcohol to self-medicate. He had not remained employed while in Fiji because of Covid-19 and he has been focused upon his legal proceedings.
SK gave evidence in cross-examination that he has identified that poor financial management led to some instances of offending and had taken steps to improve his financial management. Previously, he would struggle to establish boundaries with mates and would lend money or purchase things for his friends because he wanted people to like him. He now understands when it is OK to refuse to spend money on friends.
SK also gave evidence in cross-examination that he had completed a written relapse prevention plan with Dr Freeman. This involved setting boundaries for himself and other people, removing people from his life who are a negative influence and communicating his feelings with people. He developed coping strategies for when he was feeling stressed, such as watching a movie, reading a book, going for a walk and communicating more. He will use these coping strategies when he returns to Australia to ensure that he does not return to his previous behaviours. He will also be physically proximate to his family and seek their support. He is now more mature and the risk of not being able to stay in Australia would be a big deterrent.
SK gave evidence in cross-examination that he does not think a similar family breakdown in the future would lead to offending by him. That is because he is now more open to communication than he was previously and can talk to his parents, who will support him.
In examination-in-chief, SK stated that he had lived with Mr Kumar in Fiji since 2018. Mr Kumar had provided support in the form of accommodation, money and mentoring. The level of support provided by Mr Kumar was ‘tremendous’.
In examination-in-chief, SK stated that he had developed a good relationship with Ms Kumar since his uncle (NK) is ‘no longer in the picture’. They communicate every couple of days, mostly through messages, and have an openness to discuss family matters and his goals. He now has her support, which he did not have during the period of his offending. In cross-examination, SK stated that his relationship with Ms Kumar has improved since 2014–2015 and has remained positive despite him being in Fiji. It had not been easy to maintain a good relationship with her due to the physical separation, but they were able to maintain regular contact. Ms Kumar had not visited him in Fiji. He thought that, if his visa was refused, Ms Kumar would visit him perhaps once a year for a week or two.
In examination-in-chief, SK stated that his relationship with Krishneel has had its difficulties, but he loves his brother and they have attempted to improve their relationship over the past five years. He sends Krishneel a few messages every two months.
In his written evidence, SK stated that if he is not permitted to return to Australia and Mr Kumar resettles here, it would be devastating for him not being able to have a physical presence in the life of his mother, father and brother. He is concerned that the strength of his relationships with his family would significantly deteriorate if he is not able to have a physical presence in their lives.
In examination-in-chief, SK stated that he speaks to his aunt, MH, once or twice a fortnight, when she calls to speak to Mr Kumar. In cross-examination, SK stated that he speaks to MH’s son every few weeks. SK also has another cousin who lives in Australia, with whom he keeps in contact every few weeks. He has four very close friends in Australia, who are like brothers to him, with whom he speaks almost daily. He has other friends as well.
In cross-examination, SK stated that he sees his uncle, aunt and cousins who live in Fiji very rarely and does not stay in touch with them.
In his written evidence, SK stated that he intends to study a Diploma of Criminology and Criminal Justice at Griffith College, which would provide a pathway to undertaking a Bachelor of Law course at Griffith University. In examination-in-chief, he stated that he had not requested an invitation letter from Griffith College, but was sure that he would receive one if he requested one. In cross-examination, he stated that there were no pre-requisites to the Diploma. He also clarified that, whilst the Diploma allows entry into the second year of a Bachelor of Law course, entry is not guaranteed and he would need to apply for entry into that course through the Queensland Tertiary Admissions Centre.
In cross-examination, SK stated that he envisaged living with his father in Australia for a period before moving out into his own house. His living situation would depend on whether he was accepted into the course at Griffith College.
SK stated in examination-in-chief that, after completing a law degree, he wanted to practise as a lawyer and hoped to have his own corporate firm, or work at a reputable law firm. In cross-examination, SK stated that when he returns to Australia, he would like to work part-time in sales while studying. He has not applied for any jobs, as he is uncertain if and when he would be able to return to Australia. Mr Kumar had offered to financially support him for the first few months as he settles back in Australia.
In cross-examination, SK acknowledged that he does not have the same financial pressures in Fiji as he would in Australia. That is because he is not paying rent.
In examination-in-chief, SK stated that he feels very separated from people in Fiji and that, if he were not granted a visa, he would feel isolated and alone. In his written evidence, SK stated that he has experienced a deep sense of disconnection from Fijian culture, and has had difficulties communicating and making friends with people in Fiji. The living conditions there are worse than Australia and he had lost the sense of purpose he had when living in Australia. Australia is the country that he considers home and with which he has a deep sense of belonging.
In response to a question from the Bench about what he has been doing over the past five years in Fiji, SK stated that his main focus has been to get back to Australia. He worked for about two months at the beginning of 2019 but has not worked since.
In cross-examination, SK stated that he has had some casual romantic relationships in Fiji but none were long term. He acknowledged that he had some social contacts in Fiji but said that he had a lot more friends in Australia than Fiji, with whom he talked on a daily basis. He accepted that there are a handful of people with whom he has social connections in Fiji. He sees a family friend once or twice a week for dinner or for Kava, either at Mr Kumar’s house or at the friend’s house. He also sees another family friend and his daughters every several months. SK speaks to the daughters every now and then on Facebook but he does not see them very often because they live in a different part of Fiji and are busy with work.

Evidence of Mr Kumar

In oral evidence, Mr Kumar stated that his current intention was to retire from his judicial role and return permanently to Australia in early 2024. He intended to buy a property and look after SK. He had offered to let SK reside with him for as long as SK wished and to financially support him until he finishes the law course.
In oral evidence, Mr Kumar said that he had observed that Ms Kumar’s relationship with SK had improved. They talked often, and she provided emotional support for SK.
In oral evidence, Mr Kumar stated that there had been a degree of strain between Krishneel and SK because of SK’s offending, including the convictions for stalking and assaulting SK’s former partner (AA) who was a school friend of Krishneel. There was now not much strain between Krishneel and SK, as the brothers were on talking terms and had got on well when Krishneel last visited Fiji in December 2022. Krishneel had not provided a statement for the Tribunal hearing because he wants to keep to himself and did not wish to get involved in the hearing. If SK returns to Australia, the relationship between SK and Krishneel would improve. If SK is not permitted to return to Australia, he and Krishneel will have very little connection with each other and that will re-strain their relationship.
Mr Kumar gave oral evidence that, if SK were not permitted to return to Australia, SK would be very badly emotionally and mentally affected by, in effect, being marooned in Fiji without any family connections or people to support him. Mr Kumar would also be detrimentally affected and would be quite distressed by not being able to be close to his son. SK was not used to the customs and traditions of Fiji. SK has a lot of friends in Fiji with whom he socialises. SK had had one romantic relationship for two years, which ended when SK’s girlfriend left Fiji for New Zealand.
Mr Kumar gave oral evidence that SK had really grown up since the periods of offending. SK had matured and was now a different person. SK was really interested in pursuing a legal career.
In written evidence, Mr Kumar stated that his relationship with SK has significantly improved during the time they have lived together in Fiji. SK’s aspiration to become a lawyer will be a highly stabilising process for him. He had observed SK’s character develop and mature over the past five years. SK was aware of the impact of his choices, had reflected on his periods of offending and internalised a deep sense of personal responsibility and expressed deep regret for having caused harm. SK’s inability to return to Australia has had a notable impact on him. The centre of the Kumar family’s life is Australia. SK remains poorly accustomed to life in Fiji and has found adjusting to Fijian culture very difficult. He is concerned about the impact of SK’s long term separation on SK’s mental health and overall wellbeing.
In his written evidence, Mr Kumar stated that if the Delegate’s decision stands, it would cause him emotional detriment; it will be as though his family has been ruptured and lost and SK’s absence will be felt acutely.

Evidence of Ms Kumar

In her written evidence, Ms Kumar stated that she had remained in close contact with SK over the past five years, and that during this time SK had matured and grown into a thoughtful and considerate man. SK is remorseful for his offending and the impact it has had on the victims and SK’s family.
She expressed deep concern about the prospect that SK may be required to reside in Fiji without any family support or presence. The likely consequence of this would be that the family would not have the chance to see SK except on very rare occasions. This would have considerable long-lasting impacts on her and Krishneel. She is concerned that, if SK is not permitted to return to Australia, so that she can be physically part of his future, their relationship will be permanently diminished. This would be devastating for her.
Ms Kumar stated that, in the past few years, her relationship with SK has grown. She is very confident that the stress factors that were previously in his life are highly unlikely to return. She is committed to supporting and assisting SK should he be permitted to return to Australia. She anticipated being involved in his life and would support him through his studies.

Evidence of Dr Bruce Stevens

In examination-in-chief, Dr Stevens stated that he thought that SK presented a low risk of recidivism. He had family support, good insight into his offending and was genuinely remorseful. He did not have unusual or major risk factors such as serious alcohol abuse, drug addiction or youth offending. It was ‘about as positive a picture’ of someone who had previously offended that Dr Stevens had seen. It would be good for SK to live with Mr Kumar and work while in Australia, but even if he were unemployed or living alone, he would not fall into offending.
In examination-in-chief, Dr Stevens stated that SK’s offending occurred over a brief period and was contributed to by impulsivity and immaturity, which he had subsequently outgrown.
In cross-examination, Dr Stevens stated that he could not say that there was no risk of SK reoffending, as once a person had offended, one could not rule out them offending again. Whilst SK’s risk of reoffending was low or very low for offences involving ‘acting out behaviour’, offending involving texting a former partner had a different level of severity. It was a concern to him that SK had made returning to Australia his principal goal in life and was not seeking ongoing counselling. In re-examination, Dr Stevens stated that, compared to other people who had previously offended, SK presented with a low risk of reoffending. ‘Very low, actually’. However, he later clarified that the risk of SK offending in the context of an intense relationship – such as breaching a DVO – was possibly heading from the ‘very low’ category to the ‘low’ category.
In cross-examination, Dr Stevens clarified that when he stated that SK’s period of offending was relatively brief, he was not referring to the breach of the DVO.
In his 27 January 2021 report, Dr Stevens stated that during the period in which SK committed most of his offences, he faced considerable stress and it was a time in which he was low in mood and high in anxiety, self-medicating with alcohol and acting in an impulsive way. It appeared that SK’s judgment was adversely affected. During this period, SK suffered from an adjustment disorder with mixed anxiety and depressed mood. However, by January 2021, SK had recovered from this condition. Dr Stevens also considered that SK did not have a personality disorder or an antisocial personality.

In his 2 August 2023 report, Dr Stevens considered that SK had matured in emotional terms and was now more prosocial in general attitudes. SK had said that he now had more robust coping strategies and would not withdraw into himself and try to deal with stress in unproductive ways as he had done previously. Dr Stevens opined that SK was doing well in terms of his rehabilitation and had realistic goals for the future. Compared to an offending group, SK was at a low risk of reoffending in the future.
In his 2023 report, Dr Stevens referred to Dr Beech’s diagnosis in 2015 that SK had an avoidant personality disorder, and stated that he did not think that SK had an avoidant personality disorder in 2023, and possibly not ever. In examination-in-chief, Dr Stevens stated that he thought that SK had avoidant traits but they did not rise to the level of a personality disorder.

Evidence of Dr James Freeman

In examination-in-chief, Dr Freeman stated that SK was a young man who acted excessively and engaged in impulsive behaviours without thinking too much about the consequences. In cross-examination, Dr Freeman opined that SK’s risk of reoffending in a similar manner as his previous offending was significantly reduced and could be considered in the low category. That was because he has matured and desperately wants to return to Australia.
In examination-in-chief, Dr Freeman stated that SK had a sufficient level of insight and no cognitive deficiencies, which meant that he could recognise the deterrent effect of sanctions. The visa refusal would have a strong specific deterrent upon SK in relation to future offending, as he was a prosocial individual who could modify his behaviour in response to the threat of sanctions. By the threat of sanctions, he understood that SK would be aware of future consequences, were he to offend again.
In examination-in-chief, Dr Freeman gave evidence that SK did not have a lot of those classic factors which are known to be associated with criminality, such as lack of empathy, promiscuous sexual behaviour, lack of remorse, failure to take responsibility for his actions or living a parasitic lifestyle.
In cross-examination, Dr Freeman was asked about a statement he had made in his report dated 21 September 2023 that SK’s offending was primarily condensed over a three-month period. He did not put a lot of emphasis on the first group of offences committed by SK, as he had not experienced a penalty before committing the second group of offences. He did not place a lot of weight on the most recent offence of contravention of a DVO, as it was not a ‘hands on’ offence, where SK engaged in a brief period of non-consequential thinking, and so it did not change his overall risk assessment.
In his report, Dr Freeman stated that SK now had prosocial goals. He had been able to regain lifestyle stability and such stability was likely strengthened by participating in psychological consultations and the maturation process. Dr Freeman applied the Hare Psychopathy Check List (PCL-R), which is a test of psychopathy that is a reasonably accurate predictor of sexual and violent recidivism and is widely considered to be one of the most effective predictors of reoffending. Based upon the PCL-R, SK did not have psychopathic tendencies or exhibit elevated pathologies and his scores fell within a range that was considered to be representative of ‘low risk’ of recidivism.
In examination-in-chief, Dr Freeman stated that the PCL-R was a useful tool to identify a lot of factors which can indicate offending, whereas most actuarial tools used in this field seek to predict the risk of violence. These scales were not appropriate in SK’s case, as he had only committed one isolated incident of violence.
In examination-in-chief, Dr Freeman stated that it was extremely difficult to predict future human behaviour, and it was even more difficult to predict a person’s future behaviour in the context of relationship because that involved the behaviour of two people. He was not surprised that Dr Stevens had erred on the side of caution and assessed as low, rather than very low, the risk of reoffending in relation to offences such as a breach of a DVO. In cross-examination, Dr Freeman stated that it was not a primary concern to him that SK would commit further relationship-based offences. The weight of specific deterrence would be a very strong modifier of SK’s behaviour.
In his report, Dr Freeman stated that the origins of SK’s offending stemmed from his personality vulnerabilities such as low self-esteem and capacity to overreact to stressors, as well as his young age and immaturity. SK became emotionally distressed during the offending period while he had intense feelings of abandonment and had poor coping skills. SK had likely developed effective stress management skills through engagement in psychological consultations and he was aware of past vulnerabilities and was willing to accept past failings. At Dr Freeman’s request, SK had completed a relapse prevention plan which adequately demonstrated insight – particularly being able to identify triggers and high-risk situations to avoid – and intended coping strategies.

EFFECT OF MR KUMAR’S PASSING

As stated at [‎60] above, the parties advised the Tribunal that they did not wish to adduce any further evidence or make any further submissions in relation to Mr Kumar’s passing. This limits any specific findings by the Tribunal resulting from this change in circumstances after the hearing concluded. Of course, I cannot speculate. However, it may be readily inferred that:
(a)SK is now living in Fiji without any member of his immediate family being present there. All his immediate family – his mother and his brother – live in Australia.
(b)If SK is permitted to return to Australia, he will not be able to live with Mr Kumar in accommodation provided by Mr Kumar. SK’s proposed living arrangements in Australia are now unclear.
(c)SK will no longer have the benefit of mentoring by Mr Kumar.

PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
Provisions of Direction 99 relevant to primary consideration 1

In relation to primary consideration 1, para 8.1 of Direction 99 relevantly states as follows:
(1)When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizen in the expectation 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.
(2)Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
In considering the nature and seriousness of SK’s conduct, the Tribunal is required by para 8.1.1 of Direction 99 to have regard to the fact that the Australian Government and the Australian community view the following types of crime very seriously:
(a)violent and/or sexual crimes;
(b)crimes of a violent nature against women or children, regardless of sentence imposed; and
(c)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed.
In the context of the present case, further relevant matters to which para 8.1.1 of Direction 99 requires the Tribunal to have regard in assessing the nature and seriousness of SK’s conduct are as follows:
(a)the sentences imposed for the offences SK has committed, other than violent crimes against women or children and acts of family violence;
(b)the frequency of SK’s offending and whether there is any trend of increasing seriousness;
(c)the cumulative effect of repeated offending; and
(d)whether SK has re-offended since being made aware in writing about the consequences of further offending upon his migration status.
Paragraph 8.1.2(1) of Direction 99 states the following about the risk to the Australian community should a non-citizen commit further offences or engage in other serious conduct:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of potential harm increases. 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.
Paragraph 8.1.2(2) of Direction 99 relevantly provides that, in assessing the risk should a non-citizen commit further offences or engage in other serious conduct, the Tribunal must have regard (cumulatively) to:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account evidence on the risk of re-offending and rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)whether the risk of harm may be affected by the duration and purpose of the non-citizen’s stay and the type of visa for which application has been made.

Parties’ submissions on primary consideration 1

SK acknowledged that his offences were serious. However, he submitted that they fall towards the low end of the category of ‘serious offences’. He contended that there was no increasing trend of seriousness in terms of offending – he had not offended for almost seven years – and there had been a downward trend in the severity and frequency of his offending. Although he had minimised or obfuscated his offending in the past, he now acknowledges its seriousness.
SK argued that he had now cultivated a much deeper level of remorse and insight into his offending. He submitted that this evidence was consistent with the evidence of Dr Stevens and Dr Freeman that his expressions of remorse and insight were genuine and that he was a low risk of future offending. He contended that the insight, remorse and maturation once gained were not easily relinquished and, accordingly, the risk of future harm to the Australian community was low.
SK argued that, as indicated by his own evidence and that of the experts, the offences he committed in 2012 were reflective of a profound immaturity and impulsivity in conjunction with a deeply distressed state of mind resulting from some of the family upheaval that was occurring. According to SK, there was no apparent attempt to conceal those offences, as he had even given his address to the victim of the armed robbery.
SK submitted that the cumulative effect of his offending is at the lower end of the spectrum of effects from offences of the type he had committed.
SK contended that primary consideration 1 weighed at its most only slightly in favour of refusal of a visa.
The respondent submitted that SK’s offending was very serious, as it included violent crimes and crimes of a violent nature against women. He also referred to the fact that SK received a sentence of 3 years’ imprisonment for the offences of fraud, armed robbery, burglary, unlawful use of a motor vehicle, unlicensed driving and breach of a condition of bail, albeit that SK only served nearly 5 months of that sentence in prison. The respondent also submitted that the burglary was serious, as it was committed while SK was on bail and involved some premeditation. Breach of a condition of bail was said to demonstrate a disrespect for Australian laws by SK.
The respondent referred to the fact that SK’s offending spanned from 1 March 2010 until 11 January 2017 and was bookended by offences against intimate partners. He contended that SK is a repeat offender, as his offending was not isolated. He also contended that SK’s offending demonstrated a trend of increasing frequency.
The respondent submitted that the harm that would be caused to the Australian community from further offending by SK included physical, psychological and financial harm and, potentially, destruction of property.
The respondent acknowledged the opinions of Dr Stevens and Dr Freeman that SK posed a low risk of reoffending and that he had not offended since 2017. He also acknowledged the evidence that SK was now more mature and had insight and family support, which were protective factors. However, the respondent referred to the experts’ opinion that the risk of SK reoffending could not be excluded entirely, and contended that there was still some risk that SK might offend again, which would cause harm to the Australian community.
The respondent argued that SK’s breach of the DVO was serious because it was an incident of family violence and was committed after SK had had custodial sanctions imposed upon him, which did not deter him. According to the respondent, there was no evidence that SK had completed any programs directed at rehabilitation, and the counselling he attended in 2014 did not prevent him from reoffending.
The respondent submitted that, as the terms of Direction 99 deem SK’s offending to be very serious, primary consideration 1 weighs against SK.

Decision on primary consideration 1

SK’s offences and the conduct that gave rise to or constituted his offending have already been set out in detail at [‎35] to [‎51] above. I will not repeat those details here. For present purposes, the conduct and offences can be seen as falling into the following three periods:
(a)The period from 1 March until 15 October 2010, which relates to stalking and assaulting a former intimate partner, AA. SK was charged with those offence and gave an undertaking to appear in court, which he breached. On 31 December 2010, he was dealt with for the offence of failure to appear in accordance with an undertaking. He was found guilty, but no conviction was recorded and no penalty was imposed. On 11 May 2012, he was fined $800 for the offences of stalking and assault, with no conviction being recorded.[35] I will refer to the period from 1 March until 15 October 2010 as the ‘first offending period’.
(b)The period from 24 August until 21 November 2012, which relates to the commission of the offences of fraud, armed robbery, burglary, unlawful use of a motor vehicle, unlicensed driving and breach of a condition of bail. SK was arrested on 21 November 2012 and spent nearly 5 months in custody.[36] On 2 June 2015, he was convicted and sentenced to a total effective sentence of 3 years’ imprisonment. On that day, he was released on parole for 3 years. I will refer to the period from 24 August until 21 November 2012 as the ‘second offending period’.
(c)The period from 8 November 2016 until 11 January 2017, which relates to SK’s breach of the DVO obtained by the police on 5 May 2016 for the benefit of his former intimate partner, DD, following a domestic argument between them on 5 May 2016. The breach of the DVO was constituted by SK sending unwelcome text messages to DD. On 2 February 2018, SK was convicted of the offence of contravening a DVO and fined $750. I will refer to the period from 8 November 2016 until 11 January 2017 as the ‘third offending period’.
[35] The fact that no conviction was recorded does not preclude the Tribunal from taking into account the conduct constituting the two offences and SK’s pleas of guilty to those offences.
[36] See footnote 26 above for an explanation of the two periods that made up the time SK spent in custody.
As the offences of stalking and assault in the first offending period and the offence of contravention of a DVO in the third offending period meet the definition of ‘family violence’ in para 4(1) of Direction 99, they will be dealt with in detail under primary consideration 2.[37] For the purposes of primary consideration 1, it suffices to note that, whilst any form of family violence is by its nature serious – irrespective of whether the perpetrator is convicted of an offence and any sentence that was imposed for any such offence – SK’s offences fall on the low end of the spectrum of gravity for that type of offending.
[37] The definitions of ‘family violence’ and ‘member of the person’s family’ in para 4(1) of Direction 99 are set out at [‎158] below.
The armed robbery, burglary, unlawful use of a motor vehicle and fraud offences falling within the second offending period are undoubtably serious. By threatening the young female shop assistant with a knife in her workplace, SK showed a total disregard for her wellbeing. It would have been a terrifying experience for her. The burglary involved SK violating the sanctity of CC’s home and stealing CC’s car keys. He then drove away with CC’s expensive vehicle and, shortly afterwards, damaged it. The fraud involved taking advantage of an innocent individual, DD, seeking one of the necessities of life, namely, accommodation. All of these offences involved some pre-planning and struck at the heart of the entitlement of ordinary members of the Australian community to go about their everyday activities feeling that they and their property are safe from unlawful interference by others.
The other offences falling in the second offending period of unlicensed driving and breach of a condition of bail are not as serious as the armed robbery, burglary, unlawful use of CC’s Ferrari and fraud offences. Nevertheless, they are important because they indicate that SK was prepared to disregard the law.
I make the following observations in relation to the matters which para 8.1.1 of Direction 99 requires the Tribunal to have regard in assessing the nature and seriousness of SK’s conduct:[38]
(a)In relation to the sentences imposed for the offences SK has committed, other than the violent crimes against women and children and acts of family violence, all the sentences – except those imposed for some of the offences committed during the second offending period – were non-custodial and can only be described as very lenient. The total effective sentence that was imposed for the offences of armed robbery, burglary, unlawful use of a motor vehicle and fraud of 3 years’ imprisonment, with immediate release on parole after SK has served nearly 5 months, was very moderate.[39] That is so in the light of the serious nature of those offences and the maximum custodial sentence that applied to them, particularly the maximum penalty of life imprisonment for burglary.[40]
(b)Although SK committed multiple offences from 1 March 2010 until 11 January 2017, the offences were confined to three distinct periods. Further, SK was not found guilty of any of the offences more than once. The seriousness of SK’s offending increased significantly between the first and second periods but also decreased significantly between the second and third periods.
(c)Although the stalking and breach of the DVO offences involved repetition of the same conduct, SK was not found guilty of committing any of those offences more than once. Further, even if SK is treated as having committed repeated offending, there was no evidence about the cumulative effect of such offending.
(d)SK was never made aware in writing about the consequences of further offending upon his migration status.
[38]          See [‎126] above.
[39]          Although the armed robbery can be classified as a violent crime against a woman, it is difficult to exclude this offence from the combined total effective sentence.
[40]          The maximum penalties for the offences SK committed are set out in the footnotes to [‎35] above.

SK submitted that he has significant family ties to Australia, both with immediate family as well as significant further family members who would be affected by the refusal of a visa. That was said to be because the overwhelming majority of his family members were based in Australia. Accordingly, he contended that primary consideration 3 weighed very strongly in favour of granting him a visa.
The respondent acknowledged that Ms Kumar resided in Australia and that she and SK had a strong relationship which had improved in the past five years. The respondent did not dispute that the decision to refuse SK a visa would negatively affect his relationship with Ms Kumar. In addition, the respondent conceded that SK has maintained contact with his brother, aunt, cousins and four close friends who live in Australia. However, he submitted that the evidence suggested that SK does not have a strong relationship with his brother. He contended that SK would be able to maintain contact with Ms Kumar, other relatives and friends by social media even if he remains in Fiji, albeit that social media is not a substitute for face to face or physical contact.
The respondent contended that the weight to be given to primary consideration 3 should be moderated by the fact that SK began offending in 2010, which was only shortly after he returned to Australia to live on 27 June 2008.
Accordingly, the respondent argued that primary consideration 3 weighed moderately in favour of granting SK a visa.
In my opinion, SK has strong ties to Australia and now has a strong relationship with Ms Kumar, an Australian citizen who resides in Australia.
SK’s strong ties to Australia arise from the fact that he resided here during his formative years between the ages of 3 and 9, and in his early adult years between the ages of 17 and 27. He attended school in Australia, made friends and also engaged in employment. He formed romantic relationships, although two of them involved offending on his part when they ended. SK gave evidence to the effect that he considers himself more Australian than Fijian, and feels out of place in Fiji. If he is granted a visa, he intends to pursue legal studies with a view to practising as a lawyer in Australia. He sees his future in Australia rather than Fiji and would be devastated if he is not able to return to Australia. As I have already stated, I accept SK’s evidence.
SK’s relationship with Ms Kumar had broken down by 24 August 2012 and the circumstances giving rise to that breakdown were a causal factor in the commission of his offences in the second offending period. With the cessation of the relationship between Ms Kumar and SK’s uncle (NK), one of the underlying causes of the breakdown in the relationship between SK and Ms Kumar is no longer present. Both SK and Ms Kumar gave evidence that they now speak regularly and have grown close, with Ms Kumar being prepared to support SK if he is permitted to return to Australia. SK gave evidence, which I accept, that if he is not permitted to return to Australia to be with Ms Kumar, his relationship with her will suffer, and this would adversely affect him. In her written evidence, Ms Kumar stated that she would be adversely affected if SK is not able to return to Australia. Although Ms Kumar did not attend for cross examination, I have no reason to doubt her written evidence.
SK’s relationship with his brother Krishneel – an Australian citizen who lives in Australia – has been strained and they are not close. However, they are on amicable terms and SK desires to strengthen their relationship by being able to spend time with Krishneel in Australia. Although Krishneel did not give evidence, for the reasons discussed at [‎69] to [‎70] above, there is no basis for me to infer that if Krishneel had given evidence, that evidence would not have assisted SK’s case.
SK continues to maintain contact with four of his closest friends in Australia, some of his cousins who reside here and his aunt (MH) who also resides here. It can be readily inferred that his relationship with his friends, cousins and aunt will be strengthened if he is permitted to return to Australia.
Although SK will be able to maintain contact with his Australian relatives and friends by social media if he remains in Fiji, as acknowledged by the respondent, social media is not a substitute for face to face or physical contact.
As already discussed, Mr Kumar and SK lived together for the past 5 years and grew very close, with Mr Kumar providing financial assistance and career and other guidance to SK. Mr Kumar assisted SK to develop prosocial attitudes, including an ambition to study law and practise as a lawyer.
I accept that SK began offending on 1 March 2010, which was less than two years after he returned to Australia to live. In my opinion, this factor does not require any material moderation to the weight to be given to primary consideration 3. SK was 19 at the time of the 2010 offending, and he has not reoffended since 11 January 2017. As previously discussed, the evidence overwhelmingly supports the conclusion that SK now has the benefit of significant protective factors – including his strong ties to Australia and his keenness to return here to enjoy and strengthen those ties – that render the risk of reoffending as low.
During the time that SK has resided in Australia as a young adult, he contributed positively to the Australian community by engaging in employment and assisting charitable organisations.[51]
[51] See [‎29] above.
In my opinion, primary consideration 3 weighs against exercising the discretion to refuse to grant SK a visa. For the reasons I have given, I consider that it warrants very significant weight.

PRIMARY CONSIDERATION 5 – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

In relation to primary consideration 5 – expectations of the Australian community – para 8.5 of Direction 99 relevantly states as follows:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. 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.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a) acts of family violence; or
…
c) commission of serious crimes against women, children or other vulnerable members of the community … ; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against … vulnerable persons in the form of fraud… ;
…
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
SK referred to what he called the ‘tolerance principle’ in Direction 99. It appears that he was referring to the principle in para 5.2(5) of Direction 99, which is set out at [‎11] above. SK submitted that this principle provides that tolerance is on a spectrum which rises and falls depending upon the length of time that the individual has spent in Australia. He contended that there should be a medium level of tolerance of his offending given that he had spent nearly half his life in Australia. SK argued that, whilst his offending was serious, it had not had a catastrophic cumulative effect upon the community and therefore primary consideration 5 was a neutral consideration.
The respondent referred to para 8.5(2) of Direction 99, which is set out at [‎189] above. He submitted that the fact that SK had committed crimes of a violent nature and had engaged in acts of family violence meant that, notwithstanding the tolerance principle, primary consideration 5 weighed against granting SK a visa.
In my opinion, SK has engaged in serious conduct in breach of the Australian community’s expectation that he will obey Australian laws while in Australia. He did so by committing:
(a)acts of family violence, namely stalking, assault and contravention of a DVO;
(b)two crimes of violence, namely assault and armed robbery. The armed robbery was a serious crime involving violence against a 21-year-old female shop assistant; and
(c)other serious crimes, namely burglary, unlawful use of motor vehicle and fraud.
In accordance with para 6 of Direction 99, primary consideration 5 is to be informed by the principles in para 5.2.[52] In this case, the tolerance principle in para 5.2(5) is particularly relevant. SK commenced living in Australian from the very young age of 3 and spent almost half his life here, including his formative years. Indeed, prior to his last departure from Australia on 23 November 2018, he had spent most of his life in Australia and would have continued to do so if he had been able to carry out his plan to return here in January 2019.
[52] See [‎12] above.
Having regard to the seriousness of SK’s offending as summarised at [‎192] above and the circumstances summarised at [‎193] above and the tolerance principle in para 5.2(5) of the Direction, I am of the opinion that Australia will generally afford a higher level of tolerance for SK’s offending.
In my opinion, primary consideration 5 weighs in favour of exercising the discretion to refuse to grant SK a visa. For the reasons I have given, it warrants low to moderate weight.

OTHER CONSIDERATIONS

Paragraph 9.2 of Direction 99 states the following:
Decision-makers must 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.
As discussed at [‎15] above, this consideration does not apply in the present case because SK is not presently in Australia facing the risk of removal, but is in Fiji seeking to overturn the Delegate’s decision, which has prevented SK from returning to Australia. Although SK did not expressly rely upon this consideration, in the material in support of the application for review there are references to the difficulties faced by SK in Fiji, which are similar to some of the matters set out in para 9.2 of Direction 99. As the Full Court Decision confirmed,[53] the fact that a consideration is not expressly covered by Direction 99 does not mean that it cannot be taken into account if it is relevant to the exercise of the discretion conferred by s 501(1) of the Act and has been raised before the Tribunal. In these circumstances, it is appropriate for me to consider whether SK will face any impediments in Fiji if he is not permitted to return to Australia.
[53] See [‎16]–[‎17] above.
SK referred to the fact that he did not have a strong support network from his family in Fiji, other than Mr Kumar. He submitted that not being permitted to return to Australia would have catastrophic effects on him as he would be effectively marooned outside of Australia without any familial support. The respondent submitted that, as SK has lived in Fiji for the past five years, the extent of impediments he will suffer are not relevant in the present case.
In my opinion, in comparison with his strong ties to Australia, SK does not have strong ties with Fiji. An uncle and aunt and some cousins live in Fiji, but they are located in another city and SK does not have regular or close contact with them. SK has not been able to form close friendships in Fiji in the same way that he did in Australia and has no ongoing romantic relationships. He has not engaged in any long term employment or pursued any further study. He had been dependent on Mr Kumar for accommodation and financial support, and is likely to face difficulty if he is forced to support himself financially. There is uncontradicted evidence that SK has little affinity with Fijian culture and thus will face cultural barriers if he is required to remain in Fiji. SK’s ties with Fiji, such as they were, are now significantly diminished due to the passing of Mr Kumar. SK is now without any immediate family member in Fiji.
However, SK is young and healthy and there is no evidence to suggest that the housing, medical and other social services available in Fiji are such that would prevent him from maintaining basic living standards there. Also, although SK has not made any notable close friends in Fiji, he has formed some romantic relationships and has some relatives there, albeit that they do not reside in Suva. He has also engaged in some work and there is no evidence to suggest that he would be incapable of seeking work in the future in order to support himself. He would not be completely isolated if he is not permitted to return to Australia.
The other consideration of the impediments SK might face if he remains in Fiji weighs against exercising the discretion to refuse to grant him a visa. For the above reasons, I consider that it warrants very limited weight.

OUTCOME

SK submitted that, in exercising the discretion in s 501(1) of the Act, it was relevant for the Tribunal to consider the extent to which his life, his hopes and dreams – all of which were inextricably tied up with his family and his sense of self and identity – were derailed by periods of turbulence and emotional upheaval, which were catastrophically affected by poor judgement. In that context, it was said to be relevant that his moral character has grown and he has taken steps to rectify the situation and bring his life back on track.
SK contended that, aside from the turbulent periods where he had exercised poor judgement and had offended, the balance of his adult life had been offence-free. He argued that the consequences of his visa refusal upon his family’s cohesion, his ability to remain supported and to pursue prosocial goals would be very severe. It was said that it would not be appropriate for his brief periods of offending to overwhelm the severe adverse impact a visa refusal would have upon SK and his family.
According to SK, the strength, nature and duration of his ties to Australia weighs very strongly in favour of granting him a visa. The considerations of protection of the Australian community and family violence weighed slightly in favour of visa refusal, if not neutral. It was said that the expectations of the Australian community weighed neutrally, as the community would afford some tolerance to SK in recognition of the length of time that he had spent in the Australian community. He therefore submitted that the discretion in s 501(1) of the Act should not be exercised to refuse to grant him a visa.
The respondent submitted that primary considerations 1, 2 and 5 weighed against SK being granted a visa and that, together, they outweighed any other considerations which weighed in SK’s favour.
Having assigned particular weight to primary considerations 1, 2, 3 and 5 and the other consideration dealing with the extent of impediments, I am now required to undertake the process of weighing and balancing described at [‎18] above in order to determine whether the discretion conferred by s 501(1) of the Act should be exercised to refuse to grant SK a visa.
Although the offences SK committed in the second offending period were of a serious nature, he committed them when he was relatively young and under considerable personal stress. He committed all his offences in three distinct periods rather than on a regular basis and there was no escalation in the gravity of his offending since the second offending period. As previously explained, the stressful events SK experienced related to Ms Kumar, which contributed to the commission of the offences in the second offending period, have ceased and he now has the support of Ms Kumar as one of many protective factors. Significantly, SK has not committed serious offending of the type he committed during the second offending period for over 10 years and has not committed offences of any kind either in Australia or in Fiji since January 2017.
In relation to SK’s family violence offences, I am mindful of principle 6 in para 5.2 of Direction 99 set out at [‎11] above. That principle refers to family violence as an example of certain conduct whose inherent nature 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. However, I am also mindful of the reference to proportionality in para 8.2(1) of Direction 99, which I discussed at [‎172] above. In the present case, for the reasons previously given, the family violence offences SK committed in the first and third offending periods were on the low side of the spectrum of gravity. There is also no evidence of any enduring physical or other harm to the two victims. SK has developed some maturity and insight regarding appropriate behaviour when an intimate relationship breaks down. There is no evidence that any of his romantic relationships in Fiji have resulted in family violence of any form.
In relation to SK’s family violence and non-family violence offences, I am satisfied that SK now has the benefit of significant protective factors, including increased maturity, insight into his offending, a focus upon further education and a career in the law, and the support of Ms Kumar. SK’s strong ties to Australia and his keenness to return here to enjoy and strengthen those ties is also an important protective factor. The protective factors provide a basis for confidence that SK will maintain prosocial attitudes and deter him from any further offending. The expert evidence of Dr Stevens and Dr Freeman that there is a low risk of SK reoffending is a very important consideration in his favour.
The strength, nature and duration of SK’s ties to Australia are also a very important consideration in SK’s favour, and are reflected in the very significant weight I have assigned to them against the exercise of the discretion to refuse to grant him a visa. The impediments that SK will face if he remains alone in Fiji add some, albeit very limited, weight against the exercise of that discretion.
Although the Australian community would expect that SK not be granted a visa due to his offending, the length of time SK has spent in Australia has the effect of moderating the weight to be assigned to this primary consideration.
The strength of SK’s ties to Australia and the impediments he perceives he faces in Fiji have resulted in SK developing what can be described without exaggeration as a desperation to return to Australia to enjoy and strengthen those ties. This strong desire to return to Australia, together with the other important protective factors supporting SK, provide a very powerful incentive for him not to reoffend in any form, including family violence. That is why primary consideration 3 has had a moderating effect upon primary considerations 1 and 2 to the extent already discussed in relation to each of those considerations. Primary consideration 3 also intersects with primary consideration 5 by moderating the weight to be assigned to it, as set out at [‎211] above. For these reasons, weighed and balanced against primary considerations 1, 2 and 5, primary consideration 3 is the predominant consideration in the present case.

Having undertaken the required process of weighing and balancing, in the light of all the circumstances of the present case, I am of the opinion that the discretion conferred by s 501(1) of the Act to refuse to grant SK a visa should not be exercised.

CONCLUSION

Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration with a direction that the discretion conferred by s 501(1) of the Migration Act 1958 to refuse to grant Shivneel Kumar a visa should not be exercised.
I certify that the preceding 214 paragraphs are a true copy of the written reasons for the decision of the Hon Justice Kyrou, President
.....................[SGD].............................
Associate:
Dated: 7 December 2023
Dates of hearing:  8 and 9 November 2023
Solicitor-Advocate for the Applicant:          Mr S Mason
Solicitors for the Applicant:  Corney & Lind Lawyers
Solicitor-Advocate for the Respondent:     Ms E Letcher-Boldt
Solicitors for the Respondent:  Clayton Utz

Initials/pseudonym	Individual concerned
SK	Shivneel Kumar, the visa applicant.
MH	Mr Kumar’s sister (SK’s aunt) who lives in Australia. Mr Kumar is SK’s father.
NK	Mr Kumar’s brother (SK’s uncle) who lives in Australia and with whom Ms Kumar had an intimate relationship. Ms Kumar is SK’s mother.
AA	SK’s former partner who was the victim of SK’s stalking and assault offences.
BB	The victim of SK’s fraud offence.
CC	The victim of SK’s burglary offence.
DD	SK’s former partner who was the victim of SK’s contravention of a domestic violence order.