Law and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Law and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1994 (29 June 2021)
Division:GENERAL DIVISION
File Number: 2020/1263
Re:Kwok Kam Law
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member Theodore Tavoularis
Date:29 June 2021
Place:Brisbane

The decision under review is affirmed.
...........................[sgd]............................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Partner (Residence) (Class BS) (subclass 801) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – decision under review affirmed.
Legislation
Acts Interpretation Act 1901 (Cth)
Family Law Act 1975 (Cth)
Migration Act 1958 (Cth)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Cases
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Jagroop and Minister for Immigration and Border Protection (2016) 241 FCR 461
Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548
Minister for Home Affairs v Buadromo (2018) 267 FCR 320
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Secondary Materials
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Decision
Reasons For Decision
Background
The procedural trajectory of the matter pre-remittal
Issues
Does the Applicant pass the character test?
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
The principles in paragraph 5.2
The Primary and Other Considerations
PRIMARY CONSIDERATION 1 – Protection of the Australian Community
Application of Factors in Paragraph 8.1.1(1) of the Direction
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant’s contentions
Factors indicative that the Applicant’s risk of recidivism has not changed
Conclusion on risk
Conclusion: Primary Consideration 1
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Who are members of the Applicant’s family?
The Applicant’s Wife?
The Applicant’s children
Did any of the Applicant’s conduct constitute family violence?
Verbal argument on 30 April 2010
Incident on 26 October 2010
Physical incident on 1 February 2011
Incident on 11 April 2011
Incident on 26 January 2012
Incidents in March 2013
Incident on 22 December 2013
Incident on 30 July 2018
Assessment of the seriousness of the Applicant’s family violence
Conclusion: Primary Consideration 2
Primary Consideration 3: The Best Interests of Minor Children in Australia
Identification of relevant children
Consideration of factors
Conclusion: Primary Consideration 3
Primary Consideration 4: The Expectations of the Australian Community
Analysis – Allocation of Weight to this Primary Consideration 4
Conclusion: Primary Consideration 4
Other Considerations
(a) International non-refoulement obligations
(b) Extent of Impediments if Removed
(c) Impact on victims
(d) Links to the Australian Community
Strength, nature and duration of ties
1. Impact of non-revocation on the Applicant’s immediate family
2. Strength, nature and duration of “other ties” – length of residence
3. Strength, nature and duration of “other ties” – family and other social links
Impact on Australian business interests
Weight allocable to Other Consideration 4: links to the Australian community
Findings: Other Considerations
CONCLUSION
Is there another reason to revoke the cancellation of the Applicant’s visa?
Decision
Reasons For Decision
Senior Member Theodore Tavoularis
29 June 2021
Background

Kwok Kam Law (“Applicant”) is a citizen of Hong Kong who held a Partner (Residence) (Class BS) (subclass 801) visa (“visa”). His visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (“Act”). He made representations requesting the revocation of the mandatory cancellation to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister” or “Respondent”). A delegate of the Respondent refused to revoke the mandatory cancellation under s 501CA(4) on 6 February 2020. The Applicant applied for review of that decision to this Tribunal.
The procedural trajectory of the matter pre-remittal
The procedural trajectory of the matter is amply recounted in the Respondent’s Statement of Facts, Issues and Contentions (“SFIC”).[1] Importantly, the decision giving rise to the instant remittal hearing has resulted from the second mandatory cancellation of the Applicant’s visa.
[1] R1, 1[3]–2[8].
The Applicant’s first visa cancellation occurred on 30 October 2017. The Applicant agitated against that first cancellation and achieved a successful outcome because on 1 December 2017 his visa status was restored to him by a delegate of the Minister.
The second mandatory cancellation occurred on 18 March 2019. The Applicant applied to this Tribunal for review of that second mandatory cancellation decision on 5 March 2020. On 25 May 2020, this Tribunal made the decision that was the subject of the remittal order culminating in this particular remittal hearing.
This remittal hearing proceeded before me on 6 and 7 May and 2 June 2021. The Tribunal received both written and oral evidence. At the hearing, an Exhibit List was agreed upon by the parties. A true and correct copy of that Exhibit List is attached to these reasons and marked Annexure A. The Tribunal also received oral evidence from the Applicant plus four additional witnesses. A true and correct list of those witnesses is included in the Transcript. At the conclusion of the hearing, I made certain further directions involving the filing of written closing submissions as well as setting the matter down for a half-day hearing for the making of additional oral submissions by way of closing arguments. A true and correct copy of those further directions is attached and marked Annexure B.
Issues
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this sub-section provides that:
(4)       The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
As mentioned, the Applicant has previously made the necessary representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[2]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[3]
[2] (2018) 267 FCR 320.
[3] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 [38] (North ACJ); Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548 [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal is compelled to find that the cancellation of the Applicant’s visa must be revoked.[4] I will address each of these grounds in turn.
[4] (2018) 267 FCR 320 [21].
Does the Applicant pass the character test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant has been sentenced to terms of imprisonment which cumulatively total something like 3 years.[5] There can be no question that he does not pass the character test pursuant to s 501(6)(a) of the Act. It follows that he cannot rely on s 501CA(4)(b)(i) of the Act for the revocation of the mandatory cancellation.
[5] See [‎44], below.
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction” or “Direction 90”) has application.[6] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
“Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”[7]
[6] Direction 90 commenced on 15 April 2021. It revokes Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
[7] Direction, paragraph 6. See also Direction, paragraph 4(1) which provides that “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
The principles in paragraph 5.2
Paragraph 5.2 of the Direction is designed to “provide a framework within which decision-makers should approach their task” under s 501 or 501CA, as the case may be. Summarised where appropriate, the principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.
(2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
The Primary and Other Considerations
Paragraphs 8 and 9 of the Direction respectively stipulate four “Primary Considerations”, and four “Other Considerations” which I must be guided by in making my decision.
The Primary Considerations I must take into account are:
“(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.”[8]
[8] Direction, paragraph 8.
The Other Considerations which, where relevant, I must take into account “include but are not limited to”:
“a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests”[9]
[9] Direction, paragraph 9(1).
Paragraph 7 of the Direction also provides guidance as to how to take into account each primary and other consideration. Briefly summarised, the Direction instructs decision-makers that:
(1)information from independent and authoritative sources should be given appropriate weight;
(2)Primary Considerations should “generally” be given greater weight than Other Considerations; and
(3)One or more Primary Considerations may outweigh other Primary Considerations.
The guidance in paragraph 7 I have quoted above does not differ materially from the guidance which appeared in former directions. Colvin J said of the former Direction 65 that:
“…Direction 65 [a predecessor to Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
I will now turn to addressing the abovementioned Primary and Other considerations.
PRIMARY CONSIDERATION 1 – Protection of the Australian Community
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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.
Application of Factors in Paragraph 8.1.1(1) of the Direction
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
I have considered the material for the purposes of isolating conduct that could now be asserted to be “violent”. The three offences I have found which might amount to violence occurred, respectively, on 24 November 2016, 25 May 2017, and 9 January 2019. While those incidents may have involved a level of physical interference that evolved into violence, none of those instances of physical interference resulted in the Applicant being convicted of an offence of violence. I do not propose to ignore these three incidents for the purposes of these reasons. Instead, I will refer to these three incidents later in these reasons when giving consideration to whether the Applicant’s crimes have been committed against either vulnerable persons or government representatives or officials in the performance of their duties.

Accordingly, I am of the view that the correct finding in relation to the abovementioned three incidents (and the Applicant’s conduct generally) is that his offending cannot be said to involve convictions for violent or sexual “crimes”. It would therefore be unsafe to rely on this conduct for the purposes of determining weight allocable to this sub-paragraph 8.1.1(1)(a)(i) of the Direction.
I have similar comments to make with reference to the extent to which the Applicant’s offending conduct is relevant to the exercise of assessing allocable weight pursuant to this sub-paragraph 8.1.1(1)(a)(ii). As will be gleaned from my discussion of the immediately following sub-paragraph of the Direction, there can be no question that the Applicant has displayed and committed violent conduct against his spouse and, potentially, their children. Once again, this conduct has not led to any convictions for actual crimes of a violent nature “against women or children”. It would therefore be unsafe to rely on this conduct for the purposes of determining weight allocable to this sub-paragraph 8.1.1(1)(a)(i) of the Direction.
I turn now to a consideration of weight allocable to paragraph 8.1.1(1)(a)(iii) of the Direction. The Applicant has committed numerous acts of family violence, which I have detailed in my consideration of Primary Consideration 2.[10] This family violence, beyond any shadow of doubt, duly engages paragraph 8.1.1(1)(a)(iii) of the Direction. This militates in favour of a finding that the range of the Applicant’s conduct must be found to be “very serious” for the purposes of this Primary Consideration 1.
[10] See [‎121]–[‎159], below.
Taking into account all of the evidence, I find that sub-paragraph (a) of paragraph 8.1.1(1) of the Direction militates very strongly in favour of a finding that the Applicant’s conduct has been of a very serious nature.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.
As best as I understood the material, there is no contention from the Respondent that the Applicant’s conduct attracts the operative effect of any of the abovementioned sub-paragraphs (i) and (iv). I will now proceed to consider the extent to which sub-paragraphs (ii) and (iii) have application and, consequently, the weight (if any) allocable to these two sub-paragraphs.
Sub-paragraph (ii) has application to the instant facts because there are numerous instances where the Applicant has sought to directly challenge the lawful authority represented by the police who have attempted to deal with him in the performance of their duties.
The material discloses at least three instances where the Applicant’s conduct attracts operation of sub-paragraph 8.1.1(1)(b)(ii).
First, on 9 June 2016, in the course of being dealt with by police for certain conduct reasonably suspected by the police to involve driving a motor vehicle while under the influence of alcohol, the Applicant became involved in conduct that resulted in a conviction for “resist or hinder police officer in the execution of duty”[11] at the Downing Centre Local Court on 24 November 2016:
“As Constable [redacted] began searching the accused, he attempted to push off from Police and move away. The accused was leant against the Police vehicle and Police again tried to search the accused. The accused again moved off the vehicle and turned to face Police in an aggressive manner.
Constable [redacted] then took hold of the accused in an attempt to control him however he immediately became extremely violent, throwing his arms around, kicking out at Police and pushing away. The accused attempted to get back into the driver's seat of his vehicle, however he was pulled out by Police.
The accused again became extremely violent, kicking out at Police, attempting to punch Police and swearing. The accused was told to, "Stop resisting" however he continued to be extremely violent, thrashing his body around.
The accused attempted to grab the gun of one Police officer, before then taking hold of a Police radio and removing it from it's holster on the person of the Police officer. Police continued to try to bring the accused under control, however he continued to be extremely violent and aggressive.
Police managed to hold the accused against the Police vehicle, where a one second burst of Oleoresin Capsicum (OC) spray was deployed to the face of the accused.
The OC spray had little effect on the accused, who continued to be violent. Police managed to get the accused on the ground, where Police had to hold him down until further Police arrived to help. The accused continued to resist Officers whilst on the ground, resisting any attempts to handcuff him and continuing to be violent.
Further Police arrived at the scene, where the accused was eventually handcuffed. During the handcuffing process the accused continued to violently resist Police despite numerous instructions to "Stop resisting".
The accused was then searched on the ground before being placed in the rear of the Police caged vehicle.”[12]
[11] T1, 29.
[12] T1, 290–294. See also T1, 330–333 comprising two statements from the relevant police officers’ corroborating the abovementioned police statement of facts.
Second, on 8 December 2016, the Applicant again challenged the lawful authority represented by the police after they asked him to pull over based upon a suspicion that he was driving while under the influence of alcohol. This was in fact the case because a roadside breath test indicated that he was driving at nearly twice the legal limit. His resistant conduct arose after he was placed under arrest. When police escorted him to the rear of the caged vehicle for transporting to police custody, the following ensued:
“Once the Accused was placed under arrest, police escorted him to the rear of the police caged vehicle. The accused was informed that he would be submitted to a search before being placed into the police vehicle. The Accused has then pushed past police and started to run across Frederick Street.
[…]
While interacting with police the accused was uncooperative and failed to comply with instructions through out the incident. The accused had to be given directions on numerous occasions, which he eventually complied with, indicating that he understood but chose not to comply. While in the rear of the police vehicle the Accused continually spat on the floor and was observed by police attempting to induce vomiting by putting his fingers down his throat.”[13]
[13] T1, 286–287.
The Applicant was dealt with for this conduct at the Bankstown Local Court on 25 May 2017. He was convicted on a charge of “resist officer in execution of duty”.[14]
[14] T1, 28.
Third, on 23 December 2018, while on regular patrol in an area of Sydney, the police noticed the Applicant’s vehicle “struggling to remain in its lane and decided to stop the vehicle for the purposes of submitting the driver to a breath test”.[15] On this occasion, the Applicant’s challenge to the authority of the police commenced before they pulled him over:
“[…] the driver who will now be referred to as the accused, turned the vehicles headlights off and increased his speed to about 70km/h in the 50km/h zone, at which point police-initiated pursuit number 18/2682. The accused moved to the incorrect side of the road and remained there for the entire distance of Beresford Avenue. As the accused approached the intersection of Stacey Street he was faced with a clearly visible red light. The accused barley slowed and proceeded through the red light attempting to turn left Stacey Street. The accused was travelling too fast for the weather conditions and understeered across two lanes before colliding heavily with a concrete traffic divider and mounting it momentarily. The accused then returned to the roadway before the vehicle suffered some form of mechanical failure in the steering and the vehicle veered hard right again travelling over the concrete divider across three oncoming lanes and collided heavily with a concrete wall. The accused did not brake prior to impact and was travelling no less than 50km/h which caused major damage to the front of the vehicle.”[16]
[Errors in original]
[15] T1, 306.
[16] T1, 306–307.
The next component of this offending episode occurred when the police sought to render assistance to the Applicant and to remove him from his vehicle that he had crashed. Even while trying to assist him, the Applicant interfered with and resisted the police:
“Police attempted to remove the accused via the passenger door however he continued to resist police and attempted to hold onto the steering wheel. After a short struggle the accused was removed from the vehicle and placed on the ground.
Once on the ground the accused put his hands under his body and refused to place them behind his back. The accused was given a number of verbal commands to place his hands behind his back however refused. Police applied a number of knee strikes to the accused before he was brought under control.”[17]
[17] T1, 307.
The final instalment of this episode of his conduct occurred after the Applicant had been conveyed to the local police station. He feigned illness and/or sleep when the police sought to read certain of his rights to him. His conduct was such as to cause police to involve an ambulance so that they could complete their necessary tasks arising from the offending:
“The Custody Manager attempted to read the accused his rights under part 9 of LEPRA, however the accused refused to listen and pretended to sleep. Police then attempted to submit the accused to a breath analysis however he rolled off his chair and onto the floor requesting to go to Hospital before pretending to be asleep. As a result an Ambulance attended the Police Station a short time later and the accused was checked over. Whilst speaking with Ambulance staff the accused was alert and coherent stating he just didn't like police and wanted to go to Hospital. The Ambulance staff were unable to find any issues with the accused and found him to be healthy and not requiring any treatment of hospitalization.”[18]
[18] T1, 307–308.
There can be little said to cavil with the finding that the Applicant’s conduct represented a brazen and ultimately unlawful challenge to their lawful authority. In terms of the Applicant’s demeanour towards the police, the facts sheet noted that “[w]hilst dealing with the accused, he was uncooperative at every occasion and refused to follow every instruction.”[19] This conduct came before the Bankstown Local Court on 9 November 2019 and saw the Applicant convicted on respective charges of “resist officer in execution of duty” and “police pursuit – not stop – drive dangerously”.[20]
[19] T1, 308.
[20] T1, 27.
I have no hesitation in allocating a very strong level of weight to this sub-paragraph 8.1.1(1)(b)(ii) in favour of a finding that the Applicant’s conduct has been (at the very least), “serious”.
With specific reference to sub-paragraph 8.1.1(1)(b)(iii) of the Direction, I am mindful of the reference to “any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion”. The Respondent has not propounded this component of the Direction. In the SFIC filed on his behalf, there is no reference to this sub-paragraph of the Direction.[21]
[21] A1, 8, footnote 24.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker to consider the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. Its terms are expressed thus:
“With the exception of the crimes or conduct mentioned in sub-paragraph (a)(ii) and (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes”
[My emphasis and underlining]
This sub-paragraph (c) is thus expressed to have no application to sentences imposed for offending which attracts the operation of sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction. To my mind, this means that whatever sentence is imposed on an offender for the commission of crimes falling (for present purposes) within the ambit of (a)(ii) or (a)(iii), that offending must be viewed as “very serious” for the purposes of paragraph 8.1.1(1) of the Direction, even if the sentence imposed was at the low end of the range for that type of offending.
It is therefore necessary to look through the Applicant’s offending history and to assess the sentences imposed upon the Applicant for crimes not captured by those specific sub-paragraphs – (a)(ii)–(iii) and (b)(i). As I have understood it, the balance of the Applicant’s criminal history in Australia has resulted in the following custodial terms:

Court Date Offence Imprisonment (months) Other notes

5-Sep-17 Resist officer in execution of duty 3 Called up

5-Sep-17 Resist or hinder police officer in the execution of duty 2 Called up

13-Dec-17 Drive motor vehicle during disqualification period (2nd offence) 12 (After reduction on appeal)

9-Jan-19 Police pursuit - not stop - drive dangerously 15

9-Jan-19 Refuse to submit to breath analysis 6

9-Jan-19 Resist arrest 6

Total term of imprisonment 3yrs 8mo

The abovementioned sentences represent nearly one quarter of the total period of time the Applicant has been in Australia. The imposition of a custodial term is regarded as the last resort[22] in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.[23] To my mind, the most sobering part of these custodial terms is that they were imposed on the Applicant when in his late forties/early fifties. While receiving these custodial terms, the Applicant had responsibility for a family including four children and his wife.
[22] See Saleh and Minister for Immigration and Border Protection [2017] AATA 367.
[23] See PNLB and Minister for Immigration and Border Protection [2018] AATA 162.
Save and except for one conviction dating from December 2010, all of the Applicant’s offending history runs from early 2016 until early 2019. During these years, the Applicant was aged between approximately 47 and 51. The Applicant’s age and family responsibilities were at the forefront of the judicial sentencing officer when sentencing the Applicant for his offending on 9 January 2019. Magistrate Walsh wrote:
“He has an appalling record of drink driving and disobeying Court’s orders. He has also resisted the police in the past. He has been imprisoned in the past for driving offences. He is 49 years of age and has four children. His wife is present in court. He migrated from Hong Kong and has employment in the past. His youngest child suffers from a disability. Unfortunately, as is not unusual, his wife will be left to pick up the pieces of the family.”[24]
[24] T1, 39–40.
Despite his relatively advanced years, the courts clearly formed the view that the Applicant’s conduct was of such seriousness they were left with no choice but to impose a custodial term despite the mitigating features present in the case. The imposition of these custodial terms also occurred after he had repeatedly had the benefit of sentencing regimes that did not attract the imposition of custodial time. It is plain from his sentencing history that his offending was punished by the imposition of bonds (including conditions like requiring him to attend counselling, educational development, and drug or alcohol rehabilitation), fines and intensive correction orders.
Some of those non-custodial sentences made provision for them to be later “called up” by the sentencing courts for re-sentencing if he breached certain conditions of the original order. There are at least four instances where the Applicant was re-sentenced for a prior offence on a call-up. For the purposes of this sub-paragraph (c), I find that the above-tabulated sentencing regimes, with particular reference to the Applicant’s age at the time he was sentenced for these offences, very strongly militate in favour of a finding that his offending has been of very serious nature.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. It is necessary to approach this factor with some caution.
In relation to frequency, the following table annualises the rate of the Applicant’s offending both in terms of (1) the first and most recent of his court dates and (2) the first date he actually committed an offence, and the last date on which he did so.

Offending in Australia

First court date Last court date Timespan Court date count Frequency (court dates/year)

1 December 2010 9 January 2019 8yrs 1mo 8 0.99

First offence Last offence Timespan Offence Count Frequency (offences/year)

26 October 2010 23 December 2018 8yrs 2mo 18 2.21

Stated at its best, this Applicant has been dealt with by lawful authority for sentencing at the rate of approximately one offence per annum. In terms of the rate of commission of offences during an offending period running from October 2010–December 2018, he has committed over two punishable offences per annum. On either ground, it is safe to find that his offending has been of a frequent nature.
A more holistic and detailed analysis is required of the nature of his offending history to assess whether it contains a trend of increasing seriousness. An initial point is this: I am mindful that the immediately preceding paragraph 8.1.1.(1)(c) contains reference to “the crimes or conduct” of an Applicant. The instant paragraph 8.1.1(1)(d) refers only to “the non-citizen’s offending”. Applied to the instant facts, it would not be safe to include the Applicant’s above-referenced “other conduct” relating to the episodes of family violence to determine whether there is any trend of increasing seriousness in the Applicant’s history.
I will therefore limit my analysis about a trend of increasing seriousness to the Applicant’s criminal offending only. The Applicant’s criminal history is not one of increasing seriousness in the familiar sense. It does not, for example, commence with low-level summary-type offending. Instead, there is a stubborn and persistent petulance and refusal to accept lawful authority redolent in his offending which has been there from its inception and has remained a predominant feature of his offending throughout its course.
His history of offending while in charge of a motor vehicle can only be described as appalling. He has clearly developed an aversion to external scrutiny of what he is doing while in charge of a motor vehicle. In most circumstances, this would only label his offending as repetitious traffic offending. But that would be to simplify and understate the increasingly serious consequences of the Applicant’s offending. In short, while his offences may have been consistently committed in one particular area, the consequences of his offending and the level of law enforcement involvement to deal with it, has clearly increased.

For example, on 9 June 2016, during a traffic stop, the Applicant attempted to grab a police officer’s gun and otherwise resisted arrest. The Applicant took on a demeanour that was “extremely violent and aggressive”. In an effort to subdue him, police administered OC spray and eventually had to physically “hold him down until further police arrived to help.”
By way of further example, on 23 December 2018, after being observed driving too fast for the weather conditions, understeering across two oncoming lanes and colliding heavily with a concrete traffic divider, police understandably formed a view to pull the Applicant over. He refused to comply with police requests to get out of his car and was eventually forcibly removed by police who required to administer “a number of knee strikes […] before he was brought under control”. He subsequently feigned illness or other physical difficulty when requested to provide a breath specimen. In the end, he was found to have no physical problems precluding him from complying with the reasonable requests of police.
While, on the one hand, the nature of the Applicant’s actual offences may not be immediately demonstrative of a trend of increasing seriousness, I am of the view (and I find) that, on the other hand, the consequences and circumstances of his offending – particularly in the realm of traffic offences – has a clearly referable trend of increasing seriousness. It is one thing to say someone is a consistent traffic offender. However, traffic offending would not normally have any trend of increasing seriousness without aggravating features. The crux of the problem for Mr Law is his repeated failure to comply with the interventions of police. On at least two occasions, this Applicant has responded erratically. He has placed his own safety, the safety of other road users and the safety of police in jeopardy. It is not unreasonable to say that what should have been relatively routine-type traffic offences that could have been dealt with by the police, were turned by the Applicant into serious and potentially very dangerous situations.
On this basis, I am of the view that the above-described circumstances of his traffic offending clearly betray a trend of increasing seriousness. Accordingly, this sub-paragraph 8.1.1(1)(d) weighs in favour of a finding the Applicant’s offending conduct has been very serious.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending. One way of gauging the cumulative effects of the Applicant’s repeated offending is to have regard to what suitably-placed others have thought of it. As mentioned, there is a consistent petulance and blatant disregard apparent from the Applicant’s offending history. The cumulative effects of the Applicant’s offending can be seen in (1) the appalling record of drink-driving offences he has compiled; (2) the adverse impact this has had on members of the Applicant’s family; and (3) the reality that his difficulties with the abuse of alcohol are at the front and centre of his offending. At his most recent sentencing episode on 9 January 2019, the learned sentencing Magistrate noted that he has:
“[…] an appalling record of drink driving and disobeying Court’s orders. He has also resisted the police in the past. He has been imprisoned in the past for driving offences. He is 49 years of age and has four children. His wife is present in court. He migrated from Hong Kong and has employment in the past. His youngest child suffers from a disability. Unfortunately, as is not unusual, his wife will be left to pick up the pieces of the family. He must be punished for what he has done, and he must be deterred from doing this again. He clearly has an alcohol problem and that provides special circumstances to vary the period of time for the non-parole period.”[25]
[25] T1, 39–40.
Further cumulative effects of his offending can be described as (1) his becoming “adversely known” to law enforcement authorities because of the nature and extent of his offending; (2) the inevitable assessment of his traffic record as “poor”; and (3) his commission of traffic offences while being the subject of conditional release. This is what the learned sentencing magistrate had to say when sentencing the Applicant on 5 September 2017 at the Burwood Magistrates Court:
“Relevantly the drive whilst disqualified offence was detected following a traffic stop for the rule offence of not stop at stop line. The defendant was adversely known at the time of these offences mostly for traffic offences. He did not have a substantial conviction history but he had entries on his conviction history for serious traffic matters. His traffic record report could only be described as poor. He is presently disqualified by reason of orders for disqualification. Court orders for disqualification and habitual traffic declarations until 2035.
The breaching offences were aggravated by the fact that he is the subject of conditional release at the time. This offence of drive whilst disqualified is one that is very easy to commit but very difficult to detect and but for the traffic stop on the occasion in question the offence might well have gone undetected.”[26]
[26] T1, 42.
There are, therefore, clearly discernible cumulative effects arising from this Applicant’s repeated offending. Taken in total, those cumulative effects mean that significant weight can be allocated to this sub-paragraph (e) in favour of a finding that this Applicant’s offending history is very serious.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
There are at least four instances where the Applicant has failed to disclose his criminal history upon re-entering Australia. They are, respectively, 12 August 2011, 10 February 2013, 10 May 2014, and 4 September 2015.[27] The failure to disclose involves the Applicant giving a “no” answer to a question in each of the relevant cards which was “do you have any criminal conviction/s?” This is readily apparent from the subject cards which relevantly appear in the material.
[27] See T1, 71–74.
I have checked the Transcript and cannot glean anything in the Applicant’s evidence purporting to explain these incorrect answers. The material contains a letter from the Applicant to the Respondent dated 18 November 2019 in which he refers to these incorrect answers and seeks to explain them thus:
“Convictions that were required to be disclosed on those passenger cards relate to a Destroy or Damage of property offence that was committed in Australia in 2010, which resulted in a good behaviour bond being issued. As the damaged property involved my own home, and my poor understanding that the behaviour bond is not a criminal conviction, I mistakenly failed to disclose this conviction on those passenger cards.”[28]
[28] T1, 75.
I accept this Applicant may have misunderstood the nature of a behaviour bond and whether it did or did not constitute a criminal conviction for the purposes of accurately answering the subject question in these passenger cards. That said, the reality is that the Applicant has re-entered Australia on four occasions and has, on each occasion, incorrectly answered the subject question. His written explanation is self-serving and otherwise not convincing and, as mentioned, there is nothing in the oral evidence providing any better explanation.
In the circumstances, I will allocate a moderate level of weight to this sub-paragraph 8.1.1(1)(f) in favour of a finding that the totality of his unlawful conduct to date has been very serious.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.
This Applicant has experienced a warning – indeed, of the most significant kind. All too often in matters such as this, an Applicant receives a suitably worded letter of warning from the Respondent to curb their offending or to otherwise face adverse consequences for their visa status. Here, this Applicant’s visa has previously been the subject of an actual cancellation under s 501(3A). On 1 December 2017, the Applicant had his visa restored to him following that initial cancellation. The letter notifying him gave him the following unequivocal warning:
“Please note: this decision does not mean that your case cannot be reconsidered again on character grounds in the event of further criminal offending by you.”[29]
[Emphasis in original]
[29] T1, 76.
The Applicant sought to explain why he disregarded this warning in his oral evidence. The explanation was at once unconvincing and self-serving:
“Interpreter: […] So, the first time you cancel my visa, you gave it back to me after seven or ten days. So I didn’t realise the seriousness of that offence. .And the second thing is I’ve been in prison, and plus Villawood - it’s already three years. So, the consequence of breaching the visa condition - it’s more severe, a lot more severe than the offence against, like, the law, or the Australian government. Because with the other - the other, like the other offence, it’s only eight months gaol. But then with the visa I stay in for two years. My understanding about the law was different before, because before I believe if I didn’t do robbery, killing and all - all sort of, like, severe offences (indistinct). So what I was trying to say was before I thought only like if you robbed a bank or do drugs and having violence behaviour and all that - that’s serious offence. But then now I realise even with drink driving it’s a serious offence as well. So now I understand this is serious as well, and I will not, like, do it again.
Mr Dennis:[30] So, Mr Law, after the last time your visa was cancelled, did you think you could reoffend and get away with it?
Interpreter: Sorry, what was the question again?
Mr Dennis: Mr Law, when your visa was cancelled last time and it was reinstated, did you think you could reoffend and get away with it - that is not get caught or not get in trouble, or not face the consequences?
Interpreter: Maybe you can say so. If I knew it was so serious, of course I would not do it again. But now I know the consequence, and I’ve lost a lot because of that. And I would not do it again. I’ve learned the lessons and I’m hoping you can give me a chance - you won’t like break my family, so I can - I can be together with my wife and my children.”[31]
[30] Mr Liam Dennis, Senior Associate, MinterEllison, Legal representatives of the Respondent.
[31] Transcript, 35, lines 4–⁠32.
I have great difficulty in accepting any suggestion that the Applicant was not aware of the contents of the Respondent’s letter containing the abovementioned warning. I find it improbable that a person facing the extreme prospect of deportation could somehow forget or overlook or fail to consider such a significant letter. There is no contention made in the SFIC that the Applicant either (1) did not receive the letter containing the warning, or (2) was not otherwise aware of the warning. Accordingly, the Applicant's initial contention in his evidence in cross-examination about “not really” being able to recall receiving this letter should be rejected:
“Mr Dennis: Okay. Now, do you remember receiving that letter?
Interpreter: Not really.
Mr Dennis: Okay. Well, Mr Law, that letter was a notification that the decision to cancel your visa was to be revoked, and you were also warned by the Department of the consequences of further reoffending.
Interpreter: Yes, now you’ve told me, yes, I know now.
Mr Dennis: Okay.
Interpreter: So, what you told me - that the things I’ve done wrong - the things I’ve done, I know it’s wrong. And in the future it won’t happen again.”[32]
[32] Transcript, 35, lines 29–43.
I therefore allocate a strong level of weight to this sub-paragraph 8.1.1(1)(g) of the Direction in favour of a finding that the totality of the Applicant’s offending has been of a very serious nature.
I have had regard to all of the sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction. With particular reference to my analysis of the weight allocable to sub-paragraphs (a)(iii), (b)(ii), (c)–(g) inclusive, I am of the view that the Applicant’s offending can be readily characterised as “very serious”.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non- citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Sub-paragraph 8.1.1(2)(a) compels an inquiry into the risk to the Australian community in the event the Applicant were to re-engage in further criminal or serious conduct. Specifically, this sub-paragraph requires an assessment of the nature of the harm likely to be suffered by or occasioned upon individuals or the Australian community were the Applicant to re-offend.
To my mind, the evidence points to a two-pronged approach to assessing the nature of resulting harm were the Applicant to re-offend. First, there is the harm that would result to victims of his family violence offending such as he committed on 11 February 2011 that saw him punching his victim / wife with a closed fist and then proceeding to kick her in the chest area after she had fallen to the ground. There is no requirement to repeat the remaining circumstances of that offending.[33] It is necessary to have regard to paragraph 8.1.2 to the general policy of paragraph 8.1.2(1) of the Direction. That specific paragraph stipulates:
“Some conduct and the harm it would cause, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.”
[33] See [‎134]–⁠[‎140], below.
Paragraph 8.1.2(1) goes on to provide that “[…] the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of potential harm increases.” This type of very serious family violence conduct of the Applicant does, to my mind, obviously comprise conduct that, if repeated, is “so serious that any likelihood that it may be repeated is unacceptable” to the Australian community. I am also of the view that the Australian community’s tolerance for any risk of future harm arising from (1) further and similar acts of family violence by the Applicant and (2) a contravention of extant AVOs made against him would become lower were he to re-commit such offences in the future.
The second prong or approach to assessing the nature of resulting harm relates to the Applicant’s traffic history and, more particularly, the nature of his interactions with police officers seeking to intervene in his offending while in control of a motor vehicle. I have already found that there cannot be safely said to be any detectable trend of increasing seriousness in the Applicant’s family violence history. A different finding can be made with regard to his traffic history. I have recounted the circumstances of his traffic offending in June 2016. He grabbed a police officer’s gun, resisted arrest and otherwise took on a demeanour that was recorded by police as “extremely violent and aggressive”. The administration of OC spray[34] was required to subdue him and to facilitate police physically holding him down until further help arrived.
[34] Capsicum spray.
Further, his driving on 23 December 2018 was so dangerous that he understeered (ie veered straight ahead) across two oncoming lanes and collided with a traffic divider. It is trite to suggest that this conduct is mere “traffic history” in the form of speeding or failing to stop at a red light or to indicate an intention to turn left or right.
It is not a stretch of the evidence to find that if such traffic offending were to be repeated, its consequences could be so serious that any risk of its repetition would be unacceptable to the Australian community. This traffic offending attracts the operation of paragraph 8.1.2(1) of the Direction because I am of the view that the Australian community’s tolerance for any risk of future harm from such further offending is very low due to the seriousness of the potential harm resulting from this Applicant’s traffic offending. His traffic offending is at a different level – in terms of risk profile – to his family violence offending. The former is clearly trending upwards and militates in favour of him representing a greater risk of recidivism for that type of offending.
Taken together, I am of the view that the Australian community’s tolerance for any risk of future harm arising from either of (1) family violence-type offending and (2) further traffic offending of the type that occurred in June 2016 or December 2018 is very low because of the seriousness of the potential harm which would flow from repetition of the offending. His family violence conduct has had the effect of directly threatening the wellbeing of his wife and his son. His traffic offending has had the potential of adversely impacting upon the safety of police officers and other road users/members of the public. I refer to the relevant paragraph of the Direction and find that were the Applicant to repeat his offending in either a family violence or traffic offending context, its impact and consequences “may be so serious that any risk of similar conduct in the future is unacceptable.”[35] Were he to re-commit a family violence offence, similar to that committed in April 2011 or a traffic offence of the type committed in June 2016 or December 2018, his offending could conceivably result in significant physical and emotional harm to a quite realistically catastrophic level.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
[35] Direction paragraph 8.1.2(2).
The Applicant’s contentions
As I understood the material, the Applicant contends that his risk of recidivism “should be seen as remote to none.”[36] This contention appears to derive from five principal sources. First, it is contended that the Applicant’s current position is different to that in which he found himself after the first mandatory cancellation of his visa in 2017. The Applicant says that he did not apprehend or fear removal from Australia at the time of that first cancellation. He now says that he has reached a point of realisation that, dependent upon the outcome of this second contested cancellation, he could very well be removed from Australia. This realisation, says the Applicant, causes him to now fully realise “the gravity of the situation he is in.”[37]
[36] A1, 10.
[37] A1, 10[22].

This first contention must be rejected because it is difficult to accept he was not aware of the risk of deportation as an adverse outcome after his first mandatory cancellation. Even though the Applicant now contends he did not think his offending was particularly serious because he had his visa restored relatively quickly, he must have clearly known from that time that removal from Australia was a real risk. I reject any contention that the Applicant did not apprehend any such risk from the first mandatory cancellation because he thought his traffic offending was not somehow serious enough to attract operation of the Act such as to cause him to be removed from Australia.
The second basis on which the Applicant contends he now represents a remote to nil risk results from him reaching some kind of realisation or state of consciousness about the adverse impact of his past offending – particularly his family violence offending upon his wife – and how it placed her “in a dire position.”[38] A noted by the learned sentencing Magistrate who sentenced the Applicant on 9 January 2019, the Applicant’s conduct has now placed his wife in a position where she is alone required “to pick up the pieces of his family.”[39]
[38] A1, 11[24].
[39] T1, 40.
This basis behind the principal contention about his risk should also be rejected. The unfortunate reality is that when this Applicant is under the influence of alcohol, he has demonstrated a disregard for his family responsibilities (or even disregard for his family’s health and safety). That is to say, so long as there is a risk the Applicant will abuse alcohol, there is a risk that he will disregard those family responsibilities.
The third basis purportedly relied on by the Applicant to support his claimed “remote to none” risk of recidivism relates to a portion of the learned Stewart J’s judgment which resulted in this remittal. To my mind, the Applicant’s contention in this regard mis-states what I think His Honour was saying. In my respectful view, the Court was not purporting to make any findings of fact or to otherwise instruct the Tribunal. His Honour was making observations about whether the alleged error by the Tribunal at first instance was material.[40]
[40] See [62] of His Honour’s reasons.
The fourth basis upon which the Applicant propounds his “remote to none” risk of recidivism is that he “has shown his ‘strong remorse’ and contrite [sic] on every occasion he finds a chance.”[41] There is some measure of support in the material relating to remorse shown by the Applicant.[42] There is reference in one of the International Health and Medical Services (“IHMS”) records to the Applicant repeatedly expressing “remorse about past actions.”
[41] A1, 11.
[42] See, eg, A7, page numbered 62 of 98, dated 10 June 2020 added 12:11pm.
The fifth basis upon which the Applicant bases his propounded risk of recidivism relates to a submission that he is determined to “stay sober for the sake of his family and particularly his little disabled daughter.”[43] Support for this contention is also sought from the IHMS Records which make reference to the Applicant’s “[p]revious alcohol abuse which began in the context of his daughter’s diagnosis with disability.”[44] I approach this contention with caution because the quote is immediately followed by a notation about the Applicant’s abuse of alcohol: “sustained remission within a custodial setting.” [My underlining]. It is thus clear from the psychiatrist making this notation that any propounded remission from a disposition to abuse alcohol has been achieved within the closed confines of criminal custody or immigration detention. The Applicant’s capacity to resist a return to abusing alcohol remains to be tested in the broader community.
[43] A1, 11–12.
[44] A7, page numbered 62 of 98, dated 10 June 2020 added 12:11pm.
Factors indicative that the Applicant’s risk of recidivism has not changed
Sentencing remarks made on 5 September 2017
In sentencing remarks made by the learned sentencing Magistrate when sentencing the Applicant in September 2017, it was noted that while he demonstrated “a degree of contrition” for the commission of the offences, the court had difficulty in assessing his prospects of rehabilitation “given his inclination to offend against the road legislation of this State in a serious way.”[45] The learned sentencing magistrate was also of the view that the Applicant “was at some considerable risk of re-offending unless he addressed what appeared to be a disregard for the road legislation of this State and the orders of the Court too.”[46]
Failures to heed warnings
[45] T1, 42.
[46] T1, 42.
There are two instances where the Applicant failed to see warning signs and continued to re-offend. The first of those warnings was in the sentencing remarks of the learned sentencing Magistrate who sentenced him on 5 September 2017, who noted:
“Of course the defendant would have been well aware at the time he chose to drive on the occasion in question that if he reoffended in the way he did and it was detected as it was then his behaviour might well have some consequences for his family.” [47]
[47] T1, 43.
The second of those warnings is to be found in the clear and unequivocal warning in the Respondent’s letter dated 1 December 2017 wherein the Applicant’s visa status was restored to him. It was made clear in that letter that the Applicant’s visa status could again fall into jeopardy in the event of criminal offending by him.[48] Despite this further warning, the Applicant continued to offend. I am in agreement with the Respondent’s contention about the Applicant’s recidivism demonstrating “a reckless indifference to the safety of the wider community.” His traffic offending – particularly that which occurred in June 2016 and December 2018 – cannot be read in any other way. I also agree with the Respondent’s contention that the Applicant’s risk of recidivism with regard to traffic offending is compounded when one takes into account offences of the type the Applicant has committed (for example, driving whilst disqualified) are offences which are “very easy to commit but very difficult to detect […]”[49]
Alcohol addiction and rehabilitation
[48] T1, 76.
[49] See R1, 8[42]. T1, 42.
Prior to the previous hearing before the Tribunal, the Applicant obtained a “confidential psychological report”. It is dated 14 April 2020 and relevantly appears in the material.[50] The report was prepared by Mr Hassan Cinar, psychologist, of Mindways Psychological Services. Mr Cinar performed relevant risk assessment testing (called the “Level of Service Inventory-Revised”) (“LSI-R”) on the Applicant and reached the following concluded view about his risk of recidivism:
“The author asserts that according to his history and the scores on the LSI-R, Mr. Law is congruent to an individual with low/moderate risk for future recidivism. This is further indicated by a relative absence of risk factors in addition to the presence of several protective factors[51] as outlined earlier in the report. Should risks changed in the future, interventions aimed at addressing his risk would be advised.”[52]
[Errors in original]
[50]          T1, 397–406.
[51]          At G1, 405, these protective factors are described as including: “[…] the opportunity to utilise his value as a family man, having supportive interpersonal relationships, intention to resume employment upon his leave from detention, having transport assistance via his business partner, and his adherence to his faith.”
[52]          T1, 406.
Mr Cinar also applied the “Alcohol Use Disorders Identification Test” and gave the Applicant a score of 4 out of 10. Mr Cinar said this was indicative of a “low” risk. However, Mr Cinar described the relevant instrument as a tool “to assess alcohol consumption, drinking behaviours, and alcohol-related problems.”[53] To my mind, there is ambiguity in Mr Cinar’s report about what a score of 4 out of 10 actually represents. Further, in circumstances where the Applicant’s level of alcohol rehabilitation has not been tested in the community, I am cautious about allocating strong levels of weight to this score.
[53] T1, 401[4.2].
Following remittal of this matter, the Applicant obtained a letter from a Senior Bilingual Drug and Alcohol Clinician, namely, Sinatt Cheng Tang. In the relevant report, Sinatt Tang notes that the Applicant attended 14 sessions of treatment revolving around relapse prevention, education around triggers, strategies to support abstinence and cross-cultural issues. These 14 sessions were conducted from June 2020 until March 2021.[54] Sinatt Tang noted that the Applicant “has indicated a strong desire to maintain abstinence from alcohol use and offending behaviour.”[55] It was noted that the Applicant, “actively participates in sessions and demonstrates insight into his previous substance use and behaviour.”[56]
[54]          A7.
[55]          A7.
[56]          A7.
It cannot be denied that this level of described engagement by the Applicant with the rehabilitative process must be viewed as positive. Two things can be said against that: first, this relatively new-found intention to engage with the rehabilitative process has occurred at a time well after the Applicant committed his offences and, as a consequence, the Respondent made the decision to mandatorily cancel his visa. Second, the extent to which these rehabilitative efforts described by Sinatt Tang may now be said to have some positive effect on the Applicant, any such outcome remains to be tested in the broader community. In other words, it cannot be denied that all of this new-found desire to rehabilitate himself has occurred while the Applicant has been removed from the Australian community.
There is a fair volume of IHMS documents in the material.[57] To my mind, perhaps the most notable of those documents comprises a page of progress notes produced by a psychiatrist on 10 June 2020.[58] In these progress notes, this psychiatrist noted the following with regard to the Applicant’s predisposition to abuse alcohol:
“Has been seen by D&A nurse who outlined his alcohol use history in their notes. ; No drug misuse. ; Kwok Lam has been attending AA on line. ; Finding this helpful and eager to continue. ; Describes determination to maintain abstinence. ; Repeatedly expressed remorse about past actions. ; Also has further D&A appointment at VIDC.
[…]
- Major depressive disorder in the context of prolonged detention, separation from family and disabled daughter and recent loss of father. ; Depression of moderate severity, non-psychotic. ; Insomnia prominent.
- Previous alcohol abuse which began in the context of his daughter's diagnosis with disability. ; Sustained remission within a custodial setting. ;
- Motivated to change. ; Expresses strong remorse about past actions. ; Determined to maintain abstinence on release. ; Has been actively engaged with AA via videoconference and the D&A team at VIDC.”[59]
[Errors in original]
[57]          See A7.
[58]          A7, page numbered 62 of 98.
[59]          A7, page numbered 62 of 98.
The IHMS material contains a number of additional references to either the Applicant’s referral to drug and alcohol counselling or participation in that process.[60] Ultimately, any determination about the extent to which the Applicant’s past participation or involvement in any form of counselling process for his difficulties with alcohol is best informed by reference to what he said in oral evidence at the hearing. He was specifically asked whether he had been drinking up until December 2018 and responded thus:
“Mr Dennis: So, Mr Law, would it be fair to say then that you had been drinking up until December 2018?
Interpreter: I am telling you now I don't have a drinking problem. It's just sometimes when we go out, say, if it's someone's birthday we go out for dinner, and then a friend asks you to have a drink, would you have a drink? So, with the drinking problem I already realised the seriousness of it.
[…]
Mr Dennis: […] Mr Law, is your evidence that you do not have a drinking problem?
Interpreter: Not now.
[…]
Mr Dennis: Mr Law, do you accept that drinking was a factor in your offending?
Interpreter: Yes, that's correct.”[61]
[60] See, eg, A7, page numbered 4 of 5; A7, pages numbered 12, 39, 46, 54, 57, 61, 66, 74 of 98.
[61] Transcript, 25, lines 19–25.
The Applicant was then asked a series of questions about the rehabilitation sessions he had attended from June to July 2020 and why he attended them, if, as he now claims, he does not have a drinking problem:
“Mr Dennis: And, Mr Law, it's correct, isn't it, that from June to July 2020 you attended 14 rehabilitation sessions with an alcohol clinician; is that correct?
Interpreter: Correct. Before that I wanted to do it as well, but the nurse in Villawood said I didn't drink for over a year, it's not necessary. But, like, this time in 2020 I insisted to, like, join the course.
Mr Dennis: So, Mr Law, why did you attend 14 rehabilitation sessions if you don't have a drinking problem?
Interpreter: Sorry, I didn't quite understand him. So because last year when I was at AAT the government said I didn't show any remorse. So even though in Villawood the nurse said I didn't need to participate in those courses, but you said I didn't show any remorse so that's why this time I insisted I participate in the course.
Mr Dennis: So you participated in the course because of this review; is that right?
Interpreter: So the main thing is I want to prove to you guys that I am determined to change, yes. I am a totally different person. I will abide by the law and I won't do anything which is harmful for the society or to my family.
Mr Dennis: Mr Law, will you continue to seek treatment if you're to be successful in this review?
Interpreter: Yes, I've been doing it, and I will continue next week.
Mr Dennis: But will you continue to do it after this review is concluded, if you're successful?
Interpreter: I already don't have a problem with drinking, but if the government believes it's helpful for me then I will continue.”[62]
[62] Transcript, 25, lines 1–⁠34.
Ultimately, I find that the Applicant’s oral evidence at the hearing demonstrates that his now propounded level of engagement with alcohol rehabilitation is, at best, designed to best-position him for a successful outcome in this proceeding. The evidence is, at best, muddled, unclear, and ultimately unreliable about whether he has overcome his predisposition to abuse alcohol. Despite the presence of written records about his referral to or level of involvement in the rehabilitative process, the state of his rehabilitation is such as to fail to convince me that he is genuinely reformed. Without genuine reformation, I am of the view he is no less likely to return to abusing alcohol and consequently offending than he was at the time of his most recent removal from the Australian community.
Conclusion on risk
I have made findings about the Applicant’s five contentions about why he now represents a lower risk of recidivism. Having regard to the totality of the Applicant’s history of whatever engagement he has had with the rehabilitative process, it is difficult to conclude that his efforts at rehabilitation have been genuinely made. While it can be accepted that his most recent engagement with that process has been positive (as noted by Sinatt Tang), it can, to my mind, be safely found that the primary motivator behind his new-found desire to be rehabilitated derives from obtaining a more favourable outcome from this visa appeal process.
The evidence was, at best, opaque about the extent to which he has overcome his propensity to abuse alcohol. It is likewise difficult to take any measure of confidence from any prospect that this Applicant will, if returned to the Australian community, continue his engagement with the rehabilitative process. In his own evidence, he spoke of not having a drinking problem and, further, that he has not had any such problem since 2013. This date, inconveniently for the Applicant, pre-dates much of his offending. If the Applicant does not admit that he has a drinking problem it is difficult to see why he would continue to engage in the rehabilitative process like he says he would.
It is similarly difficult to lend any credence (or weight) to evidence from witnesses who sought to support the Applicant and who said that if returned to the community, it will not be necessary for the Applicant to engage with rehabilitation. This was propounded by the Applicant’s son, Child K, in his evidence. Such evidence is not consistent with the Applicant’s history with alcohol, nor is it consistent with observations made by judicial sentencing officers who, as outlined above, have made certain findings and comments about the level of the Applicant’s rehabilitation from alcohol abuse.
It is also important – from the point of view of recidivism – to remember that the Applicant has been denied alcohol during his time in criminal custody and then immigration detention. He cannot cavil with the finding that his propensity to abuse alcohol has not been overcome in any fulsome sense because that remains to be tested in the broader community where alcohol will be widely available to him.
In short, it is difficult to take any measure of confidence from the Applicant’s evidence in general, and his record of engagement with rehabilitation in particular that were he again to be faced with the exigencies and difficulties that have confronted him in the past, he can now be safely relied upon to not again return to abusing alcohol and committing offences. I am not convinced that he has completely eliminated a recourse to alcohol as a means of attaining his personal equilibrium in times of moderate or extreme difficulty in his life.
In terms of an actual finding for the Applicant’s risk of recidivism, it would be trite to ignore the analysis and findings of the psychologist, Mr Cinar, who was of the view that the Applicant represents a “low/moderate” risk for future recidivism. As noted, Mr Cinar’s opinion was not the subject of testing in cross-examination and any weight attributable to it must be ameliorated accordingly. That said, I will adopt, for the instant determination, Mr Cinar’s assessment of the Applicant’s risk of recidivism but add that whatever the Applicant’s risk profile may now be said to be, there is little or nothing in his history of engagement with rehabilitation to suggest that his risk of recidivism is anything different than what it was at the time of his most recent removal from the Australian community.
Conclusion: Primary Consideration 1
With reference to the weight attributable to this Primary Consideration 1, I have found:
(a)the nature and seriousness of the Applicant’s conduct can be characterised as “very serious”;
(b)I have assessed the risk to the Australian community were the Applicant to commit further offences or engage in other serious conduct by having regard to my respective findings that:
(i)the nature of the harm to individuals or the Australian community should the Applicant commit further or other serious conduct could conceivably result in significant physical and emotional harm to a quite realistically catastrophic level;
(ii)that while the Applicant may be said to represent a low-moderate risk of re-offending, I am of the view that his risk of recidivism is now no different to what it was at the time of his most recent removal from the Australian community;
(iii)the nature of the harm which would result were the Applicant to re-commit his family violence conduct or traffic offending is such that any risk of its repetition is unacceptable.
Having regard to the totality of the material before the Tribunal, I am of the view (and I find) that this Primary Consideration 1 weighs strongly against the revocation of the mandatory cancellation of the Applicant’s visa.

Sub-paragraph (h) of paragraph 8.3(4) of the Direction looks for evidence that the child/ren have suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct. As alluded to earlier, there is no clinically verifiable or independent evidence about any extent to which any of the relevant children have suffered physical or emotional trauma resulting from the Applicant’s conduct.
Conclusion: Primary Consideration 3
I have had regard to the totality of the evidence and have sought to allocate weight – both for and against – weight allocable to this Primary Consideration 3. It is necessary to have regard to the concession made by the Respondent to this effect:
“While the best interests of the applicant's daughters may be served by the cancellation decision being revoked (8.3(4)(a), (b)), the Minister contends that this factor should not outweigh the seriousness of the offences, the risk of reoffending and the expectations of the Australian community.”[121]
[121] R1, 10[56].
I am therefore of the view (and I find) that the cumulative weight attributable to the relevant sub-paragraphs of paragraph 8.3(4) of the Direction weigh moderately, but not determinatively, in favour of revocation of the mandatory cancellation of the Applicant’s visa. I qualify this finding by saying that the weight attributable to this Primary Consideration 3 does not outweigh the strong weight I have attributed to Primary Consideration 1 and the moderate weight I have attributed to Primary Consideration 2.
Primary Consideration 4: The Expectations of the Australian Community
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[122] The Direction further explains:
“This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.4(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case”[123]
[122] Direction, paragraph 8.4(3).
[123] Direction, paragraph 8.4(4). Paragraph 8.4(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
In assessing the weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides two separate propositions which are worth examining separately. The first is that the Australian community expects non-citizens to obey Australian laws while in Australia. The second, proposition is that where a non-citizen has engaged in serious conduct in breach of the community’s expectations, 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.
In addition to the guidance provided by paragraph 8.4(1) of the Direction, paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
I also note, based on the principles in paragraph 5.2 of the Direction, that:
·the Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[124]
·Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life;[125]
·the nature of a non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify a visa outcome that is not adverse to the non-citizen.[126]
Analysis – Allocation of Weight to this Primary Consideration 4
[124]         Direction, paragraph 5.2(4).
[125]         Direction. 5.2(4).
[126]         Direction, paragraph 5.2(5).
With reference to the propositions in paragraph 8.4(1) of the Direction, the architecture of this sub-paragraph can, to my mind, be expressed thus:
(a)the Australian community expects non-citizens to obey Australian laws while in Australia; and
(b)as a norm, where a non-citizen has either:
(i)breached the expectation in the immediately preceding sub-paragraph (a); or
(ii)there is an unacceptable risk that the non-citizen will breach the expectation in the immediately preceding sub-paragraph (a);
– then, the Australian community expects that the Australian government will not allow such a non-citizen to enter or remain in Australia.
Clearly, the Applicant has breached the Australian community’s expectations by his breaches of Australian laws. Therefore, the Australian community “as a norm” expects the Australian government not to allow him to remain in Australia.
Paragraph 8.4(2) of the Direction refers to the Australian community’s expectation that refusal of a visa may be appropriate simply because the nature of the offending is such as to give rise to an Australian community expectation that the person should not be granted a visa to remain here. In particular, paragraph 8.4(2) stipulates that an Australian community expectation is that the Australian government “can and should refuse entry to non-citizens” in such circumstances. This paragraph 8.4(2) then enumerates certain factors that are informative of this expectation and, ultimately, the weight allocable to it. I note my findings that:
·the Applicant has been convicted of crimes against government representatives in the performance of their duties;[127] and
·the Applicant has engaged in family violence on numerous occasions.[128]
[127] See [‎32]–⁠[‎40], above.
[128] See [‎109]–⁠[‎159], above.
These findings engage the principle in paragraph 8.4(2) such as to give rise to a finding that the nature of this Applicant’s offending gives rise to an Australian community expectation that the Australian government can and should cancel his visa.
The final question is whether there are any factors which modify the Australian community’s expectation that the Applicant cease to hold a visa. This question is informed by principle 5.2(4). The Australian community will not have a low tolerance of this Applicant’s conduct because (1) he does not hold a limited stay visa; and (2) he has not been participating in or contributing to the Australian community for only a short period of time. He has been in Australia since he finally settled in about 2010.[129] Principle 5.2(4) further provides that the Australian community may afford a higher level of tolerance to this Applicant’s criminal or other serious conduct if (1) the Applicant has lived in the Australian community for most of his life, or (2) he has lived here from a very young age. Neither of these two elements apply to the Applicant. Therefore, the Australian community’s expectations are not modified by the principles in paragraph 5.2(4) of the Direction.
Conclusion: Primary Consideration 4
[129] A2.
Considering all relevant factors, Primary Consideration 4 weighs heavily in favour of non-revocation of the cancellation of the Applicant’s visa.
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
(a) International non-refoulement obligations
The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. There is no reference to this Other Consideration (a) in the Applicant’s SFIC or in oral submissions put on his behalf.[130] This Other Consideration is not relevant.
[130] See also T1, 67.
(b) Extent of Impediments if Removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Respondent’s generally stated position is that the above three considerations informative of any such impediments, in the circumstances of the instant case, “do not support a conclusion that the mandatory cancellation of the Applicant’s visa should be revoked.”[131]
[131] R1, 12[67].
The Applicant settled in Australia in or around 2010. He was 41 years of age when he arrived here and has spent the majority of his time in Australia since his arrival. There are instances of return travel to Hong Kong.
In terms of the three components relevant to determining weight allocable to this Other Consideration, the following findings can be made. First, in terms the Applicant’s age and state of health,[132] he is now 53.5 years of age and it can be fairly said that he has some portion of his working life before him. In his Personal Circumstances Form (“PCF”), in response to the question “Do you have any diagnosed medical or psychological conditions?”, the Applicant ticked the “No” box. He refers to no medical or psychological condition, no medication or other treatment for any such condition, and no treating clinician for any such condition(s).[133] This is somewhat at odds with what appears in the IHMS material and what he has told other clinicians such as Mr Cinar.
[132] Direction, 9.2(1)(a).
[133] T1, 66.
Whatever conditions the Applicant has propounded in Australia have been adequately treated here. It would not be an unfair application of the evidence to find that a nation such as Hong Kong, being at a broadly similar stage of cultural and development – in terms of provision of social services – will be able to offer the Applicant a similar level of care and treatment for his claimed maladies. While perhaps not of an identical level to that of Australia, there is little to cavil with the proposition that the Applicant’s psychological symptomatology could be adequately treated in Hong Kong, where he will have access to the same treatment styles and modalities as is currently available to other citizens of that country.
Second, it is necessary to consider whether there are any “substantial language or cultural barriers”[134] to the Applicant returning to Hong Kong. The movement records make it plain that he has made multiple return trips to Hong Kong and that he has spent four-fifths of his life in that country. He was born in Hong Kong and grew up there, speaking Chinese in the Cantonese dialect. This dialect is common in Hong Kong. Thus, there cannot be any substantial language barrier to him returning to Hong Kong and establishing himself and maintaining basic living standards.
[134] Direction 9.2(1)(b).
He spent four decades growing up there with his family. In these circumstances, it is not possible to identify any cultural barriers or other unfamiliarity to him establishing himself and maintaining basic living standards.
Third, it is necessary to enquire into the extent of any social, medical and/or economic support available to the Applicant in Hong Kong.[135] Referring firstly to social support available to the Applicant in Hong Kong, he said the following during his evidence in chief:
“Mr Nikjoo: Do you have any place to go in Hong Kong? Do you have any friends or relatives in Hong Kong?
Interpreter: Yes, I have two brothers, but they have very, like, small space, roughly 30 square metres for the whole family, so how can I, like, squeeze in with them? My parents, with my parents, my father passed away in May last year, and now my mother stays with my younger brother. So how can I, like, squeeze in with them, yes?
Mr Nikjoo: So is there anyone
Interpreter: So my little brother’s place is just a little room divided from a house, divided into small rooms. So his room, it’s only about 10 square metres. He’s living with my mother as well, so I don't think I can stay with them either.”[136]
[135]         Direction, 9.2(1)(c).
[136]         Transcript, 18, lines 16–30.
Thus, while the accommodation may not be generously proportioned, the Applicant does have a level of social support available to him from members of his family were he compelled to return to Hong Kong.
The next enquiry relates to the extent of medical support he will have available to him in Hong Kong. The simplistic approach is to say that he does not identify any physical or psychological difficulty or malady in his PCF and to leave the matter there. But, as mentioned, he has reported psychological symptomatology to clinicians attached to the IHMS and to other clinicians such as Mr Cinar and Sinatt Tang. I have checked the evidence and cannot locate any specific reference to the adequacy or otherwise of medical facilities in Hong Kong relative to the Applicant’s asserted psychological symptoms. The closest the evidence gets to discussing medical facilities in Hong Kong arises when he was asked in cross-examination about the extent to which his wife would be able to re-settle there with him. He said the following:
“Mr Dennis: Mr Law, I'm just trying to identify why you say your wife would not join you in Hong Kong. Do you have an answer to that question?
Interpreter: I've already told you before, my wife would not go back with me, that was 100 per cent sure.
Mr Dennis: I'm asking you why, Mr Law.
Interpreter: I already told you she could not survive in Hong Kong. Firstly, the medical facilities is not as good and also educational facilities is not as good.”[137]
[137] Transcript, 22, lines 46–47; 23, lines 1–9.
While there was no further explanation of why the medical facilities in Hong Kong are “not as good” as, presumably, those in Australia, it is reasonable to find that those facilities may not necessarily be of an equivalent standard to that to which the Applicant has become accustomed in Australia. Some slight weight is allocable in favour of the Applicant on this basis.
The final component of this third part of paragraph 9.2(1)(c) refers to economic support available to the Applicant in Hong Kong. In Australia, the Applicant has done painting work and there is evidence that he conducted his own painting business during his time in the Australian community. In one of his answers relating to cross-examination related to the sort of work he would do there to support himself in Hong Kong, he responded thus:
“Mr Nikjoo: Thank you, you answered my next questions. What happen to you if you be removed to Hong Kong, Mr Law?
Interpreter: If I have to go back to Hong Kong I could not survive there because Hong Kong is now very different. Firstly it is the pandemic, and then a lot of people lost their jobs. I could not do painting in Hong Kong because they have different way of doing things. I’m also over 50, and no one would want to employ me.”[138]
[138] Transcript, 18, lines 4–11.
I am not persuaded that the Applicant would not be able to derive economic means to support himself as a painter in Hong Kong simply because “they have a different way of doing things.” Of slight weight in favour of the Applicant is his age and the possibility that he may, perhaps, be slightly less employable than someone younger than him. However, short of evidence about the age and profile of painters in Hong Kong, this component of 9.2(1)(c) can only yield slight weight in favour of the Applicant based on his employability relative to his age.
There was some reference in the Applicant’s evidence that the painting skills and experience he has developed while working in Australia may not be transferrable to Hong Kong. Such a contention should be rejected.
To my mind, having regard to the relevant componentry of paragraph 9.2(1) of the Direction, I am of the view that this Other Consideration (b) is, at best, of slight weight in favour of the Applicant such that his visa status to remain in Australia should be restored to him.
(c) Impact on victims
Paragraph 9.3(1) states that decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
As best as I understood the written and oral submission put on behalf the Applicant, no contention is made about weight allocable in his favour pursuant to this Other Consideration (c). Accordingly, the only safe finding can thus be that a neutral level of weight is allocable to this Other Consideration.
(d) Links to the Australian Community
Paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors. They comprise: (1) the strength, nature and duration of ties to Australia; and (2) the impact on Australian business interests.
I will consider each in turn.
Strength, nature and duration of ties
With reference to the first part of this Other Consideration, it is necessary to consider three elements. First, it is necessary to have regard to the impact of any non-revocation decision on the Applicant’s “immediate family” where those people have a right to remain in Australia indefinitely. Second, it is necessary consider the impact of a non-revocation decision by taking into account the strength, nature and duration of any other ties the Applicant has to the Australian community. Third, it is necessary to have regard to the strength, nature and duration of any family or social links the Applicant may have with people who have an indefinite right to remain in Australia. I will address each component in turn.
1. Impact of non-revocation on the Applicant’s immediate family
The Applicant’s immediate family in Australia comprises his wife and his two adult sons aged approximately 19 and 24 respectively. His wife and the two sons gave oral evidence at the hearing. I will consider each in turn.

The Applicant’s elder son, Child K, is nearly 25 years of age. He has provided two written statements[139] and he also gave oral evidence at the hearing before me. He is currently studying to obtain qualifications in the finance field. The common theme in his evidence appeared to be his consistent perception that his mother is under immense financial strain in terms of conducting the family in the absence of the Applicant. He is aware of the financial difficulties she is confronting in this regard. He spoke of wanting to move on with is life and hoping that the Applicant will return to the family unit to reclaim his responsibilities as the head of the household.
[139] A3; T1, 237.
He currently lives at home with his mother and three other siblings and where possible, assists with the care of his siblings. The time quotient required for this care has caused him to change his university studies to part time. This inability to complete his course as a full-time student has caused him to be “often depressed” as a result. As he said in his written statement, “I am unable to live a satisfactory adult-life due to my father’s absence as I have to bear responsibilities that are not my own.” [140]
[140] T1, 237.
It was plain from this son’s evidence that he wants to eventually move into a place of his own and progress his own career and interests. It is reasonable to find that were he to do so in the absence of the Applicant’s return to the family unit, it will, in turn, result in increased stress and difficulty for the Applicant’s wife.
There is little to cavil with the finding that the Applicant’s removal from Australia will impact upon this particular son. That said, this son is moving to a stage in his life where he will eventually become employed and able to sustain himself. The impact on this son arising from any removal of the Applicant is more indirect than direct. By this, I mean that the Applicant’s wife will lose whatever means of financial support she has received from this son to date. Indeed, this son, in his oral evidence was forthright enough to say the following:
“The last question, are you worry about him to be removed from Australia and go back to Hong Kong? Yes, very - yes, yes. I don’t know how - how I’ll function as a human anymore if Dad is not here. I cannot - I cannot support the family anymore. It’s - it’s - it’s already destroyed for a good half of my life - I mean not half but like a good - a good portion of my life, I - I can’t let it destroy the rest of my life. I - look, it’s - it’s a psychological balance, like supporting my family and my own life and I do feel like if I’m choosing my own life over my family, it’s very selfish but I just don’t think I can give anymore.”[141]
[141] Transcript, 82, 23–31.
The Applicant’s second son, Child A, is nearly 20 years of age. He has provided both written[142] and oral evidence. He is currently studying at university to become a police officer. He says that if the Applicant is not returned to the family unit, “it would be really difficult for my family to survive as I can see my mother and eldest brother undergoing a lot of stress.” The Applicant’s absence, says this son, has caused the family to struggle financially and emotionally.
[142] T1, 238.
In his oral evidence, this son spoke of “currently studying a Bachelor of Computer Science at uni.”[143] He is a person of varied interests whose life involves his studies, remunerative work, hobbies and a social life. In addition to paying his own way, he also makes financial contributions to the household. Those financial contributions are at the rate of “about $400 a month.”[144] He also gave oral evidence about playing an active role in looking after Child C while the Applicant’s wife was working or otherwise indisposed.
[143] Transcript, 68, line 10.
[144] Transcript, 68, line 30.
Similar to the findings I have made for Child K, although he does not expressly say so in his oral or written evidence, it is reasonable to find that, sooner rather than later, Child A may eventually decide to live independently. Also similar to Child K’s situation, the impact of a non-revocation decision on Child A will not necessarily have a direct impact but rather, an indirect impact. This is because in the event Child A eventually lives on an independent basis, the Applicant’s wife will be deprived of a significant measure of the support Child A is presently providing to her for the maintenance and support of the family unit.
In relation to the Applicant’s wife, there can be no question that she is facing financial difficulty in making ends meet. In her statement appearing in the material,[145] she speaks of being “extremely financially stressed” and reliant upon Centrelink benefits “as a means to financially sustain [her] family”. She has part-time job at Australia Post. Her working hours range from 10pm–6am and she therefore needs another member of the family to take care of Child C. She says she is “unable to afford our current financial obligations” and has “resorted to drawing down [her] mortgage and on [her] eldest two sons to support [her] family.”[146] She fears that the current financial arrangements will not be sustainable over the longer term. There can be no doubt that the return of the Applicant to the family unit will assist the Applicant’s wife both financially but also with his responsibilities as a parent, primarily for Child C.
[145] A5.
[146] A5.
The Applicant’s absence, says his wife, “has contributed to immense stress in my life and I am often sad as a result. I truly need my husband in my life as I cannot do this alone.”[147] The impact of a non-revocation decision on the Applicant’s wife will clearly be a harsh one. She needs him both as a means of financial support and emotional support given the additional exigencies relating to the remaining 10 years of parenting Child C until that child attains the age of 18 years.
[147] A5.
The impacts on the Applicant’s wife will no doubt be exacerbated in the event that the Applicant is not returned to the family unit because one or both of her sons may very well leave the family unit and live independently.
2. Strength, nature and duration of “other ties” – length of residence
The first enquiry relevant to determining the extent of the Applicant’s “other ties” involves the question of how long the Applicant has resided in Australia and whether he came here as a young child. There are two tempering sub-elements to be taken into account as part of consideration of this second component of paragraph 9.4.1. He arrived in Australia in or around 2009. He has resided here for about a decade. He commenced offending in Australia on 26 October 2010. I therefore find that the Applicant began offending “soon after arriving in Australia.” Accordingly, any weight allocable to him must be tempered.
The next enquiry refers to the extent to which the Applicant can be found to have positively contributed to the Australian community. The Applicant has a history of work for remunerative employment in Australia. He cites his primary area of experience to be in the painting field on a mostly self-employed basis. The material contains two references that corroborate the Applicant’s history of employment in Australia. The first is from Mr Gordon Duong and it is dated 1 April 2020.[148] In this reference, Mr Duong said the Applicant has “never asked Centrelink for any assistant [sic] financially for all the time he is in Australia.” This reference also speaks positively of his work in the painting field. The second reference is from Mr Bi You Li and it is undated.[149] This reference speaks of the Applicant being “reliable with his work, on time and finished it to a good standard.”
[148] T1, 239.
[149] A9.
In terms of contributions to the community, while not directly on point, in his written material, the Applicant said “I am a taxpayer and have not been a burden on Australia. No Centrelink payments. My wife and I are raising and educating our children, hopefully to university level. Our eldest son [Child K] is currently studying.”[150]
[150] T1, 66.
Based on the Applicant’s level of work contributions to the Australian community, I am of the view (and I find) that a strong, but not determinative, measure of weight is allocable to him pursuant to paragraph 9.4.1(2)(a)(ii) of the Direction.
3. Strength, nature and duration of “other ties” – family and other social links
Therefore, I am of the view that these three elements to paragraph 9.4.1 of the Direction militate in favour of a finding that the strength, nature and duration of the Applicant’s ties to Australia weigh strongly, but not determinatively, in favour of the restoration of his visa status to remain here.
The relevant people who fall within the ambit of this specific category are the Applicant’s immediate family members and certain other social contacts. His relationships with immediate family members who have a right to remain here indefinitely can be summarised thus:
·His relationship with his Australian citizen wife, which commenced in approximately the mid-2000s and runs to the present time. While a tempestuous relationship, I am prepared to regard it as a viable one primarily based upon the wife’s evidence in support of a finding that results in the Applicant’s return to the family unit.
·His relationship with two adult sons which has lasted their entire lives. The relationship between the Applicant and the two sons is palpably strong despite his offending history. There was no suggestion in the evidence that they have any in any sense abandoned him.
The Applicant also has a social relationship with Mr Ken Wang. Mr Wang provided a written statement.[151] The Applicant and Mr Wang have had about 10 years of friendship. Mr Wang regards the Applicant to be of good character and a man who works hard and looks after his family. As I understood Mr Wang’s written statement, he intends to work with the Applicant in the painting field upon the Applicant’s return to the Australian community.
[151] A6.
There is a further written reference/letter from the abovementioned Steve Duong in the material. It dates from 7 April 2020 and refers to a friendship with the Applicant “for over 10 years.”[152] In this reference Mr Duong refers to the Applicant as a business client (painter). Mr Duong also describes the Applicant as “a person of integrity, hardworking and trustworthiness.”[153] It is reasonable to find that the Applicant has a strong social link with Mr Duong.
[152] T1, 396.
[153] T1, 396.
Mr Zhi Shan Zhang has known the Applicant since 2010.[154] The Applicant worked for Mr Zhang for about 5 years. He describes the Applicant as “a trustworthy and credible individual.” Mr Zhang also says that he is willing to employ the Applicant upon a return to the Australian community. I am prepared to find that the relationship between the Applicant and Mr Zhang is a strong one.
[154] T1, 235.
The material also contains a letter from the Central Baptist Church, Villawood Immigration Detention Centre Ministry. The letter is signed by the Reverend Conway Ku who regards the Applicant as courteous, friendly and sincere. The letter notes the Applicant has been a frequent attendee at this Church.
I am therefore of the view that the abovementioned three elements to paragraph 9.4.1 of the Direction militate in favour of a finding that the strength, nature and duration of the Applicant’s ties to Australia weigh strongly, but not determinatively, in favour of restoration of the Applicant’s visa status.
Impact on Australian business interests
I am mindful that paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on “Australian business interests”. This phrase is sought to be given some measure of definition in the text of paragraph 9.4.2(3) because weight can “generally only” be allocated in this instance where a non-revocation decision “would significantly compromise the delivery of a major project, or delivery of an important service in Australia.”
I am not satisfied that removal of the Applicant from Australia, despite his history as a painter, would significantly compromise delivery of a major project or an important service in Australia. Accordingly, this second part of Other Consideration (d) is not relevant.
Weight allocable to Other Consideration 4: links to the Australian community
With specific reference to the first part of this Other Consideration (the strength, nature and duration of the Applicant’s ties to Australia), I am of the view that having regard to the three specific components of the first part of Other Consideration 4, the totality of the evidence points to a strong, but not determinative weight, in favour of the Applicant. As mentioned, the second part of this Other Consideration (impact on Australian business interests) is not relevant to determination of the instant application. Overall the Applicant’s links to the Australian community weigh strongly, but not determinatively, in favour of a finding that the Applicant’s visa should be restored to him.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations 1, 2 and 4, each of which weigh in favour of non‑revocation. The weight allocable to the Other Considerations relevant to the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)extent of impediments if removed: slight weight in favour of the Applicant;
(c)impact on victims: neutral; and
(d)links to the Australian community: strong, but not determinative, weight in favour of the Applicant.
CONCLUSION
Is there another reason to revoke the cancellation of the Applicant’s visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1 weighs strongly in favour of non-revocation;
·Primary Consideration 2 weighs moderately in favour of non-revocation;
·Primary Consideration 3 weighs moderately, but not determinatively, in favour of revocation;
·Primary Consideration 4 weighs heavily in favour of non-revocation; and
·I have outlined the weight attributable to the Other Considerations. I do not consider that the totality of the weight attributable to the relevant Other Considerations (b) and (d), even when combined with the moderate, but not determinative, weight I have attributed to Primary Consideration 3, outweigh the significant, combined and determinative weight I have attributed to Primary Considerations 1, 2 and 4;
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the decision to cancel the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
Decision
The decision under review is affirmed.

I certify that the preceding 293 (two-hundred and ninety-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis.

.................................[sgd].......................................
Associate
Dated: 29 June 2021

Date(s) of hearing: 6 & 7 May 2021; 2 June 2021

Advocate for the Applicant: Mr Fardin Nikjoo, Principal Solicitor

Solicitors for the Applicant: Nikjoo Lawyers

Advocate for the Respondent: Mr Liam Dennis, Senior Associate

Solicitors for the Respondent: MinterEllison
ANNEXURE A

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE RECEIVED

T1

T-Documents (465 pages)

-

9 Mar 2021

R1

Respondent's Statement Facts, Issues and Contentions (paged 1-15)

16 Apr 2021

16 Apr 2021

R2

Respondent’s closing submissions

21 May 2021

21 May 2021

A1

Applicant's Statement of Facts Issues and Contentions (paged 1-18)

29 Mar 2021

29 Mar 2021

A2

Applicant’s Statement (1 page)

27 Mar 2021

29 Mar 2021

A3

Statement of Child K (1 page)

22 Mar 2021

29 Mar 2021

A4

Statement of Child S (1 page)

-

29 Mar 2021

A5

Statement of the Applicant’s wife (1 page)

22 Mar 2021

29 Mar 2021

A6

Statement of Ken Wang (1 page)

24 Mar 2021

29 Mar 2021

A7

Applicant’s IHMS Records
(122 pages, various numbers)

Various

29 Mar 2021

A8

Letter from Sinatt Cheng Tang, Drug and Alcohol Counsellor at Drug and Alcohol Multicultural Education Centre Counselling Service (2 pages)

Various

29 Mar 2021

A9

Letter of support from Bi You Li (1 page)

Undated

28 April 2021

A10

Applicant’s closing submissions

12 May 2021

12 May 2021

ANNEXURE B

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
T1	T-Documents (465 pages)	-	9 Mar 2021
R1	Respondent's Statement Facts, Issues and Contentions (paged 1-15)	16 Apr 2021	16 Apr 2021
R2	Respondent’s closing submissions	21 May 2021	21 May 2021
A1	Applicant's Statement of Facts Issues and Contentions (paged 1-18)	29 Mar 2021	29 Mar 2021
A2	Applicant’s Statement (1 page)	27 Mar 2021	29 Mar 2021
A3	Statement of Child K (1 page)	22 Mar 2021	29 Mar 2021
A4	Statement of Child S (1 page)	-	29 Mar 2021
A5	Statement of the Applicant’s wife (1 page)	22 Mar 2021	29 Mar 2021
A6	Statement of Ken Wang (1 page)	24 Mar 2021	29 Mar 2021
A7	Applicant’s IHMS Records (122 pages, various numbers)	Various	29 Mar 2021
A8	Letter from Sinatt Cheng Tang, Drug and Alcohol Counsellor at Drug and Alcohol Multicultural Education Centre Counselling Service (2 pages)	Various	29 Mar 2021
A9	Letter of support from Bi You Li (1 page)	Undated	28 April 2021
A10	Applicant’s closing submissions	12 May 2021	12 May 2021

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2020/1263

General Division )

Re: Kwok Lam Law
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent
DIRECTION

TRIBUNAL: Senior Member Theodore Tavoularis

DATE: 7 May 2021

PLACE: Brisbane

The Applicant must file with the Tribunal and give to the Respondent an “Evidence Reference/Summary Document” (or equivalent) on or before 14 May 2021;

The Respondent must file with the Tribunal and give to the Applicant an “Evidence Reference/Summary Document” (or equivalent) on or before 21 May 2021;

The Applicant must file with the Tribunal and give to the Respondent any reply to the Respondent’s “Evidence Reference/Summary Document” (or equivalent) on or before 26 May 2021, or a letter indicating the Applicant does not wish to do so.

The matter be listed for a resumed hearing on 2 June 2021 commencing at 10am (AEST) for oral closing submissions.

[sgd]

Senior Member Theodore Tavoularis

[2021] AATA 1994

29 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction

Court Date	Offence	Imprisonment (months)	Other notes
5-Sep-17	Resist officer in execution of duty	3	Called up
5-Sep-17	Resist or hinder police officer in the execution of duty	2	Called up
13-Dec-17	Drive motor vehicle during disqualification period (2nd offence)	12	(After reduction on appeal)
9-Jan-19	Police pursuit - not stop - drive dangerously	15
9-Jan-19	Refuse to submit to breath analysis	6
9-Jan-19	Resist arrest	6
Total term of imprisonment	3yrs 8mo

Offending in Australia
First court date	Last court date	Timespan	Court date count	Frequency (court dates/year)
1 December 2010	9 January 2019	8yrs 1mo	8	0.99
First offence	Last offence	Timespan	Offence Count	Frequency (offences/year)
26 October 2010	23 December 2018	8yrs 2mo	18	2.21

Date(s) of hearing:	6 & 7 May 2021; 2 June 2021
Advocate for the Applicant:	Mr Fardin Nikjoo, Principal Solicitor
Solicitors for the Applicant:	Nikjoo Lawyers
Advocate for the Respondent:	Mr Liam Dennis, Senior Associate
Solicitors for the Respondent:	MinterEllison

TRIBUNAL:	Senior Member Theodore Tavoularis
DATE:	7 May 2021
PLACE:	Brisbane