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

LMHK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 166 (7 February 2022)
Division:GENERAL DIVISION
File Number: 2021/8879
Re:LMHK
APPLICANT

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

DECISION
Tribunal:Member Rebecca Bellamy
Date:7 February 2022
Place:Brisbane

The decision under review is affirmed
...........................[SGD].............................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class XE Subclass 790 Safe Haven Enterprise 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 – domestic violence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646.
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP vMinister for Immigration and Border Protection [2019] FCAFC 2021
Minister for Home Affairs v Buadromo [2018] FCAFC 151
PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235.
XXBN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1047
SECONDARY MATERIAL
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December1984, 1465 UNTS 85 (entered into force 26 June 1987).
Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) amended by the Protocol Relating to the Status of Refugees, opened for signature 31 July 1967, 606 UNTS 267 (entered into force 4 October 1967).
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
Direction No 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, GA Res 44/128 (15 December 1989, entered into force 11 July 1991).
REASONS FOR DECISION
Member Rebecca Bellamy
7 February 2022
THE ISSUE BEFORE THE TRIBUNAL

The Applicant is a 31 or 32 year old man who was born in Myanmar (his date of birth is variously recorded as 31 December 1989 and 31 December 1990). In April 2013, when he was 22 or 23 years old, he arrived in Australia as an unlawful maritime arrival. The most recent visa granted to him was a Class XE Subclass 790 Safe Haven Enterprise visa (“visa” or “SHEV”).[1] His SHEV was due to expire on 16 August 2022.[2]
[1] Exhibit G1, Section 501 G documents, G29 page 98; G10, page 60.
[2] Exhibit G1, Section 501 G documents, G10, page 60.
On 7 January 2021, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full time custodial sentence.[3] On 12 January 2021, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[4] On 15 November 2021 the Respondent decided not to revoke the cancellation.[5]
[3]     Exhibit G1, Section 501 G documents, G27, page 90 to 96.
[4]     Exhibit G1, Section 501 G documents, G8, page 37.
[5]     Exhibit G1, Section 501 G documents, G3 page 14.
The Applicant subsequently lodged an application for review in this Tribunal on 22 November 2021.[6] The Tribunal has jurisdiction to review that decision pursuant to

s 500(1)(ba) of the Act.
[6] Exhibit G1, Section 501 G documents, G2, pages 3 to 8.
The Applicant did not have legal representation and his English is poor. Prior to the substantive hearing of this matter, the Tribunal held a directions hearing in which the Applicant was encouraged to think about which witnesses could support his case including by corroborating his evidence, and he was advised to obtain written evidence in the form of statements, letters or emails from those people and provide those to the Tribunal and the Respondent before the hearing.
The hearing of this application took place on 20 and 21 January 2022. The Applicant gave evidence via videoconference. His wife gave evidence by telephone. Both the Applicant and his wife gave evidence with the assistance of a Rohingya interpreter. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. If either of paragraphs (i) or (ii) are satisfied, I should revoke the original decision.[7]
[7] Minister for Home Affairs v Buadromo [2018] FCAFC 151.
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”.
On 8 December 2020 the Applicant was convicted of eight offences and sentenced to seven terms of imprisonment ranging from two years to three months, ordered to be served concurrently. The sentences were to be suspended for three years after the Applicant had served five months. What matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[8]
[8] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
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”) applies.[9]
[9] On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of Part 2 of the Direction.
Those principles may be briefly stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other 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.
Paragraph 6 of the Direction provides 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.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account. They are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. They are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests
I note that paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations, and paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.
BACKGROUND AND OFFENDING
The Applicant is a stateless ethnic Rohingya from Rakhine State in Myanmar. He and his family fled Myanmar when he was six months old.[10] They lived in a refugee camp in Bangladesh where his family remain.
[10] Exhibit G1, Section 501 G documents, G31 page 102.
The Applicant first met his now wife, “Ms R”, who is also Rohingya, in the camp. He resided with her and her husband for a time after the death of his father. During this time, he and Ms R commenced a secret relationship and were unofficially married in secret in 2010. Ms R subsequently migrated to Australia with her husband and two children. In 2012 the Applicant married another woman who is also a stateless ethnic Rohingya. They have one son together. Both she and their son remain in a refugee camp in Bangladesh.[11]
[11] Ibid, page 106.
In April 2013 the Applicant arrived in Australia and he was placed into immigration detention until July 2013 when he was granted a bridging visa. Upon his release he resumed his relationship with Ms R. In 2014, Ms R and her husband separated, and she and the Applicant commenced living together on an on-again off-again basis.
In April 2017, the Applicant applied for a SHEV which was granted in August 2017. He had previously not been allowed to undertake paid work, but the SHEV allowed him to do that, and he obtained employment. While he was unable to work, he received income support from the Red Cross[12] and Ms R received government income support.
[12] Transcript, page 19, line 29 to page 20, line 21.
Offending
The Applicant committed 13 offences in Australia which largely relate to domestic violence perpetrated against Ms R. In the hearing, both the Applicant and Ms R denied that most of the offending had taken place. For reasons given below, I reject their denials.
According to a Statement of Facts that was prepared for court in relation to offences committed in 2018,[13] Ms R found out the Applicant had a wife and child in Bangladesh and from that time the Applicant began acting violently towards her. Around 2016, Ms R and the Applicant moved to Gatton where the Applicant continually assaulted her approximately once per week.[14] This general allegation appears to have come from Ms R. It did not give rise to any charges and it was not mentioned in the Judge’s sentencing remarks, so it is not apparent whether or not it was accepted it by way of context or not.
[13] Exhibit R2, Respondent’s Tender Bundle TB2 pages 51 to 53.
[14] Ibid, page 51.
In the hearing, the Applicant denied that allegation.[15] He said his two wives found out about each other when he migrated to Australia and they have a good relationship although Ms R was a little angry at first.[16]
[15]    Transcript, page 51, lines 4 to 20.
[16]    Transcript, page 29, lines 20 to 40.
According to police notes relating to an incident on 19 December 2018, the Applicant had attacked Ms R earlier that year, during Ramadan between 1 May 2018 and 30 June 2018. The Applicant had reportedly telephoned his wife in Bangladesh and Ms R told him she needed to go shopping and he had been talking for too long. They argued, and the Applicant disconnected the call and hit Ms R on the back of her head, causing her to fall to the ground and lose consciousness. The Applicant then took her to the bathroom and gave her some water. This was not reported to the police at the time.
On 19 December 2018, the Applicant committed a number of offences against Ms R. The Statement of Facts that was prepared for the sentencing court,[17] indicated that at around 9.00am the Applicant got angry at Ms R after she turned off her phone while he was using its hotspot to video call his wife in Bangladesh. She then locked herself in her bedroom. The Applicant unlocked the door with a kitchen knife and told her “What if I killed you? I should have killed you” and told her she was a prostitute and a “shameful lady”. The Applicant punched her head and then hit her on the top of her head with the handle of the knife. He told her “If I killed you nobody would do anything, your son and daughter are not here.”
[17] Exhibit R2, Respondent’s Tender Bundle, TB2, pages 51 to 53.
By way of background, Ms R is 30 years older than the Applicant.[18] She has an adult son who lives in Inala with his wife and children, and an adult daughter who lives in Gatton with her husband and children. Ms R’s daughter lives around an eight or nine minute drive from Ms R.[19] Inala is around one hour’s drive from Gatton. Ms R also has a daughter in Bangladesh.[20]
[18]    Exhibit G1, Section 501 G documents, G12, page 63.
[19]    Transcript, page 14, lines 27 to 36.
[20]    Transcript, page 15, lines 1 and 2.
The Applicant motioned as though he was going to hit Ms R with the knife, but instead he stabbed a nearby piece of luggage and a bucket, stabbing the luggage three times, causing damage. He then started hitting Ms R with the flat side of the knife, hitting her on her left shoulder, twice on her left buttock cheek, and on the upper part of her left arm. He also punched her on the left upper thigh. The strikes caused redness to the affected areas, including a large red welt on the back of the left shoulder and a smaller red welt on the buttocks.
The Applicant then grabbed Ms R around her neck, and told her, “I will throw you out of the house.” He grabbed her hand and dug his fingers into the side of her throat with his other hand saying, “I will kill you.” Ms R was breathless.
Ms R asked the Applicant’s housemate for assistance, but he told them that he did not want to be involved and told the Applicant “That is enough, leave it now.” Both men went outside and later left for work. Before leaving the Applicant told Ms R told she should leave before he returned home, or he would beat her worse than before.
At around 3.00pm, Ms R video-called her daughter-in-law, “Ms M”, and told her what had happened. She was distressed and she later sent photographs of her injuries to Ms M. Ms M called the police and reported the incident. Police attended and, with the assistance of an interpreter, took a version of events from Ms R.
Ms R was taken to the hospital where she was assessed. Soft tissue injures were noted to her neck, left back/shoulder, upper left arm, and left buttock and thigh. There were bruises to the back of the head and to the front left of the head. The treating doctor observed a darker induration (hardened, thickened skin) on her neck that he described as a chronic injury consistent with an ongoing pattern of squeezing on a regular basis. The police took photographs of the complainant's injuries and photographs of the knife and damaged luggage.[21] Those colour photographs clearly show red marks on the back of Ms R’s upper arm and her shoulder blade, a large dark bruise on her lower back, a smaller almost black bruise on the back of her thigh, and dark discolouration around the side of her neck and what looks like bruising towards the front on both sides. There is a loose gold chain around her neck.
[21] Exhibit R2, Respondent’s Tender Bundle, TB2 pages 54 to 64.
Around 8.00pm the same day, the police located the Applicant who admitted that he had an argument with Ms R earlier that day and that he had touched her by pushing her, and that he hit her once on the arm and once on the buttocks with a stick that he used for stirring rice (later described as a wooden spoon). He also admitted that he had stabbed a kitchen knife into a bucket and a briefcase but denied touching Ms R with the knife. The Applicant was arrested and issued with a police protection order (“PPN”) naming him as the respondent and Ms R as the aggrieved. On 21 December 2018 he was charged with various offences.
On 25 and 28 December 2018, in contravention of the PPN and his bail conditions, the Applicant made threats to Ms R pertaining to the earlier charges.[22]
[22] Exhibit R2, Respondent’s Tender Bundle, TB1 page 15; TB2 page 53.
On 25 December 2018, a friend of his video-called Ms R and when she answered she saw the Applicant with other people behind him. He told her:
“All of the time I have had sex with you, you need to pay for it or dismiss the case and come to me otherwise I will do something to your daughter who is back ln the country. I brought you in this house as a maid to work and cook for the people who are renting and staying in the house. I should have killed you on that day because in this country they only put a person in prison for killing someone for six months. If the police knew I did something serious they would have put me in custody on the day straight away and you can't prove that I did something wrong to you. If I have to go to the court I will break your daughter's relationship and tell everyone on social media about her past.”

The Applicant told the Tribunal that he did call but only because there were some clothes and other things belonging to Ms R that he wanted picked up.[23]
[23] Transcript, page 43, lines 15 to 21.
On 28 December 2018, the Applicant called Ms R’s daughter asking to speak to Ms R. She refused and hung up. The Applicant called again, and she put the phone on loudspeaker with Ms R present. The Applicant told Ms R:
“Come and pay for the water bill and come and get your belongings or I will throw them away. You were homeless, I gave you shelter to stay. I do not know who you are because your name is on the rent, you come and pay the rent. I got a lawyer for $3,000 and I have so many people supporting me. You only have one voice, I have many voices supporting me. You can make many cases but it won't affect me In any way, If I have to go to court on the 8th of January I definitely come and look for you and do something. I will also harm your daughter back in the country. You know very well that I have many relatives who would help me to kidnap your grandchildren and harm your daughter and son in law.”
Ms R disconnected the call and phoned Ms M who took her to the police station. Ms R told the police she was very scared of the Applicant as he continued to call her and threaten her. It was also alleged that the Applicant had called other members of her family who live in Bangladesh and threatened to cause harm to them. Ms R provided police with a written statement.[24]
[24] Exhibit R2, Respondent’s Tender Bundle, TB1, page 15.
The Applicant’s family live in the same refugee camp as Ms R’s family, around one minute’s walk away.[25] This is relevant to the Applicant’s alleged threat to harm Ms R’s family.
[25] Transcript, page 61, lines 8 to 22.
The Applicant told the Tribunal that he did make the call on 28 December 2018, but he denied having said what he was alleged to have said. He said he called in relation to the water bill, the electricity and the rent because the property was under his name as the tenant. He was asking Ms R to pay the bill.[26] He said he did not realise he was breaching his bail by communicating with Ms R and that prior to that she had called him from her daughter’s mobile and told him to call her mobile.[27] He added that prior to that he had gone to the police to report that she had taken some of his belongings, but the police did not do anything so then he contacted her.[28]
[26]    Transcript, page 44, lines 38 to 46.
[27]    Transcript, page 45, lines 8 to 15.
[28]    Transcript, page 45, lines 17 to 23.
On 8 January 2019 a temporary protection order (“TPO”) was made by the Magistrates Court.
On 8 April 2019 the Applicant breached a condition of his bail by failing to report.[29] A month later, on 6 May 2019, he breached his bail and the TPO by having Ms R in his car with him. The police saw her in the back seat, and she told them she had been at the supermarket, had begun to feel unwell, and had asked the Applicant to drive her home. The Applicant told the police a different story: he said he had arrived home to find Ms R in his house and he had told her he would drive her home. He drove to the supermarket to pick up mouse bait for her, then he drove towards the police station to report before being intercepted.[30]
[29] Exhibit R2, Respondent’s Tender Bundle, TB1 page 19.
[30] Exhibit R2, Respondent’s Tender Bundle, TB1 23 to 24.
On 7 May 2019 the Applicant was convicted in the Toowoomba Magistrates Court of contravening a domestic violence order and breaching bail on 6 May 2019 and fined $500. The Applicant said that when he entered into the bail undertaking, he did not understand it and there was no interpreter there.[31] Although the bail undertaking contains an attestation by a police officer that the Applicant understood the nature and extent of his obligations,[32] it was apparent to me in the hearing that the Applicant’s English is extremely poor, so I am inclined to accept his evidence on this matter.
[31] Transcript, page 41, line 42 to page 42, line 15.
[32] Exhibit R2, Respondent’s Tender Bundle, TB2, page 38.
On 13 May 2019, the Applicant was convicted in the Gatton Magistrates Court of breaching bail in April 2019 and fined $250.
On 8 December 2020 the Applicant was convicted and sentenced in the District Court, having pleaded guilty, of the following domestic violence offences:
·Common assault - domestic violence offence (between 1 May and 30 June 2018) - six months imprisonment;
·Common assault - domestic violence offence (three counts) (on 19 December 2018) - three months imprisonment for each count;
·Choking suffocation strangulation associated domestic violence – domestic violence offence (on 19 December 2018) - two years imprisonment;
·Assaults occasioning bodily harm whilst armed/in company - domestic violence offence – (on 19 December 2018) - 12 months imprisonment; and
·Threats - domestic violence offence (two counts) (on 25 and 28 December 2018) - nine months imprisonment.
The learned Judge’s sentencing remarks included the following:
“…you are being sentenced by me today having pleaded guilty to four counts of common assault, one count of assault occasioning bodily harm while armed, one count of choking in a domestic setting, and two counts of making threats. You are now 30 years old. You were 28 when you committed these offences. Most of the offending, including the assault occasioning bodily harm and the choking, occurred on one occasion. There had been an earlier assault in May or June, the other offending, the choking and assault, occurring in December of 2018. In the earlier assault…your wife, was knocked to the floor and lost consciousness. The assault occasioning bodily harm involved you hitting the complainant several times while holding a knife. You had earlier punched her and hit her with the handle of the knife.
…
The choking was not the worst example of the offence. The complainant became breathless but did not lose consciousness. But choking is always serious, no matter what the outcome. You made your offending more serious by later making threats on two occasions and those threats related to the charges. The Courts take those matters very seriously because we consider them crimes against the administration of justice. They were also serious because they related to relatives being hurt in a foreign country. You have the benefit of a plea of guilty. I do consider that demonstrates remorse and it shows your cooperation with administering law in this country. Importantly, it saved your wife from having to give evidence. Your wife suffered numerous injuries, although not serious injury. There are no ongoing injuries but, as you have acknowledged, it must have been very frightening for her.
Your personal circumstances have not been one of an easy life. You fled your native Myanmar. It was as a refugee in Bangladesh, in a refugee camp, that you met your wife. You followed her here to Australia. You were in migration detention here for a period. You now have the benefit of a form of protection visa. …Deterrence of you and others is also important. In our community, this sort of domestic violence is thoroughly denounced.”[33]
[33] Exhibit G5, Section 501 G documents, pages 30 to 32.
During the Judge’s remarks, the Applicant said, “it was not a knife”, which is consistent with his claim to the police that he hit Ms R with a stick for stirring rice, not a knife. He continued to make that claim in these proceedings.
On 29 January 2021 the Applicant was convicted of contravening the PPN and bail condition in December 2018 and was not further punished.
The only thing the Applicant admitted to having done to Ms R was hitting her twice, but it is not clear which of the assault offences that admission relates to. He asked the Tribunal to accept that he hit Ms R twice with a rice-stirrer and that he did not engage in any of the other offending behaviour. When he was asked about the choking, he said Ms R had come towards him and he put his hand up to stop her and he slowly pushed her back. He said the mark on her neck had nothing to do with choking but that she wears a chain and it caused the mark.[34]
[34] Transcript, page 40, lines 37 to 44.
The Full Federal Court decision in HZCP v Minister for Immigration and Border Protection,[35] (“HZCP”) considered whether a Tribunal may make a finding of fact that is contrary to a finding made by a criminal court in the context of a decision by the Minister not to revoke a mandatory visa cancellation. Their Honours were unanimous in their view that where a Tribunal is invited to make a finding that is contrary to a finding that was made by a court in a criminal matter, a heavy onus of proof applies and the Tribunal should exercise extreme caution in making any contrary finding.[36] The majority,[37] further held that where the factual finding underpins a conviction or sentence that grounds the decision-maker’s jurisdiction, the Tribunal is not permitted to make a contrary finding of fact. The conviction and sentence in that case did ground the decision-maker’s jurisdiction, because they triggered the mandatory cancellation of the Applicant’s visa under s 501(3A) of the Act, leading to the Applicant making representations under s 501CA(3)(b) of the Act thus enlivening the minister’s power under s 501CA of the Act to make the decision under review.
[35] [2019] FCAFC 202.
[36] At [69] where McKerracher J cited with approval some passages by Branson J in Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 at [40] - [45]; per Derrington J at [150]; per Colvin J at [180].
[37] McKerracher and Colvin JJ.
In the present matter, the convictions and sentences for the assault occasioning bodily harm and choking offence enlivened the decision maker’s jurisdiction as they each resulted in sentences of imprisonment for 12 months or more. I am thus unable to find that the Applicant did not commit those offences in the way the court found that he did. That is, he choked Ms R and he hit her several times “while holding a knife”. I note that both the Applicant and Ms R said he hit her with a wooden spoon/rice stirrer and no knife was involved. None of the injuries are accompanied by cuts, which is unusual if she was hit with the flat of a knife blade several times. I think the safest finding to make, given the evidence and the constraints that apply, is that the Applicant hit Ms R with a kitchen utensil that caused soft tissue injury but not cuts or abrasions.
The Applicant denied that he had been violent towards Ms R before the day on which she complained to the police.[38] Initially when asked about the offending in May - June 2018, he answered as though he was being asked about the 19 December 2018 incident, however I am satisfied that he was mistaken and that he was not admitting to any offending in May – June 2018. He admitted to having hit Ms R but denied that it has made her fall and lose consciousness.[39] Rather he said she sometimes fell because of a headache or dizziness, and he would get her water.[40] He added that Ms R’s son and his children were there, he hit her once or twice with a wooden spoon, and after he hit her she gave him his lunchbox to take to work.[41] He said he was using her hotspot and she disconnected the telephone without letting him know, so he became angry, but after that she alleged many things that he did not do.[42] He said she did that because she was angry with him.
[38]    Transcript, page 40, lines 1 to 7.
[39]    Transcript, page 35, lines 40 to 44.
[40]    Transcript, page 35, lines 32 to 39.
[41]    Transcript, page 36, lines 1 to 8.
[42]    Transcript, page 36, lines 39 to 45; page 37, lines 23 to 29.
However, it was implicit in the threat that the Applicant reportedly made on that occasion, being “If I killed you nobody would do anything, your son and daughter are not here” that Ms R’s son was not present.
The Applicant admitted to having stabbed the luggage and he said he did that to retrieve his keys that Ms R had locked inside it.[43]
[43] Transcript, page 39, lines 25 to 34.
The Applicant claimed that a week after the argument, Ms R attended the Gatton court and explained to the Judge that there was a misunderstanding, that she forgave the Applicant and that she wanted to withdraw the case.[44] He said she “actually told to the court, my husband actually wasn’t able to understand so that’s why he did the mistake, so that’s why I forgive him.”[45] He said he was in court and she “mentioned in front of the Judge those things”. He said that happened one or two days after the 19 December 2018 incident. He said she mentioned those things every time at the court.[46] I note that the charges were mentioned in the Gatton Magistrates court until an indictment was presented in November 2019 in the Ipswich District Court,[47] so the Applicant seems to have been referring to the Magistrate rather than the Judge, but nothing turns on that.
[44]    Transcript, page 26, lines 25 to 29.
[45]    Transcript, page 26, lines 32 to 35.
[46]    Transcript, page 58, lines 1 to 14.
[47]    Exhibit R2, Respondent’s Tender Bundle, TB2, pages 28 to 31.
The Applicant claimed to have told his barrister that Ms R had admitted to having made up some of the allegations, apologised for that, and told the court that the allegations were not true.[48] The Applicant claimed he pleaded guilty to the offences because his lawyer told him that if he did, he might get a discount on his sentence.[49]
[48] Transcript, page 58, lines 15 to 29.
[49] Transcript, page 37, lines 4 to 11.
When I told the Applicant:
“I find it very hard to believe that your lawyer was told that your wife had admitted to making up the allegations and apologised and wanted the charges withdrawn, yet nobody got your wife to come to court and say that to the Judge. That instead, your lawyer told you to plead guilty to all of it. I find that very hard to believe. What do you say about that?”
he gave an unresponsive reply, that merely repeated what he had claimed he told his barrister and that his wife had gone to the court.[50]
[50] Transcript, page 58, lines 15 to 29.
The Applicant said Ms R was willing to go to court when he was sentenced but no one was available to take her, the court did not give her permission to attend, and he could not take her because he was not allowed to contact her. When asked if she could have gone by taxi, he said the police had told her not to go to court.[51] I find it implausible that a court or the police would tell a complainant witness not to attend court.
[51] Transcript, page 57, lines 24 to 43.
Ms R’s oral evidence to the Tribunal was initially focused on complaints about her current predicament and her need for the Applicant, despite not having been asked about those things. She volunteered that she felt sick, she did not have anybody to help her, and she could not go to Centrelink or the doctor. She said, “Maybe I am having more difficult situation than my husband”[52] and “I just need [my] husband back”.[53] It was evident that she had a strong motive for giving evidence to support the Applicant’s case for getting his visa back, and that is what she did.
[52]    Transcript, page 65, lines 27 to 45.
[53]    Transcript, page 66, line 9.
Ms R denied that she had fallen to the floor after the Applicant hit her. In fact, she denied everything except for the two hits with a wooden spoon, and she claimed that she had made up every other allegation. She also claimed that she when she told Ms M that the Applicant had hit her, choked her, and hit her with a knife, she had lied.[54]
[54] Transcript, pages 70 and 71; page 73.
Ms R said the Applicant never did anything with a knife and that the marks on her neck were from a chain she wore. She was angry because the Applicant hit her, so she made up the allegations not realising it would result in the Applicant being separated from her, and her being alone.[55] She said, “Because of my frustration I just tell everything whatever comes out from my mouth.”[56] She denied that the Applicant had told her to say that the chain made the mark and that he did not do anything with a knife.[57]
[55]    Transcript, page 74, lines 1 to 5.
[56]    Transcript, page 66, lines 14 to 42.
[57]    Transcript, page 66, line 42 to page 67, line 6.
Ms R was asked why she had not simply told the police what the Applicant did to her to make her angry, rather than making up other things, and she did not give a responsive answer. Instead, she referred to her diabetes and the police taking a long time with the case against the Applicant and that:
“because of that, now I am suffering. I can’t go to the Centrelink and I can’t go to the doctor, and no one’s actually help me, because of my fault. Yes, since, actually, he left, I am actually unable to do anything, like anywhere going, like now, for example, I do have the virus issues, so I am unable to go and have tests for the virus. I am in a very difficult situation.”[58]
[58] Transcript, page 72, line 31 to page 73, line 4.
Ms R said she told the court that her allegations were not correct and that she had made them up because she was angry and that she had forgiven everything. She indicated that she asked the police whether she could go to the court and they said she could. She went to the court and told the court what was correct and what was incorrect.[59] She walked to the Gatton court herself because it was very close.[60] She indicated that she went to the Gatton court more than once and each time she went there she told them that she was going to withdraw the case and that she forgave the Applicant.[61]
[59]   Transcript, page 69, lines 38 to 40.
[60]   Transcript, page 69, line 41 to page 70, line 4.
[61]   Transcript, page 70, lines 14 to 24.
When Ms R gave evidence about her injuries, she explained that a small mark on her hand had been caused by a burn when she was cooking. This mark was not connected to the offences. She also said that she fell and hurt her knee. She explained the mark on her neck, indicating that it was caused by a chain she wore in hot weather. She did not explain any of the other injuries that are evident in the photographs that relate to the offending.[62]
[62] Transcript, page 72, lines 12 to 22.
The medical evidence listing all of the Ms R’s soft tissue injuries was put to Ms R and she was asked to explain how she got those injuries if she had made up most of the allegations. She merely repeated that the Applicant had only hit her twice.[63] She disputed the medical evidence of a darker, hardened, thickened skin on her neck consistent with an ongoing pattern of squeezing on a regular basis.[64] She denied that she was lying to the Tribunal in order to protect the Applicant.[65]
[63]    Transcript, page 93, lines 29 to 38.
[64]    Transcript, page 93, lines 39 to 46
[65]    Transcript, page 94, line 44 to page 95, line 3.
There are some aspects of the evidence of the Applicant and Ms R that do not add up. Some anomalies were probably to do with the language barrier: both required an interpreter and the interpreter mentioned that Ms R was making it difficult for him to translate. I have borne that in mind and I have not taken a pernickety approach to their evidence.
The timing of events that followed the first report to the police
The Applicant said that a few days or a week after the argument, Ms R had told the court she wanted to withdraw the allegations. However, the argument occurred on 19 December 2018 and that is the day Ms R made a report to the police. The Applicant was bailed to appear in court on 7 January 2019.[66] Accordingly, the charges were not before a Magistrate within a few days or a week after the argument. Further, on 28 December 2018, Ms R made more allegations against the Applicant. Neither witness explained why Ms R made more allegations against the Applicant nine days after she made the initial report to the police if the allegations had no substance. Her claimed anger at being hit twice on 19 December 2018 does not adequately explain it, especially given her evidence that she had already made several false allegations on 19 December 2018 because of her anger over those assaults.
[66] Exhibit R2, Respondent’s Tender Bundle, TB2, page 37.

A much more plausible explanation is that the reports did have substance: the Applicant threatened Ms R to pressure her to withdraw the allegations before the first court date.
The pleas of guilty
It is implausible that Ms R repeatedly told the police and presiding Magistrate that she had fabricated allegations against the Applicant, yet the prosecution continued. It is equally implausible that the Applicant’s lawyer, having been told that the key witness to the alleged offending had admitted to having made up most of the allegations and wanted them withdrawn, would advise him to plead guilty to those charges.
The almost total absence of any claim that the allegations were false prior to the hearing
The Applicant’s revocation request form was completed by another person on his instructions.[67] In that form it said that Ms R:
“lodged complaints as a result of mistaken belief as to the consequence. [She] has forgiven him and I am now cognisant and aware of Australian laws that I will not commit domestic violence and I am so sorry and contrite.”[68]
[67] Transcript, page 16, lines 30 to 45; page 17, lines 17 to 22.
[68] Exhibit G1, Section 501 G documents, G9, page 54.
It also said “I love my wife and I have realised that I need to care for her”.[69]
[69] Ibid.
What the form did not say was that his wife had made up most of the allegations.
The Applicant provided a letter to the Tribunal, dated 13 January 2021. It had been typed for him by a friend. His friend had then read it to him and he agreed with it all.[70] That letter said “I am writing this letter to sincerely apologise for domestic violence offence that has committed by me on 19/12/2018” and that he had totally changed. The letter went on to say:
“It was a great mistake I have ever committed in my life because of illiteracy and knowledge about Australian domestic violence laws. Now, I have learned a lesson and understand the consequences of committing any kind offence. I have completely changed myself and I pledge that I will always behave well with my partner and entire mainstream community and uphold the Australian values. I am ashamed that I have let my friends, family and the local community down due to my behaviour and lack respect towards other people. I have now taken steps to ensure that no such act of aggression will happen again in my life. I am extremely sorry for things that have occurred in my past life which will never happened again. I have already apologised from partner and she has forgiven me for my mistake.”[71]
(Errors in original)
[70] Transcript, page 22, lines 19 to 34.
[71] Exhibit A1, Letter of the Applicant sated 13 January 2022.
The letter does not contain a denial in relation to any of the offences.
The Applicant put forward a character reference[72] and a statutory declaration[73] from three executive members of the Queensland Rohingya Community Inc. Neither document makes any mention that the Applicant’s wife had admitted to having fabricated most of the alleged offending. Further, the character reference states that Ms R had forgiven him and they were peacefully living together, but it does not state that he had forgiven her. That document refers to the Applicant’s “domestic violence offence which occurred on 19/12/2018 because of illiteracy and lack of knowledge on domestic violence and Australian laws” and later it states:
“[The Applicant]…was not aware of Australian laws relating to domestic violence so that offences has (sic) been committed intentionally or unintentionally. Since his offence [the Applicant] has educated himself with the help of his friends, family and case manager, he has totally changed his behaviour, which is admirable and appreciative. He did not commit any other offence except above-mentioned issues.”
[72] Exhibit G1, Section 501 G documents, G18, page 71.
[73] Exhibit A2, Letter from Queensland Rohingya Community Inc dated 20 December 2021.
These statements appear to seek to excuse or explain the offending rather than call into question whether the offending occurred.
The Applicant claimed to have told the people who wrote the character reference that Ms R had admitted to making up a lot of the allegations. When asked if he could explain why the letter did not state that, he said they could only provide the letter as support and they could not do anything more.[74] It was put to the Applicant that it seemed strange that the letter referred to domestic violence offences committed on 19 December 2018 and that it said he had not committed any other offences, but it omitted to state that he had not committed some of the alleged offences on 19 December 2018. He did not give a responsive answer.[75]
[74] Transcript, page 59, lines 32 to 45
[75] Transcript, page 60, line 40 to page 61, lines 6.
Ms R she said she spoke to the men who wrote the character reference before they wrote it. When asked if she had told them the Applicant had hit her twice and not done anything else, she gave an answer that was largely incomprehensible and included that she was not educated.[76]
[76] Transcript, pages 78 and 79.
Ms R made a statutory declaration dated February 2021. In it she did not recant any of the allegations she had made or refer to any efforts she had made to have the charges withdrawn. Rather, she said:
“I know that my husband has been in prison on a number of charges of breaches of domestic violence perpetrated against me.
Whilst I understand the seriousness of those charges I believe that my husband with all intention (sic) intend to cause me harm and was as the result of frustration and misunderstanding between us.
I have forgiven my husband I continue to have deep affection for [him] and wish to be reunited with him upon his release from prison.”
She went on to say that the Applicant would face harm or death if returned to Myanmar and that she would not be able to join him because she fears returning there. She gave reasons why she needs the Applicant. She said:
“Despite what apparently what was a violent relationship for a period of time [the Applicant] and I are committed to each other and I believe that [he] has changed and realised his wrongdoing and I desperately need him to be released and to remain in Australia so that we can resume our life together.”[77]
[77] Exhibit G1, Section 501 G documents, G21, page 76.
Ms R was unable to explain why she had not included in her statutory declaration that the Applicant had hit her twice and had not committed any of the other offences, merely saying that she is uneducated. When it was pointed out that in her statutory declaration, she gave some reasons why the Applicant should not be deported, but she did not mention that he was innocent of some of the offences, she again said that she was not educated. When she was asked why she had thought to tell the court that the Applicant had not committed some of the offences but not the government when his visa was cancelled, she said again that she is uneducated and did not know she should.[78] To my mind, even accepting that Ms R is uneducated, it beggars belief that she would mention various reasons why the Applicant’s visa should be returned but overlook a reason as important as him being innocent of most of the alleged domestic violence.
[78] Transcript, page 77.
The Applicant’s acceptance of Ms R’s apparent malicious actions
The Applicant said that if he gets his visa back, he is willing to live with Ms R because only he is available to help her.[79] His preparedness to resume living with her and support her requires some explanation if indeed, he had spent time in prison and immigration detention and had his visa cancelled because of false and malicious accusations made by her. The Applicant did not give much of an explanation, merely saying Ms R had apologised in front of the Judge, and that she does not have anyone to support her, so he is willing to forgive her and support her. He added that she had told him that she now understands that no one is available for her and that she is suffering more than him even though he is in detention because she does not have anyone.[80]
[79] Transcript, page 32, lines 1 to 17.
[80] Transcript, page 45, line 33 to page 46, line 8.
When Ms R was asked why she mentioned in her statutory declaration that she had forgiven the Applicant, but she had not mentioned that he had forgiven her for telling a lot of lies to the police and making him go to prison, she replied that she forgives everything and that she needs her husband.[81]
[81] Transcript, page 67, lines 6 to 23.
The medical evidence
I have already discussed the medical evidence, and Ms R’s failure to adequately explain it. The only explanation before me about the injuries to Ms R’s shoulder, upper arm, thigh and buttocks is the account Ms R gave to the police on 19 December 2018. The markings on Ms R’s neck look like bruises but do not look like they could have been caused by a chain reacting with skin. Even though Ms R was wearing the chain when she was examined, the medical evidence did not point to it as a possible cause of the discolouration. There is no credible explanation before me for those marks except for the report Ms R made to the police that the Applicant choked her.
Findings about the domestic violence offending
HZCP places a heavy burden of proof on a Tribunal where it is asked to make findings that are inconsistent with the essential factual basis for a conviction and/or sentence even where those findings do not enliven the decision-making jurisdiction. For the reasons I have given, that burden has not been discharged.
The allegation that the Applicant had regularly perpetrated domestic violence against Ms R since 2016 combined with the medical evidence consistent with regular squeezing of Ms R’s throat raises a serious suspicion that the Applicant was violent towards Ms R on a much larger scale than what is represented by the convictions. However, I do not think there is enough evidence to make that finding, and there is no need to given the offending that has already been established.
On 12 April 2021 the Protection Order was varied by consent to allow the Applicant to contact and reside with Ms R with her written consent. This order remains in force until 24 November 2024.[82]
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY & PRIMARY CONSIDERATION 2 – FAMILY VIOLENCE
[82] Exhibit G1, Section 501 G documents, G24 page 83.
I will consider these Primary Considerations together because all of the Applicant’s offences were either family violence or closely connected to family violence.
In considering Primary Consideration 1, paragraph 8.1 of the Direction requires 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 applicable to 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.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction, relevantly, 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)…;
(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)…;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled)…;
(iii)…;
(iv)…;
(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)…;
(g)….
The Applicant committed several crimes of a violent nature against his wife in two offending episodes. The offences included choking and hitting Ms R so hard that she fell to the floor. The Applicant broke into her bedroom where she had sought refuge. He threatened to kill her. Some days later he made threats against her and her family. This offending all constitutes family violence. Ms R is a vulnerable person in the sense that she is a refugee who speaks little English and considers herself to be dependent on the Applicant. These aspects of the offences render them very serious.
It is significant that in addition to the threats being coercive, they were aimed at undermining the administration of justice, which is very serious.
The violence and threats were punished with sentences of imprisonment. Imprisonment is a last resort in the hierarchy of sentencing options available to a court. The sentences for the choking offence and the actual bodily harm offence are both substantial.
The Applicant’s offending was frequent in the sense that there were four offending episodes in the space of around six months, not counting the breaches of bail and protection orders/notices. The cumulative effect of repeated offending was that Ms R was injured on two occasions and for a further period she was very frightened.
In 2019 the Fourth Action Plan: National Plan to Reduce Violence against Women and their Children 2010-2022 reported that every day there are on average 12 women in Australia hospitalised due to domestic violence and every nine days a woman is killed by their current or former partner.[83] Victims of domestic violence often have dependents and loved ones who are also adversely impacted. Domestic violence does not only harm immediate victims, but it also harms the entire community. In this case, Ms R’s daughter witnessed the phone call in which threats were made to her mother that included threats against other family members. Ms R’s daughter-in-law became privy to the offences that had been committed against Ms R, hearing about them from Ms R and seeing photographs of Ms R’s injuries.
[83] Exhibit R2, Respondent’s Tender Bundle, TB3, page 76.
Paragraph 8.2 of the Direction provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
In addition to the matters, I have already taken into account, I am to take into account the following additional factors under paragraph 8.2(2) of the Direction:
a)…;
b)…:
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct;
As discussed below, the Applicant has done very little in terms of rehabilitation or efforts to address his conduct, he does not accept responsibility for much of the family violence, and he does not seem to appreciate the impact of his behaviour on Ms R or her daughter.
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 following relevant 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; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non- citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date.
Ms R is 60 years old. The Applicant is 30 years old. He described his relationship with her as one where they love each other and are monogamous.[84] However, he also said he is still married to his wife in Bangladesh and that he considers himself to be in a romantic relationship with her.[85] Therefore, he does not seem to be exclusively committed to Ms R. No evidence was given about the prospect of the Applicant re-partnering or taking another partner, however, given the matters I have mentioned, I think there is a distinct possibility that he would do so at some point in the future. Accordingly, any risk of harm from further offending is not necessarily confined to Ms R.
[84] Transcript, page 11, lines 24 to 30.
[85] Transcript, page 28, line 41 to page 29, line 1.
Should the Applicant engage in further violence against a female partner the harm includes physical and psychological injury to the victim, and emotional and psychological trauma to any children or other loved ones who are aware of it.
Likelihood of engaging in further criminal or other serious conduct
The Applicant’s SHEV would have expired in August 2022 had it not been cancelled first. If he gets his SHEV back, he will be able to apply for another visa. He did not express an intention to leave Australia in the foreseeable future so I will assess his risk of re-offending, should his SHEV be returned to him, on the basis that he could well remain in Australia on a long-term basis.
There is no expert evidence addressing the Applicant’s risk of reoffending, although he promised the Tribunal he would not ever re-offend again.
The Applicant was asked what he meant when he said in his written evidence that Ms R lodged the complaints as a result of “mistaken belief as to the consequences”. He said that was a reference to an argument. He added that, after coming to detention he now understands what domestic violence is and about the law of Australia. He said “When I used to live outside, I actually didn’t understand any of this kind of the law and things.”[86] When questioned, he confirmed that he had not known that it was illegal to assault his wife.[87]
[86] Transcript, page 17, lines 24 to 40; page 18, lines 10 to 14.
[87] Transcript, page 18, lines 40 to 45; Transcript, page 52.

I have the benefit of a Department of Foreign Affairs “DFAT Country Information Report Myanmar - 18 April 2019” (DFAT report”) before me. According to that report, Burmese women, especially Rohingya women, are treated poorly. For example, in Myanmar, rape within marriage is not illegal unless the wife is under 14 years of age and there is no law specifically outlawing domestic violence. Media outlets regularly report on the physical and sexual abuse of women with the perpetrators of violence usually being members of the victim’s family or local village. Redress for victims of gender based violence is often sought through customary laws, particularly in Muslim communities. Customary processes often promote community harmony over the individual woman’s wellbeing. In some communities, the solution often takes the form of an apology rather than a punishment.
The DFAT report refers to a 2018 US Department of State report that many Rohingya women who fled Rakhine State have been subjected to exploitation or transported to other countries for sex trafficking following their displacement. The report identifies Rohingya women in the displacement camps in Bangladesh as being particularly vulnerable to trafficking within Bangladesh and to India. Rohingya women in Rakhine State face multiple levels of discrimination. In addition to the official and societal discrimination faced by Rohingya people in general, Rohingya society is conservative, and women often face familial or community-based restrictions on their movements and activities.
Rohingya girls over the age of 13 are often prevented from leaving their homes until they are married. Violence against Rohingya women is reportedly highly prevalent, particularly intimate partner violence. Rohingya women in Rakhine State also face additional restrictions on their marital and reproductive rights. Local authorities prohibit Rohingya families from having more than two children, although this is inconsistently enforced.
Overall, DFAT assessed that women in Myanmar face moderate levels of societal discrimination, and Rohingya women in Rakhine State face high levels of official and societal discrimination on the basis of their gender. Women throughout Myanmar face a moderate risk of gender based violence, particularly domestic violence.[88]
[88] Paragraphs 3.97 to 3.104.
The Applicant was born in Rakhine State, so I infer that his family was from there and that they brought their beliefs and practices with them when they fled Myanmar. I accept that the Applicant did not realise it was a crime in Australia to physically attack or threaten Ms R. However, he knew he was hurting and speaking abusively to his wife, leaving marks on her body, making her struggle to breath and causing her to fear him. He now claims to be sorry and contrite.[89]
[89] Transcript, page 17, lines 5 to 16.
The Applicant has done very little by way of rehabilitative courses or counselling, and that could be because he has not had much of an opportunity given his short time in prison and his language difficulties. He said he has attended four or five classes in immigration detention that went for between 45 minutes and an hour. Each class covered a different topic. One class covered domestic violence. He could not understand much of what was being said because the class was in English. Nor was he able to participate by asking questions.[90]
[90] Transcript, pages 54 and 55.
The character reference that I have previously referred to asserted that the Applicant was now living peacefully with Ms R and that he had attended conflict resolution.[91] However, in the hearing, the Applicant confirmed that neither of those two things were correct. When asked what steps he had taken to ensure that no further acts of aggression would happen, he said that if somebody says something then he must stay calm and not do anything aggressive.[92]
[91] Transcript, page 60, lines 1 to 24.
[92] Transcript, page 22, lines 39 to 44.
There is no evidence that the Applicant has committed any infractions or caused any problems in prison or immigration detention. He denied having any problem controlling his anger, giving examples of a person punching him in the face in prison and somebody trying to hit him in detention and him not retaliating.[93] I am satisfied that the Applicant has been of good behaviour while in custody, and this is to his credit. However, apart from his domestic violence related offences, he was of good behaviour in the wider community. The specific area that is problematic for him is violence against a female partner.
[93] Transcript, page 53, lines 1 to 11.
Ms R said he said that if the Applicant ever hurt her or threatened her or her family, she would tell the police despite the risk that he could go to prison.[94] I am not convinced of that given her complaints about how long the Applicant has been kept away from her following the offending and her readiness to forgive him. She indicated that she did not think the Applicant would be violent towards her again[95] although there seems little basis for that belief – seemingly only his word.
[94]    Transcript, page 86, lines 25 to 29.
[95]   Transcript, page 95, lines 17 to 23.
It may be that the Applicant will not re-offend now that he knows that domestic violence is a crime that is treated seriously by the criminal justice system and the Government. He has not committed any other types of offences or otherwise exhibited an anti-social attitude. However, he has shown such little insight into his offending and done so little to identify and address the factors that pre-disposed him to offend against Ms R, I cannot be confident that there is a negligible risk of re-offending. I think there is a real risk that he will re-offend against Ms R or another female partner.
Conclusion: Primary Considerations 1 and 2
The fact that the Direction devotes a Primary Consideration to family violence, in addition to emphasising the seriousness of acts of family violence and violence against women in Primary Consideration 1, indicates that increased significance is to be given to such conduct. Primary Considerations 1 and 2 combined weigh heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8(3) of the Direction compels a decision-maker to consider the best interests of a minor child in Australia. Under paragraph 8.3(1), I must determine whether non-revocation under section 501CA is or is not in the best interests of a child affected by the decision.
There is no evidence that any minor child in Australia is affected by the decision. This Primary Consideration is not relevant.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. It further stipulates that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.
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, relevantly:
(a)acts of family violence; or
(b)…;
(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…;
(d)…; or
(e)…; or
(f)….
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185.
Analysis – Allocation of Weight to this Primary Consideration 4
Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:
·the Applicant moved to Australia when he was around 22 to 23 years old. He is now 31 to 32 years old;
·he commenced offending five years after moving to Australia;
·he had a very disadvantaged upbringing in a refugee camp, unable to live in his country of origin because of the persecution that people of his ethnicity are subject to there. The rest of his family are still in the refugee camp and he worries about their welfare (see below);
·he has committed violent offences against his wife, and he has made threats against her. He has breached protection orders and bail undertakings;
·the offences are very serious;
·there is a real risk that he will re-offend;
·the Applicant’s preparedness to inflict physical harm upon his wife and to threaten her life and the lives of her loved ones raises serious concerns about his character;
·his attempts to interfere in the administration of justice, by trying to pressure her into dropping charges, demonstrates a contempt for the administration of justice in the community he seeks to re-enter;
·there is some evidence that he has helped members of the Rohingya community on a voluntary basis;
·he has held gainful employment which demonstrates a good work ethic; and
·if he does not get his visa back, it will adversely affect Ms R.
The Australian community’s condemnation of family violence is absolute. It is evident in our laws and in the Direction that there is no room for exceptions based on cultural background or societal beliefs that condone violence against women. Nor is a victim’s dependence on an abuser, or willingness to forgive, good reason to soften the government’s response to the abuse. Tolerating or excusing family violence in specific circumstances is harmful to the entire community because it encourages the belief that family violence can sometimes be excused, which leads to the perpetration of family violence.
The Applicant engaged in serious criminal conduct against a vulnerable member of the Australian community. Even accepting that the Applicant did not know it was illegal, his conduct raises serious character concerns.
Conclusion: Primary Consideration 4
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
Paragraph 9.1(1) of the Direction provides that a non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm, and it refers to Australia’s non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the “Refugees Convention”), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “CAT”), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the “ICCPR”).
The Respond conducted an International Treaties Obligations Assessment (“ITOA”) which was completed on 26 April 2021. The Applicant was assessed against the criteria for entitlement to a protection visa in s 36 of the Act. The delegate accepted that the Applicant had a well-founded fear of persecution in Myanmar and was therefore a refugee. Based on that finding, the delegate concluded that the Applicant engaged Australia’s non-refoulement obligations. However, being a refugee alone does not engage Australia’s non-refoulement obligations. Australia’s international non-refoulement obligations with respect to refugees are found in articles 33(1) and 33(2) of the Refugees Convention.[96]
[96] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954); Protocol Relating to the Status of Refugees, opened for signature 31 July 1967, 606 UNTS 267 (entered into force 4 October 1967).
Article 33 provides that:
1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
Article 33(2) of the Refugees Convention is implemented in s 36(1C) of the Act. The delegate did not assess whether the Applicant, having been convicted of a particularly serious crime, is a danger to the Australian community. This is a curious omission given the Minister’s position that the Applicant presents a serious risk of harm to the community and the fact that the ITOA was conducted for the purpose of establishing whether the Applicant engages Australia’s non-refoulement obligations.
Nor did the delegate consider whether the Applicant engages non-refoulement obligations under the CAT[97] or the ICCPR[98], neither of which are subject to exclusions like the one in article 33(2) of the Refugees Convention. The delegate therefore did not make the findings that are crucial to reaching the conclusion that the Applicant engages Australia’s non-refoulement obligations.
[97] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987).
[98] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976); Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, GA Res 44/128 (15 December 1989, entered into force 11 July 1991).
However, based on the country information contained in the ITOA, it appears that the Applicant does engage articles 2, 6 and 7 of the ICCPR which are collectively taken to create an obligation not to remove a person to a place if there are substantial grounds for believing that there is a real risk of irreparable harm in the form of torture or cruel, inhuman or degrading treatment or punishment, or being arbitrarily deprived of their life. For that reason, I accepted the Respondent’s concession that the Applicant engages Australia’s non-refoulement obligations and I did not require further evidence or submissions about that.
The SHEV is a type of protection visa – see s 35A of the Act. By the operation of sections 501E and 48A of the Act the Applicant cannot make any further substantive visa applications while he is in the migration zone and he cannot apply for another protection visa unless the Minister makes an exemption in the public interest under s 48B of the Act. The making of such an exemption seems speculative and unlikely at this time.
Under s197C(3) of the Act, an unlawful non-citizen will not be removed to a country if they have made a valid application for a protection visa that has been finally determined, and in the course of considering that application a “protection finding” was made and none of the qualifications apply. Under 197C(4) a “protection finding” includes a finding that a person satisfies the criteria in s 36(2)(a) and 36(1C) of the Act. Such a finding must have been made in the course of considering the Applicant’s application for a SHEV in 2017 for the SHEV to have been granted. None of the qualifications in s197C(3) of the Act apply, so Australia will not remove the Applicant to Myanmar.
The legal consequence of that is that the Applicant will remain in detention unless:
·he requests removal to Myanmar;
·he is removed to third country; or
·the Minster exercises his personal powers under sections 195A or 197AB.
It is extremely unlikely that the Applicant would ask to be removed to Myanmar. The Respondent contended that it is appropriate for the Minister to defer consideration of re-settlement to a third country or the exercise of his powers until after the outcome of the review process.[99]
[99] Exhibit R1, Respondent’s Statement of Facts, issues and Contentions, paragraph 50.
Under s 195A of the Act the Minister may personally grant the Applicant a visa in the public interest, although the Minister is not under any obligation to consider exercising this power. Under s 197AB of the Act the Minister may, in the public interest, make a determination to the effect that a person must reside at a specified place in the community with certain conditions applying to the person. Whether or when the Minister would exercise either of those powers is a matter of speculation.
The Respondent submitted that the practical consequence of a non-revocation decision is not indefinite detention because of the other options available. However, those options are speculative at best and appear unlikely at this time. Realistically, a non-revocation decision means that the Applicant will remain in immigration detention for an indeterminate period, with a chance (that cannot be quantified) of being returned to the wider community or removed to a third country.
The Applicant gave evidence that his parents and siblings are suffering in a Bangladesh refugee camp and he cannot do anything to support them because he is in detention. He said his parents are dependent on him for financial support for their daily necessities otherwise they face a lot of challenges and difficulties in harsh conditions.[100] They rely on rations from the United Nations Human Rights Commission, but they need money for medical treatment. The Applicant said he used to send them money before he was incarcerated. Ms R corroborated that. The Applicant said was not able to help his sister when she was sick, and she ended up dying because there was no money for medical treatment. It hurts him that he is unable to send financial assistance to his family now.[101] His mother is now sick, and he is worried about her. His deceased sister had an infant son, and the Applicant is unable to help support that child. He cannot contribute money to buy formula and other things.[102]
[100] Exhibit A1, Letter from the Applicant dated 13 January 2022.
[101] Transcript, page 24, lines 25 to 36
[102] Transcript, page 25, lines 37 to 45.

I asked the Applicant if he feels safe in immigration detention and he said he does, and the only issue he has is his inability to support his family. He has been suffering from a middle ear condition which means he cannot sleep well or participate in activities.[103] He is under the care of a specialist ear nose and throat surgeon at the Royal Women’s Brisbane Hospital. He is taken from immigration detention to the hospital for investigation and treatment.[104] The Applicant does not think he has any mental health problems.[105] He has some contact with his family while in immigration detention.[106]
[103] Transcript, page 25, lines 31 to 34.
[104] Transcript, page 33, lines 29 to 40.
[105] Transcript, page 25, lines 20 to 22.
[106] Transcript, page 25, lines 24 to 27.
If the Applicant’s via is not returned to him, he will be detained indefinitely, suffering continued loss of liberty and uncertainty about his future, with the psychological and emotional impacts those things generally entail. In addition, he will suffer emotional hardship and worry because he is unable to provide the financial assistance that his family needs.
This Other Consideration weighs heavily in favour of revocation of the cancellation of the Applicant’s visa.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, 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.
There is no prospect of the Applicant being removed to Myanmar while he engages Australia’s non-refoulement obligations and is stateless. If he is removed there it would be because things in Myanmar change so drastically - in ways that the Tribunal cannot predict - that it becomes safe and feasible for him to return. The Applicant will not be removed to Myanmar in the foreseeable future, and I cannot make any sensible assessment of the matters I am required to assess on the basis of a speculative return to Myanmar at some unknown time in the future. This Other Consideration is neutral.
(c) Impact on victims
Paragraph 9.3(1) of the Direction relevantly states:
“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.”
The only victim of the Applicant’s offending is Ms R. Other Consideration (d) requires me to have regard to the impact of the decision on her as she is an immediate family member who is a permanent resident. I do not think I am required to effectively allocate additional weight by taking her interests into account under this Other Consideration.
There has been some recent judicial consideration of the predecessor to paragraph 9.3(1), in Ministerial Direction no. 79 (which was worded slightly differently). In Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Bale”),[107] Mr Bale’s wife was a victim of his domestic violence. There was evidence that Mr Bale’s wife would be negatively impacted by a non-revocation decision essentially because she was suffering a mental illness and needed his companionship. The Tribunal had considered the impact of a non-revocation decision on Ms Bale’s wife.[108] However, before the Federal Court, Mr Bale argued that the Tribunal had erroneously failed to consider the impact on his wife as a victim.[109]
[107] [2020] FCA 646.
[108] Under paragraph 14.2(1)(b) of Direction No. 79
[109] Under paragraph 14.4(1) of Direction No. 79
Perram J made the observation that where the crime in question is a crime against a member of the family unit, the mandatory considerations relating to victims and ties to the Australian community have the potential to overlap, and that Mr Bale sought to take advantage of that apparent overlap.[110] Paragraphs [26] and [27] of His Honour’s judgment provide guidance on how the apparent overlap is to be dealt with. His Honour said:
“I do not accept this argument because whichever way one looks at it, the fact that Mr Bale’s wife desired for him to remain in Australia was taken into account by the Tribunal. Where a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously…
The only way to outflank that problem would be to submit that there was some aspect of the wife’s evidence as a victim which was different from her evidence as a spouse. Such evidence might be readily enough imagined. For example, in her evidence Mr Bale’s wife could have addressed the fact that Mr Bale had been convicted of common assault following an attempt to throttle her early on the morning of 17 December 2007. She could have said that despite that assault she forgave him and was not concerned that he might assault her again. It may well be that evidence of that kind would have engaged cl 14.4(1) independently of cl 14.2.(1)(b)”.
(Underlining added)
[110] At [21].
In this case, Ms R forgave the Applicant and said she is not concerned that he will attack her again. However, the example His Honour gave in Bale was qualified by the words “may well be” and does not appear to have been intended as a definitive statement that where a family member gives evidence that they forgive an offender and/or trust that they will not re-offend against them, they are giving evidence that is different to evidence they give as a family member. It came across very clearly in Ms R’s evidence that she thinks she needs the Applicant and she thinks that his incarceration and detention is harder on her than it is on him. She intends that if he gets his visa back they will live together and she would not entertain any other option. Her forgiveness and expressed belief that he will not re-offend appeared to be inextricably linked to her desire to have him back living with her and helping her as her husband.
In XXBN vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[111] XXBN’s wife and sister-in-law, who were both victims of his domestic violence, gave evidence that they forgave him, did not fear further offending, and wanted him to remain in Australia. The Tribunal took their evidence into account in relation to XXBN’s ties to the community. In his application to the Federal Court, the Applicant contended that the Tribunal had failed to deal with the impact of his removal on both women as victims. He relied on the example given by Perram J in Bale of a family member victim forgiving the non-citizen and not having concerns about further offending. Murphy J put the submissions this way:
“The Applicant contends that this is precisely the situation in the present case; as both victims of the Applicant’s assaults, Ms A and Ms B, provided evidence that they have forgiven the Applicant for assaulting them and were not concerned that he might assault them in the future. The Applicant submitted that this was different evidence from Ms A’s evidence as a spouse, and Ms B’s evidence as a loving sister-in-law, that they wanted the visa cancellation decision to be revoked so that the Applicant can remain in Australia.
The Applicant submitted that the Tribunal failed to deal with the impact of the Applicant’s removal on Ms A and Ms B, as victims of the Applicant, who had wholeheartedly forgiven him and no longer held any fear of him.”[112]
[111] [2021] FCA 1047.
[112] At [103] – [104].
His Honour was not persuaded that the Tribunal failed to consider and take that evidence into account, observing that the Tribunal recognised that Ms A and Ms B were victims, and referring to Perram J’s statement in Bale that the Tribunal need not consider the impact of non-revocation repetitiously.[113] His Honour concluded that:
“On a fair reading of the Tribunal’s decision, I do not accept that the Tribunal only considered and dealt with Ms A’s claim as a wife, and Ms B’s claim as a sister-in-law, rather than also considering their claims as victims. That is a strained reading of the decision in which the Tribunal made it abundantly clear that it understood that Ms A and Ms B had reconciled with the Applicant since his assaults upon them.”[114]
[113] At [105] – [111].
[114] At [111].
In PGDX vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[115] PGDX’s ex-wife was the victim of the offending that led to the mandatory cancellation of his visa. The Tribunal took into account that PGDX’s ex-wife, who was a victim of his offending, wanted him to stay in Australia for the benefit of their son. Her interests specifically as a victim were not given any weight. Marginal weight was given with respect to her in terms of PGDX’s ties to the community.[116]
[115] [2021] FCA 1235.
[116] At [13].
In his application to the Federal Court, PGDX contended that the Tribunal had erroneously failed to have proper regard to his ex-wife’s evidence that she forgave him, that he had made a mistake, that she did not think he would reoffend and that him remaining in Australia would make her life easier. Allowing the application, Kerr J said:[117]
“...properly construed cl 14.4 of Direction No 79 operates in recognition that an offender’s victim is to be given appropriate agency in the decision making process. That means a victim’s interest in respect of the impact of such a decision must be taken into account by the decision-maker consistently with the usual position that a relevant consideration may weigh either in favour of, or against, whether or not to revoke the mandatory cancellation of a visa”.[118]
[117] At [9].
[118] Ibid.
His Honour concluded that the impact on PGDX’s ex-wife as a victim of his offending was not taken into account. His Honour added that the views of the victim are not controlling, but must be taken into account, whether they are adverse to or inconsistent with, the interests of the offender.[119] His Honour further said that:
“Ms K PGDX’s status as a victim entitled her to limited agency such that that information had to be taken into account by the Tribunal as a mandatory relevant consideration. It was not. She was denied that agency.”[120]
[119] At [10] – [11].
[120] At [89]
In relation to Bale, His Honour said:
“I need not decide if generic matters of the kind identified by Perram J in Bale might in a different case be sufficient to engage the operation of cl 14.4 of Direction No 79. That is because Ms K PGDX’s several modest, mundane but direct claims regarding the impact on her of a decision to revoke the cancellation of her former husband’s visa extend beyond the generic. As she had explained to the Tribunal when she was asked if she had anything she wanted to add she informed the tribunal that she wanted it to take into account that PGDX being given his visa back and being permitted to stay in Australia would make her life “a little bit easier”.[121]
[121] At [91].
In PGDX the Court found that the impact of a non-revocation decision on PGDX’s ex-wife in her own right was not taken into account at all. That fact sets it apart from Bale and XXBN where the impact on the victims, who were recognised by the Tribunal to be victims, was taken into account, just not repetitiously. I see no reason why, in the present case, Ms R’s interests should be taken into account repetitiously merely because she comes within the purview of two of the Other Considerations. Attributing appropriate agency to Ms R’s interests requires me to take into account evidence about the impact of a non-revocation decision on her, cognisant of the fact that she is the Applicant’s wife and the victim of his offending. I shall do that below.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Applicant came to Australia in 2013 at the age of 22 or 23. He lived in the wider Australian community for seven years before he was incarcerated. He commenced offending five and a half years after he arrived here.
In August 2017, the Applicant was granted a SHEV and he was permitted to undertake gainful employment. From November 2017, he worked as a cleaner,[122] which demonstrates a good work ethic.
[122] Exhibit G1, Section 501 G documents, G9, page 55.
He is an active member of the Queensland Rohingya Community Inc. The character reference form that organisation is quite vague about exactly how the Applicant participated and assisted that community. The Applicant claimed that he donated money, attended meetings, moved furniture and gave lifts to people who needed transport.[123] He said he gave lifts to people around 50 times per year, for example there were two elderly people in Gatton whom he always took to and from the hospital.[124] I accept this. It does not appear that the Applicant has any substantial social ties to the community outside the Rohingya community.
[123] Transcript, page 12, lines 7 to 29.
[124] Transcript, page 33, lines 1 to 5.
The Applicant does not have any family in Australia apart from Ms R.[125] He said he gets along with her son and daughter, but he also said they have very little to do with Ms R as they are busy with their own families and work. Neither provided letters of support. I am not satisfied that the Applicant has much of a relationship with either.
[125] Transcript, page 30, lines 44 and 45.
The Applicant and Ms R both sought to give the impression that Ms R is utterly dependent on the Applicant, however I found their evidence exaggerated.
In his revocation request, the Applicant said Ms R is heavily dependent upon him for financial support but more importantly emotional support. He said she has no one to turn to and is effectively an outcast in their community.[126] In the hearing, it emerged that Ms R receives income support and a Health Care Card/Pension Card from Centrelink, and that she is not an outcast in the Rohingya community. The Applicant said there was no criticism of Ms R when she left her husband and started living with him because they were married before coming to Australia.[127] He said Ms R is part of the Rohingya community, that she is still involved with them, and she has her own friends in the community.[128] When the Applicant was asked what the reference to Ms R being an outcast meant, he said the community in Brisbane is a bit distant from where she lives in Gatton.[129] However, he later conceded that there were members of the community who live around Gatton. He said they could not help Ms R because they are elderly and do not have a license or a car or they are working.[130] I find it unusual that, if the Applicant gave as much help to members of the Queensland Rohingya Community Inc. as he claimed, that organisation would not encourage its members who are able to assist his wife to do so.
[126] Exhibit G, Section 501 G documents, G9, page 56.
[127] Transcript, page 11, lines 13 to 23.
[128] Transcript, page 12, lines 30 to 41.
[129] Transcript, page 21, lines 10 to 24.
[130] Transcript, page 22, lines 5 to 18.
In his statutory declaration, the Applicant said Ms R is heavily dependent on him, looks to him for comfort and care, and that if he is deported it would cause serious emotional and psychological harm as she has no one to support or assist her and “no other family in Australia other than [the Applicant]”. Obviously, that is not correct: Ms R has two children plus their partners and children living relatively close.
The Applicant said Ms R’s children do not help her.[131] Her daughter does not have a driver’s licence and she has a lot of children. Her husband works all day.[132] Ms R was at pains to persuade the Tribunal that her daughter and son-in-law could not be of any help to her. In the course of doing that, she admitted that her son-in-law works until midnight and sleeps during the day.[133] This would obviously make him available to help her to a small extent during the day. When asked how she knew about his schedule, she admitted that the police had taken her to stay with her daughter for a few days. She did not say when, but it appears that it was after the report about domestic violence on 19 December 2018 as the Applicant called Ms R’s daughter to speak to her on 28 December 2018. Ms R said her daughter and son-in-law then bought their own property and she could not stay with them. She added that in Rohingya culture a mother-in-law cannot stay, so she cannot live in her daughter’s home.[134] When asked if she could live with her son, she said she could not because he has a wife.[135]
[131] Transcript, page 14, lines 21 to 25.
[132] Transcript, page 15, lines 32 to 37.
[133] Transcript, page 82.
[134] Transcript, page 83, lines 1 to 30.
[135] Transcript, page 83, lines 40 to 46.
Ms R lives by herself and does not have a car so she is only able to walk places.[136] The Applicant said he used to take her to monthly appointments at the hospital but since he has been incarcerated she has missed her appointments.[137] He said others do not take her to the appointments because they are all busy working.[138] He did not know what Ms R’s medical condition is although he thought it was something to do with her back.[139] Ms R was able to visit the Applicant in the detention centre twice. Once she came with her son and the other time she came with a friend of the Applicant.[140] He said that friend could not take Ms R to medical appointments because he is working when they are on.[141] Ms R said she sometimes has problems with her back which mean that she cannot move her back, she sometimes gets pain in her shoulder and she cannot even clean herself properly when she goes to the toilet.[142]
[136] Transcript, page 14, lines 5 to 9.
[137] Transcript, page 13, lines 1 to 25.
[138] Transcript, page 13, lines 26 to 33.
[139] Transcript, page 13, lines 45 to 48.
[140] Transcript, page 16, lines 14 to 20.
[141] Transcript, page 30, lines 30 to 34.
[142] Transcript, page 85, lines 40 to 44.
The Applicant was asked how Ms R looks after herself in the sense of buying groceries and attending to household chores. He said her son in Brisbane buys things for her on weekends and she can walk to the store.[143] Ms R said her son no longer takes her to the shops because he is too busy and that she does her grocery shopping by walking to the shops.[144]
[143] Transcript, page 31, lines 1 to 40.
[144] Transcript, page 92, lines 16 to 28.
My overall impression from Ms R’s evidence is that she does not have a lot of friends in the Australian community, but she mentioned one who lives in Brisbane and frequently calls to check on her.[145]
[145] Transcript, page 78; page 86, lines 20 to 24.
I am not satisfied that Ms R is as helpless and dependant on the Applicant as she and the Applicant represented. However, her lack of English must put her at a disadvantage in terms of engaging with community supports and making friends in the community. She has the Queensland Rohingya Community Inc. as a source of social connection and support. I accept that her life would be easier if the Applicant lived with her and provided transport and an income. However, this would carry the risk of further domestic violence.
Impact on Australian business interests

The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction.
Conclusion: Other Consideration (d)
The Applicant’s links to the Australian community weighs to a limited extent in favour of revocation.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction.
The Direction requires me to weigh the Primary and Other Considerations, and it provides that the Primary Considerations are generally given greater weight than the Other Considerations.[146]
[146] Paragraph 7(2).
The Direction stipulates that being able to remain in Australia is a privilege Australia confers on non-citizens in the expectation that they, among other things, will not cause or threaten harm to individuals or the Australian community.[147] Further, non-citizens who engage or have engaged in criminal or other serious conduct should expect to forfeit the privilege of staying in Australia.[148] The Australian community expects that the Australian Government will not grant a visa to a non-citizen who raises serious character concerns, and the Applicant does raise such concerns. The Direction provides that family violence is treated very seriously. There is a real risk that the Applicant will commit further family violence offences. Even having regard to the severity of indefinite detention, Primary Considerations 1, 2 and 4 combined, outweigh Other Considerations (a) and (d). Accordingly, there is not another reason to revoke the cancellation of the Applicant’s visa.
[147] Paragraph 5.2(1).
[148] Paragraph 5.2(2).
DECISION
The decision under review is affirmed.

I certify that the preceding 179 (one hundred and seventy nine) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

..............................[SGD]..........................................
Associate
Dated: 7 February 2022

Date of hearing: 20 and 21 January 2022

Applicant:

By videoconference

Solicitor for the Respondent
Mr Jake Kyranis

Sparke Helmore

ANNEXURE A – EXHIBIT LIST

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (G1 to G33 paged 1 to 141)

R

-

2 December 2021

A1

Letter of the Applicant (1 page)

A

13 January 2022

13 January 2022

A2

Letter from Queensland Rohingya Community Inc (1 page)

A

20 December 2021

20 December 2021

A3

Applicant’s International Health and Medical Services (IHMS) Records (60 pages)

A

-

8 January 2022

R1

Respondent’s Statement of Facts, Issues and Contentions (17 pages)

R

7 January 2022

7 January 2022

R2

Respondent’s Tender Bundle (TB1 to TB4, paged 1 to 200)

R

-

7 January 2022

R3

Screenshot of ICSE

R

-

21 January 2022

[2022] AATA 166

7 February 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G33 paged 1 to 141)	R	-	2 December 2021
A1	Letter of the Applicant (1 page)	A	13 January 2022	13 January 2022
A2	Letter from Queensland Rohingya Community Inc (1 page)	A	20 December 2021	20 December 2021
A3	Applicant’s International Health and Medical Services (IHMS) Records (60 pages)	A	-	8 January 2022
R1	Respondent’s Statement of Facts, Issues and Contentions (17 pages)	R	7 January 2022	7 January 2022
R2	Respondent’s Tender Bundle (TB1 to TB4, paged 1 to 200)	R	-	7 January 2022
R3	Screenshot of ICSE	R	-	21 January 2022