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

[2022] AATA 792

Lum and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 792 (15 March 2022)

Division:GENERAL DIVISION

File Number(s):      2021/10244

Re:Wai Lhun Lum

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Dr Linda Kirk

Date:15 March 2022

Date of written reasons:        20 April 2022

Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the decision under review is affirmed.

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

Senior Member Dr Linda Kirk

CATCHWORDS

MIGRATION – visa cancellation under subsection 501(3A) of the Migration Act 1958 (Cth) – cancellation not revoked under subsection 501CA(4) – where the applicant has a substantial criminal record – where the applicant does not pass the character test – issue: is there another reason why the visa cancellation should be revoked – Direction No. 90 considered – primary and other considerations considered – Applicant’s criminal history and background considered – decision under review affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Crimes (Administration of Sentences) Regulation 2014 (NSW)

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Family Law Act 1975 (Cth)

Migration Act 1958 (Cth)

CASES

CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69

Deng v Minister Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456

FYBR v Minister for Home Affairs [2019] FCAFC 185

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337

Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461

Jal v Minister for Immigration and Border Protection (Migration) [2016] AATA 789

Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548

Minister for Home Affairs v Buadromo [2018] FCAFC 151

Nyemah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2107

PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162

Saleh and Minister for Immigration and Border Protection (Migration) [2017] AATA 367

Soames and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1955

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

XFKR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2385

ZFZM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1633

SECONDARY MATERIALS

Department of Foreign Affairs and Trade Country Information Report Malaysia

Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

WRITTEN REASONS FOR DECISION

Senior Member Dr Linda Kirk

20 April 2022

BACKGROUND

1. Wai Lhun Lum (‘the Applicant’) was born in Malaysia in 1995.[1]  He first arrived in Australia in August 2011 as the holder of a tourist visa. He returned to Australia in November 2012 as the holder of a Class AH Subclass 101 Child (permanent) visa (‘the Applicant’s visa’).[2]

   [1] Exhibit 6, G1, 2.

   [2] Exhibit 6, G14, 148 – 149.

2. On 25 March 2020 the Applicant was convicted in the Local Court of New South Wales of Sexually touch another person without consent, Goods suspected stolen in/on premises (not m/v) (three counts), Break and enter house etc steal value <= $60,000 and Drive motor vehicle during disqualification period, for which he was sentenced to an aggregate term of two years’ imprisonment.[3]

   [3] Exhibit 6, G6, 82 – 106.

3. On 8 September 2020, the Applicant’s visa was cancelled under subsection 501(3A) of the Migration Act 1958(Cth) (‘the Act’) (‘Mandatory Visa Cancellation Decision’) because a delegate of the Minister (‘the Respondent’) was satisfied he did not pass the character test because he had a substantial criminal record within the meaning of paragraph 501(6)(a) and paragraph 501(7)(c) of the Act.[4]  At this time, he was serving a sentence of imprisonment, on a full-time basis in the Dawn De Loas Correctional Centre in New South Wales.

   [4] Exhibit 6, G2, 11-31.

4. On 16 September 2020, the Applicant was released from state custody on a parole order[5] and taken into immigration detention. The parole term expired on 16 July 2021.[6]

   [5] Exhibit 4, RTB, 249.

   [6] Exhibit 4, RTB, 245.

5. On 18 September 2020, the Applicant made a request to the Respondent to revoke the Mandatory Visa Cancellation Decision.[7]

   [7] Exhibit 6, G12,129-132.

6. On 21 December 2021, a delegate of the Respondent made a decision under subsection 501CA(4) of the Act not to revoke the original decision (‘the Reviewable Decision’).[8]

   [8] Exhibit 6, G2, 31, G18, 181.

7. On 28 December 2021, the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the Reviewable Decision.[9]

   [9] Exhibit 6, G1, 1-6.

8. The review application was heard by the Tribunal on 1 and 2 March 2021. The Applicant attended the hearing by videoconference from Christmas Island Immigration Detention Centre, gave oral evidence and was cross-examined at the hearing.

9. The following persons gave oral evidence by phone:

   ·Verna Ogilvy

10. The material before the Tribunal consists of:

    ·Respondent’s Statement of Facts, Issues and Contentions (Exhibit 1)

    ·Statement of Support from Verna Ogilvy (Exhibit 2)

    ·Applicant’s Bundle of Material (Exhibit 3)

    ·Respondent’s Tender Bundle (TB1- TB13) (pp 185-276) (Exhibit 4)

    ·DFAT Country Information Report – Malaysia (Exhibit 5)

    ·Respondent’s G Documents (G1-G19) (pp 1-184) (Exhibit 6)

    ·Applicant’s Various Course Certificates (Exhibits 7 – 9)

11. The Tribunal has reviewed all the evidence before it and refers to all relevant materials below.

    LEGISLATIVE FRAMEWORK

12. Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:

    (3A)     The Minister must cancel a visa that has been granted to a person if:

    (a)the Minister is satisfied that the person does not pass the character test because of the operation of:

    (i)     paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

    (ii)    …; and

    (b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
    
    

13. Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Subsection 501(7) of the Act relevantly provides:

    (7)For the purposes of the character test, a person has a substantial criminal record   if:

    (a)…

    (b)…

    (c)the person has been sentenced to a term of imprisonment of 12 months or more; or

    (d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or

    …

14. Section 501CA of the Act applies if the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

15. Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under subsection 501(3A). Subsection 501CA(4) provides:

    (4) The Minister may revoke the original decision if:

    (a)the person makes representations in accordance with the invitation; and

    (b)the Minister is satisfied:

    (i)     that the person passes the character test (as defined by section 501); or

    (ii)    that there is another reason why the original decision should be revoked.

16. Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.

    MINISTERIAL DIRECTION NO. 90

17. The Minister is empowered by subsection 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. The Direction must be applied by all decision-makers, except for the Minister acting personally, such as the Minister’s delegates and the Tribunal.[10]

    [10] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).

18. On 8 March 2021, the Minister signed Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). The Direction commenced on 15 April 2021 and revoked the previous Direction 79 on the same date.[11]

    [11] Direction, at [2]-[3].

19. The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable 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 measureable risk of causing physical harm to the Australian community.

20. 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 paragraphs 8 and 9, where relevant to the decision.

21. Paragraph 8 of the Direction identifies the following as primary considerations:

    a)Protection of the Australian community from criminal or other serious conduct;

    b)Whether the conduct engaged in constituted family violence;

    c)The best interests of minor children in Australia; and

    d)Expectations of the Australian community.

22. Paragraph 9 of the Direction identifies a non-exhaustive list of other considerations:

    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.

23. Paragraph 7(1) provides that, when taking the relevant considerations into account, ‘… information and evidence from independent and authoritative sources should be given appropriate weight.’

24. Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’ That does not preclude the Tribunal, however, based on the specific circumstances of each case, to give an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[12]

    [12] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).

25. Paragraph 7(3) states that ‘[o]ne or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another:[13]:

    … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501.

    [13] (2016) 241 FCR 461 at [57]

    ISSUES FOR DETERMINATION

26. Before the power in subsection 501CA(4) of the Act to revoke the original decision is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.

27. There is no dispute that the Applicant made the representations required by paragraph 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo,[14] the Full Court of the Federal Court of Australia made the following observations in relation to subsection 501CA(4):

    ... there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view...[15]

    [14] [2018] FCAFC 151.

    [15] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).

28. The issues for determination are:

    1)whether the Applicant passes the ‘character test’; and

    2)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.

29. If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision should be revoked.

    EVIDENCE BEFORE THE TRIBUNAL

    Background

30. The Applicant travelled to Australia in August 2011 to visit his mother who resides in Australia. He relocated to Australia in November 2012 and lived with his mother in Cairns.[16] His mother subsequently moved to the Gold Coast and continues to reside there with the Applicant’s brother.[17]

    [16] Transcript of proceedings, 1 March 2022, 7 – 8.

    [17] Transcript of proceedings, 1 March 2022, 8.

31. The Applicant attended high school in Australia for one year. He then moved to Sydney where he worked as a tiler.  In 2015 he started his own tiling business.[18]

    [18] Transcript of proceedings, 1 March 2022, 9.

    Criminal History in Australia

32. The Applicant’s Nationally Coordinated Criminal History Check dated 2 September 2020 records his criminal offending in Australia.[19]  These offences are as follows.

    [19] Exhibit 6, G3, 37-43.

    Family violence offences

    November and December 2016

33. On 21 November 2016, the Applicant was charged by New South Wales Police (NSWPOL) with the following offences, alleged to have been committed on 20 November 2016:

    ·Stalking or intimidation with intent to cause fear of physical or mental harm (domestic), contrary to subsection 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW); and

    ·Assault occasioning actual bodily harm (DV), contrary to subsection 59(1) of the Crimes Act 1900 (NSW).

34. The facts of these offences are set out in the sentencing remarks of Magistrate Breton dated 1 May 2017.[20] The Applicant was working in Canberra and received a text from BMZ stating that she wanted to leave him. On 20 November 2016, BMZ texted the Applicant stating that she wanted to visit him in Canberra, and he told her not to. BMZ then went to the city with a male friend to buy a new phone when she received a call from the Applicant asking her to see a friend at the Campsie RSL ‘apparently on a rouse to pick up some property.’ When BMZ arrived at this location, she was confronted by the Applicant who told her to get in his car.  He then grabbed her phone, asked her for the passcode and began to look through the phone.

    [20] Exhibit 6, G9, 113-114 Transcript of the sentencing hearing (including the sentencing remarks of Magistrate Breton) in the Local Court of New South Wales in R v Wai Lhun Lum (2016/00347574).

35. His Honour described what then occurred between the Applicant and BMZ:

    There is some argument then about [the Applicant] having discovered apparently [Ms Z’s] infidelity. She has an argument with him about that which he doesn’t believe in terms of her explanation, at least. He then apparently attempts to call her ex-husband. I understand, I think, a person by the name of [A]. After [the Applicant] hung up he became angry at [Ms Z] he punched and slapped the victim an unknown number of times to the face, head, ear, throat region. Her left shoulder, left hand and arm region. The victim’s face began to swell as a result of the punches. The victim placed her hands up to her face in an attempt to protect herself and whilst she was trying to protect herself the victim was told by [the Applicant], “I’m going to kill this baby.”

    He then told her she has got two options, have the baby and give it to him then go back to China as I understand it or divorce the accused and he will get rid of the baby. She got out of the car ran to Park Street and where she flagged down a car and went to Campsie Police Station immediately. They noticed the injuries including the chipped front upper tooth. Those injuries I described earlier plus the tooth, soft tissue damage on her left hand with swelling and bruising and soft tissue damage on her left side of her jaw, the actual bodily harm and I have seen photographs … which demonstrate the injuries. He was arrested and declined it seems to say anything at that stage.[21]

    [21] Ibid.

36. His Honour stated that following his arrest the Applicant was granted bail.

37. The Applicant was questioned about this offence during cross-examination.  He said that BMZ was having an affair and he could not accept that she was doing so when she was pregnant with his child.[22] He was ‘very, very angry’ and could not control his emotions. Afterwards he regretted his actions and apologised to BMZ and tried to comfort her.[23] He told the Tribunal that he did not say he would kill the baby. What he said was that he did ‘not want that baby anymore.’[24]He went to the police station the next day and turned himself in and was arrested.[25] He agreed he did not admit to the offence until after he was questioned by police.[26]

    [22] Transcript of proceedings, 1 March 2022, 14

    [23] Transcript of proceedings, 1 March 2022, 14.

    [24] Transcript of proceedings, 1 March 2022, 12.

    [25] Transcript of proceedings, 1 March 2022, 14.

    [26] Transcript of proceedings, 1 March 2022, 15.

1. On 21 November 2016, a police officer made an application under paragraph 25(1)(a) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) for an interim Apprehended Domestic Violence Order (‘ADVO’) for the protection of the complainant, BMZ. The provisional order prevented the Applicant from going within a hundred metres of her place or attempting to approach or contact BMZ. It also contained a direction for the Applicant to appear in the Burwood Local Court on 24 November 2016.

2. The Applicant disregarded the AVO and continued to attempt to contact Ms Z by phone, text and social media begging her to forgive him as it was ‘an impulsive moment’ and stating that he loved her.[27] He told the Tribunal that when the AVO was imposed he was ‘confused’ and ‘not really sure’ of its conditions.[28]

   [27] Exhibit 6, G9, 114.

   [28] Transcript of proceedings, 1 March 2022, 16.

3. The Burwood Local Court made interim orders on 24 November 2016, 22 December 2016 and 19 January 2017.  A final apprehended domestic violence order for 12 months’ duration was made on 1 May 2017.

4. On 1 December 2016, the Applicant went to BMZ’s home and took about $600 in cash and letters which had been sent to her by the police. The Applicant told BMZ to get into the car which she did, and he took her to a gaming place at the Campsie RSL and then drove her back home. During this time, the Applicant was arguing about money and other boyfriends, telling BMZ that whilst he was at work she was busy talking to other men and that she did not deserve to be his wife.[29]

   [29] Exhibit 6, G9 , 114.

5. The Applicant told the Tribunal that he took the money from BMZ because he had no money.  At this time, he was ‘in a bad mood’ and he thought that he should ‘just have a little bit of fun’ by going gambling with BMZ because they both enjoyed this activity.[30]

   [30] Transcript of proceedings, 1 March 2022, 17.

6. In his sentencing remarks dated 1 May 2017, His Honour described the next sequence of events:

   About 3am on Friday 2 December 2016 they are together, it seems and there is an argument again. That continue through it seems because it says that the victim did not attempt to leave the accused during that night, nor did she attempt to call police because she was too frightened that the accused would wake her up and hurt her like last time. Ultimately [the Applicant] was arrested on 4 December although it appears according to the facts she was trying again still to protect him at that stage.[31]

   [31] At 28.

7. On 4 December 2016, the Applicant was charged by NSWPOL with one offence of contravening a prohibition or restriction specified in the provisional apprehended violence order, contrary to subsection 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).[32]  Following his arrest, the Applicant was granted bail and released on 5 December 2016.[33]

   [32] Exhibit 4, RTB, 226.

   [33] Exhibit 4, RTB, 225, 244 and 250.

8. The Applicant appeared in court on 22 December 2016 and was released on bail.[34]

   January 2017

   [34] Exhibit 4, RTB, 196 – 199, 250.

9. On 16 January 2017, the Applicant was charged by NSWPOL with the following further offences, alleged to have been committed on 15 January 2017:

   ·Contravening a prohibition or restriction specified in an interim AVO;

   ·Criminal damage (DV), contrary to subsection 195(1) of the Crimes Act 1900; and

   ·Common Assault (DV), contrary to section 61 of the Crimes Act 1900

10. The Applicant was remanded in custody on 17 January 2017 as a consequence of these further criminal charges.[35]

    [35] Exhibit 4, RTB, 250.

11. The offences were committed when BMZ went to the marital home to collect some belongings and found the Applicant asleep in one of the bedrooms. He awoke and another argument ensued lasting several hours during which the Applicant demanded BMZ’s mobile phone password. During this time BMZ was crying loudly. In his sentencing remarks dated 1 May 2017, Magistrate Breton detailed what then occurred:

    [The Applicant] took [BMZ’s] phone from her again, she continued to deny the accused access to her phone. As a result [the Applicant] grabbed the victim by the arms to stop her leaving. Put her arms behind her back and pushed her onto the couch. Apparently she felt pain as a result because he grabbed her quite firmly. She finally gave in to his requests and told her the password. Again, all because he suspected her of having an affair with someone else. As she attempted to leave, in a moment when he was doing something else, the accused tore of a sleeve for a dress in the attempt to prevent her from leaving. She ran out onto the street and stopped another vehicle and flagged it down for help.[36]

    [36] Exhibit 6, G9, 115.

12. His Honour rejected the defence’s argument that BMZ was the one who had wanted the Applicant back, and she was contacting him to apologise, stating that ‘there is nothing else in the facts besides his word for that and his word at this particular point in time carries very little weight.’[37] In reply to the defence’s argument that the Applicant felt humiliated by the discovery of his wife’s affair, His Honour stated that ‘one might think [Ms Z] was somewhat humiliated on a number of occasions by having to put up with his behaviour and flag down passers-by.’ [38] In sentencing the Applicant, His Honour stated that a term of imprisonment was necessary for this offending as it was serious and, whilst it was ‘not at the top end of the scale’, in his view it was ‘certainly not far off’.[39]

    [37] Exhibit 6, G9, 114.

    [38] At 35.

    [39] At 35.

13. On the same day, the Court issued an Apprehended Violence Order (AVO) against the Applicant, listing Ms Z and anyone with whom she had a domestic relationship, as protected persons.

14. During cross-examination, the Applicant told the Tribunal that he knew he was not allowed to contact BMZ but he was ‘very angry’ and so he yelled at her ‘Why do you do this to me?’ He was worried she would report him to the police. He used violence towards BMZ because he was ‘angry’, ‘in a panic’, and could not control his emotions. Afterward he really regretted his actions.[40]

    [40] Transcript of proceedings, 1 March 2022, 20.

15. On 1 May 2017, the Applicant appeared in the Burwood Local Court in respect of the six criminal charges. He entered pleas of guilty to each charge, and was convicted and sentenced by Magistrate Breton as follows:

Charge	Offence	Offence Date	Sentence
H62669212	Sequence 1 –    Stalk/intimidate intend fear physical etc harm (Domestic) – T2	20 November 2016	3 mths’ imp., CC
H62669212	Sequence 2 – Assault occasioning actual bodily harm (DV) – T2	20 November 2016	12 mths’ imp., CC (NPP 6 months)
H64394155	Sequence 1 –Contravene prohibition/restriction in AVO (Domestic)	3 December 2016	Good Behaviour Bond (S9), 2 yrs’ duration with programme and supervision requirements
H63693975	Sequence 1 - Contravene prohibition/restriction in AVO (Domestic)	15 January 2017	4 mths’ imp, CC
H63693975	Sequence 2 – Destroy or damage property (DV)	15 January 2017	Conviction with no further penalty s 10A
H63693975	Sequence 3 – Common assault (DV) – T2	15 January 2017	4 mths’ imp., CC

1. The Applicant appealed against the sentences imposed by the Local Court to the District Court of New South Wales.

2. On 13 June 2017, His Honour Judge Conlon SC dismissed the appeal against sentence, save that His Honour varied the sentence imposed in respect of the Assault occasioning bodily harm offence by reducing the minimum non-parole period to five months.  His Honour described this as ‘extend[ing] some further leniency to [the Applicant] with a view to him being released and ultimately resuming cohabitation with his wife and child.’[41]

   [41] Exhibit 6, G8, 108-109.

3. The Applicant was released on a parole order on 14 June 2017.[42]

   [42] Exhibit 4, RTB, 250.

   Driving offences, possession of stolen property and larceny

4. On 23 November 2017, the Applicant drove a vehicle when he was not authorised to do so.[43]  He was charged by NSWPOL and found guilty of this offence on 27 March 2018, in his absence.[44] A warrant was issued for the Applicant’s arrest.[45] He was ultimately sentenced to a $1,500 fine in the Sutherland Local Court on 2 May 2018 and disqualified from driving for 12 months.[46]

   [43] Exhibit 4, RTB, 228.

   [44] At 42.

   [45] Exhibit 4, RTB, 228 - 229.

   [46] At 42.

5. On 3 April 2018, the Applicant was charged by NSWPOL for being in possession of stolen property (on 1 April 2018) and larceny of less than or equal to $2,000 (between 24 November 2017 and 6 March 2018).[47]  The Applicant was convicted of these offences in his absence in the Burwood Local Court on 12 October 2018 and 4 December 2018. Warrants were issued for his arrest and he was charged with an offence of failing to appear in court in accordance with his bail undertaking.[48]

   [47] Exhibit 4, RTB, 229.

   [48] Exhibit 4, RTB, 229 – 230.

6. On 26 May 2018, the Applicant was charged by NSWPOL with four offences arising from a traffic stop on 25 May 2018. [49] He was remanded in custody on 3 July 2018 following a breach of bail on 2 July 2018 (by further offending).[50]

   [49] Exhibit 4, RTB, 230 – 231.

   [50] Exhibit 4, RTB, 230 – 231, 233 and 250

7. On 29 July 2018, the Applicant was charged by NSWPOL with driving under the influence of illicit drugs (on 25 July 2018).[51]

   [51] Exhibit 4, RTB, 233-234.

8. On 10 August 2018, the Applicant was convicted at a contested hearing in the Central Local Court in respect of these offences. He was released following the hearing, however he returned to custody on separate warrants on 10 December 2018.[52]  On 12 December 2018, the Local Court refused to annul the Applicant’s larceny and stolen property convictions.[53]

   [52] Exhibit 4, RTB, 250.

   [53] Exhibit 4, RTB, 229-230.

9. On 1 February 2019 the Applicant appeared in the Burwood Local Court and was sentenced as follows:[54]

   [54] Exhibit 4, RTB, 230-231.

Charge	Offence	Offence Date	Sentence
H67636164	Sequence 1 – Goods in personal custody suspected being stolen (not M/V)	1 April 2018	1 mth and 23 days’ imprisonment, CC
H67636164	Sequence 2 – Larceny value <=$2,000-T2	24 Nov 2017 – 6 Mar 2018	1 mth and 23 days’ imprisonment, CC TES: 1 mth
H67636164	Sequence 3 – Failure to appear in accordance with bail	4 Dec 2018	Conviction with no further penalty (s 10A)
H68448854	(Call up) Sequence 5 – Drive motor vehicle during disqualification period – 2nd + offence	25 May 2018	Community Corrections Order, 12 mths’ duration with supervision and programme requirements
H68384656	(Call up) Sequence 3 – Drive motor vehicle during disqualification period – 2nd + offence	2 July 2018	No action on breach
H68556252	(Call up) Sequence 2 – Drive vehicle, illicit drug present in blood Etc. – 2nd + offence	25 May 2018	Community Corrections Order, 12 mths’ duration with supervision and programme requirement

Burglary and possession of stolen property

1. On 29 May 2019, the Applicant was charged by NSWPOL with an offence of burglary, alleged to have been committed on 28 April 2019.[55] He was later charged with being in possession of property which was suspected of being stolen (three counts) in June 2019,[56] and an indecent assault,[57] alleged to have been committed on 8 July 2019.[58] The Applicant was remanded in custody from 18 July 2019.[59]

   [55] Exhibit 4, RTB, 236.

   [56] Exhibit 4, RTB, 237-238.

   [57] Sexually touch another person without consent – T2.

   [58] Exhibit 4, RTB, 239-240.

   [59] Exhibit 6, G10, 124.

2. On 25 March 2020, the Applicant appeared in the Central Local Court before Magistrate Stewart in respect of those charges and was convicted and sentenced upon his pleas of guilty.[60] The Applicant was sentenced to an aggregate sentence of two years’ imprisonment, to commence from 17 July 2019.[61]

   [60] Exhibit 6, G6, 82-104.

   [61] Exhibit 6, G7, 105-106.

3. Magistrate Stewart revoked the community corrections orders which had previously been imposed on the Applicant in respect of his earlier conviction for driving under the influence of methylamphetamine, on the basis that this was a fine only offence.[62] His Honour imposed no further penalty.[63]

   [62] Exhibit 6, G6, 95.

   [63] Ibid.

4. Magistrate Stewart referred to the balance of the charges as follows:

   The offender …  is for sentence in relation to a number of matters. The first in time is a break, enter, and steal which occurred on 24 April 2019.

   …

   The next matter in time is the goods in custody matter, 28 June 2019 of which there were three counts, all under the same section of the Crimes Act.

   …

   All of the offences occurred at the same time, date and place. The sentence that I impose on those matters will be wholly concurrent because to do so would be otherwise utterly unfair, because it is not to be delineated into separate offences by virtue of the fact that there are different types of property found or different owners. He had certain goods on premises at that time, which fall within relevant legislation, and there should be, overall, one penalty.

   …

   Turning to the facts, between 3 pm and 7.30pm on 28 April, a Sunday, the offender gained entry into a unit of an apartment complex in Mary Street at Burwood by unknown means and method. He entered the living room and bedroom of the victim, [X], where he took various items, including an iPad Pro 2 2018 tablet worth some $1,500, a Dell Alienware 15R3 laptop computer worth $1,800, a Dell Inpsiron 13-5368 laptop computer worth $1,000, Seagate Backup 4TB portable hard drive worth about $150, and two Commonwealth Mastercards, a Bank of China Visa credit card, a Chinese driver license, and a medium-sized blue duffle bag.

   He also took other items which belonged to a friend of the other victim, that being [Y], which included an Apple MacBook Pro worth about $1,000, and a Vivo Nex smart phone worth about $1,000. Whilst inside the apartment, he consumed the contents of a foil-sealed bottle of calcium milk. He also wrote a note saying “Sorry, I needed money. I’ll try and repay you one day,” in Chinese, on a piece of tissue paper, and left it in the bedroom.

   At 7 o’clock, the person [X] retuned home, with the person [Y], and found the property missing and contacted police. Crime scene attended; they took a DNA swab of the mouthpiece of the milk bottle, which was later forensically analysed and shown to be a match to the offender.

   ….

   The next matter in time was the goods in custody matters of 28 June 19. The facts in that matter indicate that at 4.30pm on 29 June, police went to 30 Elizabeth Street at Ashfield. They had a report of an unknown male sleeping in the laundry. They went to that laundry; there were white sheets covering the window. They opened the door and saw a green tent in the room and within the tent was the offender.

   There was clothing, bags and electronic equipment inside. He seemed to be under the influence of an illicit drug at the time and said that he uses many drugs often. Police located a Malaysian passport. They observed two items later identified as being stolen items from the break and enter that I had previously referred to. He had a Lonsdale backpack with him, and within that there was a multi-coloured Gucci-brand wallet, several different keys, and three fob passes.

   The Lonsdale bag and wallet, he said it was his. He said a friend gave him the fob keys, but did not elaborate any further. Police also located three bank cards and a Caltex petrol card….

   He did not answer questions in relation to that, but noted that all the cards were in different names to that of the offender. A Lenovo black-coloured laptop, a Pendo tablet computer, and an Apple iPad were located.

5. The Applicant was questioned about these offences at the hearing.  He told the Tribunal:

   I was too confused at that time and I took too much drugs at that time. I had no self control. I had no idea what I was doing. That's why I did a lot of silly things.[64]

   [64] Transcript of proceedings, 1 March 2022, 52.

   Sexually touch another person without consent

6. Magistrate Stewart described the circumstances surrounding this offence as follows:

   The complainant had met the offender before on a previous night when he had asked to borrow her telephone so that he could contact his girlfriend. On that occasion, he used the complainant’s phone outside her bedroom for about an hour or so. Then asked whether he could use the phone inside because there was nowhere to sit outside; she agreed to that. He sat on the bed, spoke on the phone in Chinese till about 5am.

   She asked him to leave a number of times because she was tired but he would not leave and stayed on the phone. He left the room when [WP] came home and he went to [WP’s] room. At about 12am, or midnight, on 8 July 2019 the complainant, [TC], returned home to the apartment in the company of two of her friends.

   She was heavily intoxicated after consuming a bottle of red wine. Her friends assisted her to return to the apartment, laid her down on the bed in her room, she was fully clothed, and the offender was present when the complainant was taken to her room. The offender was in her bedroom. The complainant’s friends then left the apartment. The offender sat next to her on the bed, where she was sleeping under the blankets.

   He placed a white Apple tablet on the bedside table and pressed the recording button. The recording, which runs for three hours, shows the complainant being asleep when the offender commenced the recording and, therefore, unaware what was happening. She was fully clothed under the blankets. The offender was also fully clothed and remained on top of the blankets the entire time.

   The footage shows him holding her left hand, positioning his body besides hers, and, at that time, having a leg and an arm on either side of her body, stroking her arm, leant forward to the head of the complainant, kissed and nuzzled her several times on the phone and in her neck. He moved his body so that he was lying beside her, one of his arms rested across the lower part of her body on top of the blankets. He fell asleep next to her.

   She woke up and tried to wake him up. She texted and called friends, took photos of the offender, sent messages to the group chat with her friends …

7. In relation to this offence, Magistrate Stewart found, on the balance of probabilities, that the Applicant took the video for the purpose of ensuring that there was some record of what he did, and not for the purpose of sexual gratification.[65] His Honour observed that the Applicant has a lengthy criminal history in Australia. He noted that when the Applicant committed the offences, he was on conditional liberty by virtue of him being on bail and under a community correction order.[66] These were aggravating factors.[67]

   [65] Exhibit 6, G6, 99, lines 22-33.

   [66] Exhibit 6, G6, 100, lines 14 to 16.

   [67] Paragraph 21A(2)(j) Crimes (Sentencing Procedure) Act 1999 (NSW).

8. The Applicant appealed against the aggregate sentence of imprisonment imposed by Magistrate Stewart. On 1 June 2020, Judge Culver of the New South Wales District Court dismissed the appeal.[68] Her Honour considered that the aggregate sentence of imprisonment was ‘the absolute minimum that the Court could conceive as appropriate’.[69]

   [68] Exhibit 6, G4 and G5, 44-48.

   [69] Exhibit 6, G5, 46.

9. The Applicant was questioned about this offending at the hearing. He told the Tribunal that at the time he was drunk and also under the influence of drugs. He said that he had previously had sexual relations with the victim.[70]  He said that he did ‘silly things’ when he was taking drugs and they will not happen again because he is not going to consume drugs in the future.[71]

   [70] Transcript of proceedings, 1 March 2022, 53 -54.

   [71] Transcript of proceedings, 1 March 2022, 54.

   Apprehended Domestic Violence Order

10. On 18 July 2019 the Applicant was served with a provisional ADVO for the protection of WP and her children, TL and AP.[72] The basis for the order was as follows:

    On an unknown date in the month of June, 2019 the victim, [WP] was within an apartment at the Windsor Plaza building located at … Sussex Street, Sydney with [the Applicant]. [The Applicant] and [WP] have been in an Intimate relationship for about 2 years. Whilst within the apartment, [WP] was enquiring with [the Applicant] about a receipt. [WP] required the receipt so that she could forward it on to the landlord of the apartment.

    [The Applicant] and [WP] began to have a verbal argument with one another in relation to this receipt. [The Applicant] struck [WP] one or two times using a closed fist which made contact with [WP’s] nose. This caused [WP] to feel immediate pain in the centre of her face and bleeding to her nose.

    [WP] observed bruising and swelling across her nose and the centre of her face in relation to the assault. [WP] also had injured her shoulder as a result of this incident which she had ongoing pain in this area for about a week.

    At no time did [WP] give consent for [the Applicant] to assault her causing actual bodily harm injuries.

    [The Applicant] during whilst within the apartment beside the Windsor Plaza building … took possession of [WP’s] Oppo mobile phone valued at $100.00. [The Applicant] has snapped the mobile phone causing it to be destroyed and no longer able to be used.

    At no time did [the Applicant] have consent to destroy the Oppo mobile phone valued at $100.00, the property of [WP].

    [WP] called for help and other persons within the apartment rushed to her aid.

    The matter was however not reported to police as [WP] did not wished to be asked to leave the premises she was residing in as her child, AP was also residing and present at the time of the assault. AP is not a dependent child of [the Applicant]. [WP] and [the Applicant] were asked to leave the apartment building and not return.[73]

    [72] Exhibit 4, RTB, 206 – 208.

    [73] Exhibit 4, RTB, 213 – 214.

1. The Applicant was questioned about this offending during cross-examination.  He stated:

   I had a fight with her at that time, that's because she often lock up the child in the room while she went out gambling and also her job, she selling drugs, that's her job, and I did not want her to do that job, and because she will need to rely on her phone to do that business of selling drugs, so then I smashed the phone.

   …

   At that time I didn't beat her because she was grabbing me and I tried to protest, tried to get her to lose me and I accidentally pushed her and that caused the injury.[74]

   [74] Transcript of proceedings, 1 March 2022, 48.

2. The Applicant and WP moved to a new rental apartment, and on 17 July 2019 a further incident occurred which was recorded as follows:

   About 2.00 am on 17th July 2019, [the Applicant] was inside [the unit at]… Sussex Street, Sydney, with the victim, [WP] with her two children, [AP] and [TL]. [The Applicant] has awoken and left the premises to go an purchase food.

   A short time later [the Applicant] returned to the front door of [the unit]. The front entrance doorway [to the unit] was closed and secured at this time. [The Applicant] began [to] knock the door and try and notify [WP] he was at the door. [The Applicant] sent several messages which [WP] had read, however failed to reply. Subsequently [the Applicant] using his left shoulder has forced entry to the door by shoulder charging the door twice. This caused damage to the lock area and the area of the door surrounding the lock. The force used by [the Applicant] was enough to cause the door to swing inwards.

   [The Applicant] entered [the unit] and then entered [WP’s] bedroom, where she was awake and on her mobile phone. [The Applicant] entered [WP’s] room and took possession of a Huawei tablet computer valued at $200.00, the property of [WP]. [The Applicant] has thrown the Huawei tablet computer valued at $200.00 onto the ground  causing it damage before disposing of it into a bin.

   …

   [The Applicant] remained in the premises for the remainder of the day until police were contacted at about 4:30pm on the same day. Police were allowed access into [the room] where [the Applicant] was located asleep in the bedroom of [WP]. [The Applicant] was placed under arrest and cautioned immediately before being conveyed to The Rocks.

3. The Applicant was asked to comment on this offending during cross-examination. He stated:

   I was angry because I called her, I contact her two times. She didn't answer so then I just forced the door open and about that tablet of hers that I threw away, I broke in because I was waiting outside for a few hours, you know. I was very angry. Besides, that winter, it's very cold. I bought food back and I was waiting and waiting for a few hours and so I was very angry so I just broke in.[75]

   …

   [The Huawei tablet] was mine anyway because her phone is broke so I let her use mine and I already call her many times so she didn't answer. I was so angry so I just got rid of it. Because I enter the room, I found that she was playing games. I brought food back and I tried to contact her, she ignored me and she paid no attention to my feelings. I was angry so I got rid of it.

   …

   … I'd been waiting outside for so long and she'd been ignoring me for so long and of course I was angry, right? And also she is doing the drug business and I was thinking how come you are spending the time on the phone doing that sort of business instead of just come and open a door for me. At that time, she's taking drugs. It was messy at that time. No, I mean both she and I took drugs at that time so we were not in a good state. Both of our condition is - especially hers, sometimes her condition was good, sometimes her mental condition was no good.[76]

   [75] Transcript of proceedings, 1 March 2022, 49.

   [76] Transcript of proceedings, 1 March 2022, 50.

   Conduct and courses in gaol

4. On 12 January 2020 and 9 June 2020, the Applicant was involved in incidents listed as ‘prepare, manufacture alcohol.’[77]  He was respectively charged with the correctional centre offences of preparing or manufacturing alcohol, contrary to regulation 148(2) of the Crimes (Administration of Sentences) Regulation 2014 (NSW).[78] He was found guilty and reprimanded for the first incident and deprived of 14 days’ ‘buy-up’ privileges for the second.[79]

   [77] Exhibit 4, RTB, 251 – 253.

   [78] Exhibit 4, RTB, 251-254.

   [79] Ibid.

5. During cross-examination by the Crown at the court hearing on 25 March 2020, the Applicant was questioned in regard to these incidents, and he stated:

   I was aware of this matter, and then I note that that was about alcohol being manufactured. But actually, it was my cellmate who was making that sort of stuff. But, as far as I know, that we both need to take responsibility for what happened.

6. The Applicant provided evidence of the courses he completed in gaol:

   ·Provide First Aid – 18 October 2019

   ·Remand Domestic Abuse Sessions

   oCaring: Healthy Lifestyle – 31 October 2019

   oCoping: Managing Emotions Distress Tolerance – 31 October 2019

   oConnection: Family, Friends & Community – 15 January 2020

   oCommunication – 15 January 2020

   oChange: Identifying Abuse – 30 October 2019

   oChoice: Action Planning - 30 October 2019

   ·Positive Lifestyle Program – 11 December 2019

7. He told the Tribunal what he learned during the Positive Lifestyle Course he took from August to December 2019:

   [I]t taught me how to control my anger, especially when I was in a stress situation, then what I need to do to handle that. It also teach me how to be self-controlled.[80]

   [80] Transcript of proceedings, 1 March 2022, 42.

8. In relation to the domestic violence program that he took from October 2019 to January 2020 the Applicant stated:

   [I]t taught me how to control my own emotion and also how to communicate with friends and family and people around, you know, so it taught me family violence is no good. Violence is no good.[81]

   [81] Transcript of proceedings, 1 March 2022, 43.

9. The Applicant confirmed that he has not undertaken any further courses since early 2020.[82] He told the Tribunal that he moved gaols a few times, and he was told that he could not attend courses unless his sentence is long enough for him to do so.[83] He said that he was not made aware of available courses in immigration detention other than those for English and exercise.[84]

   [82] Transcript of proceedings, 1 March 2022, 44.

   [83] Transcript of proceedings, 1 March 2022, 55.

   [84] Transcript of proceedings, 1 March 2022, 56.

   Psychological assessment

10. A pre-sentence report prepared by Dee Murisa a psychologist with NSW Corrective Services dated 13 March 2020, refers to the Applicant’s self-reports of binge drinking, illicit drug use and misuse of prescribed medication.  He denied any current physical health issues and there were no indications of any formal diagnosis of a mental disorder and/or cognitive impairment. The Applicant had however self-referred in the past for assistance in managing issues related to stress and generalised anxiety.[85]

    [85] Exhibit 4, RTB, 269.

11. Under the sub-heading ‘Factors Relevant to Management’ the report stated:

    Based on the available information risk management should focus on [the Applicant’s] impulsivity/self-control, problem-solving and possible sexual preoccupation and regulation as well as possible intimacy/social skills deficits. It is recommended that he completes further psychological assessment post-sentence with a CSNSW psychologist to assist with determining treatment pathways and case management strategies. Given that [the Applicant] identifies his drug use as a risk factor for his general offending, he may also benefit from participating in interventions aimed at addressing his drug use.Responsibility and remorse for offending

12. In his judgement dated 13 June 2017, in relation to the Applicant’s family violence offending against BMZ, His Honour Judge Conlon SC recorded the following:

    [The Applicant] said to the Community Corrections officer that he believed his angry response on this occasion was out of character, that he does not usually use violence to resolve those issues. He indicated he is remorseful for his actions and accepted responsibility for his behaviour.

    The Community Corrections officer indicated that while he presented as remorseful, he did indicate a level of stress and marriage issues which resulted in him lashing out at his wife. He described his anger at the time as escalating and he did not know how to control himself …

13. Magistrate Stewart stated the following in relation to the factors which contributed to the Applicant’s offence of Sexually touch another person without consent:

    The offender says he was shown prior intimacy by the complainant in the sexual contact matter. There might be some cultural issue there as to what he means by "intimacy," but there is nothing on the facts that would amount to the common usage of the word "intimacy" to show that the complainant in that matter did anything, at all, which could possibly be construed as leading this offender to the belief that he would be able to touch her inappropriately in the way that he did.

    …

    In relation to drug affectation, I do not find as a fact that the offender was affected at the time of the break and enter matter, noting that he had the clarity of mind to write a note in Chinese, indicating that he needed the money.

    I do accept that he was drug-affected when he was located by police in the laundry, and for the sexual touching matter, it seems that him going to sleep for such a long period of time, it was recorded, is consistent with his claim of drug use. All his substance use in the past is consistent with methylamphetamine, Xanax, or alprazolam, and alcohol.

    Risk of reoffending

14. In sentencing the Applicant for the offence of Sexually touch another person without consent, Magistrate Stewart referred to a report prepared for the Court by the New South Wales Department of Corrective Services.[86]  He noted that the author of the report had not had any ‘direct contact’ with the Applicant and had relied only on historical and file information. His Honour made the following comments in relation to the report:

    … The estimate of his risk of sexual offending is classified as above average risk, relative to other sexual offenders. The risk management should focus on impulsivity, self-control, problem solving possible sexual preoccupation, and intimacy skills or deficits. … [87]

    [86] Exhibit 4, RTB, 268 – 270.

    [87] Exhibit 6, G6, 101.

15. In his oral evidence at the Tribunal hearing the Applicant stated the reasons why he claims he will not reoffend:

    But now I already come to a conclusion that it's not worth it to have argument with women. Look how long I've been locked up here.

    …

    That is, I won't do this anymore now. I just want to be a good father. I just focus on being a good father and try to have the child to come back to me. And for the sake of the child, I will not do that anymore. Just not worth it.[88]

    [88] Transcript of proceedings, 1 March 2022, 52.

    Applicant’s children

16. The Applicant has two biological children in Australia from two former relationships and a step-daughter who are minors:

    ·SL, born June 2017 – Australian citizen

    ·TL, born July 2019 – Australian citizen

    ·AP, born July 2017 – Thai citizen

17. In his Personal Circumstances Form submitted with his request for revocation, the Applicant stated that he loves his children very much and that he has always played a parental role in their lives providing them with emotional, financial and practical support. He wrote that being detained in immigration detention is causing his children to suffer as he cannot ‘provide them with financial and practical assistance at present’.[89]  If he were removed from Australia, their suffering would be greater as it would prevent him from resuming his loving relationship with them.[90]

    [89] Exhibit 6, G13, 139.

    [90] Exhibit 6, G13, 139.

    SL

18. SL was born from the Applicant’s marital relationship with BMZ. In his Personal Circumstances Form dated 1 October 2020, the Applicant stated that prior to his incarceration and his subsequent period of immigration detention, he played an active parental role in SL’s life however the Covid-19 restrictions had impacted on his ability to see SL. The Applicant further stated that he has not had contact with SL since his mother ‘has taken him and I do not have current access or contact with him (as I have been unable to locate my wife)’.[91] The Applicant expressed concern that his removal from Australia will further impact on his ability to continue his relationship with SL, his wife ‘has currently ‘disappeared’ with [SL]’.[92]

    [91] Exhibit 6, G13, 139.

    [92] Ibid.

19. During cross-examination the Applicant was questioned about his relationship with SL. He told the Tribunal that SL was born when he was in gaol. When he was released from gaol in June 2017 his mother came to pick him up and brought SL with her so the Applicant could meet him.[93] He would have contact with his son via video-conference about once or twice a week. He would often send money to BMZ and would take SL and BMZ out for meals two or three times a week in 2018 and 2019 when he was not in gaol and following the expiration of the ADVO in April 2018.[94] He also would buy clothes and other items for SL.[95]

    [93] Transcript of proceedings, 1 March 2022, 23.

    [94] Transcript of proceedings, 1 March 2022, 31 – 33.

    [95] Transcript of proceedings, 1 March 2022, 33.

20. The Applicant stated that he has not had contact with SL since November 2021 after his mobile handset was broken.[96] The Applicant was asked why he wrote in his request for revocation that he did not have access or contact with his son because he had not been able to locate BMZ.  He said that he got in touch with BMZ in October 2020 and they were in contact until his phone broke in November 2021.[97]  The Applicant confirmed that he now has a new phone but he ‘lost all the previous information and [BMZ] also changed her phone.’[98] He thinks that BMZ and SL may have returned to China.  He signed a paper in relation to a passport for SL. He has tried to find them but could not do so.[99]

    [96] Transcript of proceedings, 1 March 2022, 23.

    [97] Transcript of proceedings, 1 March 2022, 29.

    [98] Transcript of proceedings, 1 March 2022, 30.

    [99] Transcript of proceedings, 1 March 2022, 31 – 32.

21. The Applicant was asked what steps he has taken since November 2021 to re-establish contact with BMZ and SL to which he replied, ‘nothing much’.[100]  He was asked how he would be a positive role model for SL.  He stated:

    I already learned my lesson, I already calmed down and I've fought through a lot of things. I don't think I will return to a relationship with her, however, I will take on the responsibility as a father.[101]

    [100] Transcript of proceedings, 1 March 2022, 29.

    [101] Transcript of proceedings, 1 March 2022, 30.

22. In his sentencing remarks dated 25 March 2020, Magistrate Stewart noted that the ‘sentencing and assessment report suggests … that the offender is married but has not had contact with his wife since March 2019 due to his offending behaviour’.

    TL and AP

23. TL was born from the Applicant’s relationship with WP, who also has a daughter, AP.

24. In his Personal Circumstances Form, the Applicant stated that TL and AP are in foster care.  Due to Covid-19, he has been unable to have face-face contact with the children during his incarceration and period in immigration detention. However, they maintain their close relationship by video calls, however ‘[g]iven [TL] is still very young, the nature of contact is obviously limited’.[102]  AP’s biological father lives in Thailand, and the Applicant has always been her father figure and she calls him ‘pappa’. The Applicant wrote that he has maintained contact with WP, who rings him twice a week to enable him to speak to AP via video call when she visits her daughter in foster care. When he was in the community, he played a parental role and provided emotional, practical, and financial support for both children. If he is removed from Australia, AP would suffer from his absence as it would be difficult to ‘play this role from overseas.’[103] 

    [102] Exhibit 6, G13, 139.

    [103] Exhibit 6, G13, 141,

25. The Applicant told the Tribunal that he was in the community when TL was born, but he went to gaol a few days after his birth. He has stayed in contact with TL and AP via video-conference calls, initially once a week and then every fortnight. He explained his plans to re-gain custody of TL if his visa is reinstated:

    I already talk about it with foster care agency and I said I would do course, whatever program I would need, so that I would be a good role model. I would try to have the right to come back to look after [TL]. Because his mother already lost her custody. Because last time in the child court I was told that due to my pending visa status they could not progress the case, so they just waiting for me to have my visa back.[104]

    [104] Transcript of proceedings, 1 March 2022, 34.

26. He told the Tribunal that he also would consider seeking custody of AP as he does not want to separate the children. He is being represented by Legal Aid in the custody proceedings.[105]

    [105] Transcript of proceedings, 1 March 2022, 34 – 37.

    Family in Australia

27. The Applicant’s mother and younger brother reside in Queensland.[106] He told the Tribunal that he has an ongoing relationship with them and they are frequently in contact.[107]

    [106] Transcript of proceedings, 1 March 2022, 8, 23.

    [107] Transcript of proceedings, 1 March 2022, 24.

28. He was asked why they did not provide a statement of support or agree to give oral evidence at the hearing.  He said his mother’s English is limited and she did not know how to write the letter.  His brother also does not know how to express himself in writing.[108] He told them about the hearing, but they did not offer to give evidence and he ‘did not want to trouble them’ so he did not ‘press the point’.[109]

    [108] Ibid.

    [109] Transcript of proceedings, 1 March 2022, 25.

    Verna Ogilvy

29. Ms Ogilvy provided a statement of support dated 24 January 2022 and gave oral evidence at the hearing. In her statement she wrote that she is a registered nurse working in aged care. She met the Applicant in December 2018 after being introduced by a mutual friend.  Following their introduction, she would meet or be in contact with the Applicant a couple of times a month and he would visit her at her mother’s house where she was then residing.[110]

    [110] Transcript of proceedings, 2 March 2022, 65.

30. Ms Ogilvy wrote that she believes the Applicant ‘made some bad choices due to the fact he was very young and had many burdens placed upon him, added to this with a drug addiction he was attempting to overcome.’  She has offered her support for him to stay in Australia for his sake and that of his two young boys, both of whom need a father figure in their lives. She believes the Applicant has ‘learnt his lesson and paid for his mistakes and if given a second chance will prove himself to be a valuable member of Australian society and a fantastic father.’ She is willing to offer him accommodation and emotional support on the condition that he attends Narcotics Anonymous’ twelve step program and maintains regular contact with a sponsor. She believes that with her nursing background she is ‘in the best position to support [the Applicant] in his endeavours to obtain sobriety.’ She will assist him to obtain gainful employment and help him to get back on his feet financially.

31. Ms Ogilvy told the Tribunal that she knows about the Applicant’s offences against BMZ but she is not aware of his full criminal record. The last time she saw him was before he went into prison a few years ago. They speak on the phone regularly and they stay in touch. She has helped him financially when she can do so.[111] She confirmed that she is willing to offer the Applicant accommodation and food until he gets ‘back on his feet.’[112]

    [111] Transcript of proceedings, 2 March 2022, 63.

    [112] Transcript of proceedings, 2 March 2022, 66.

    EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION

    1)    Does the Applicant pass the ‘character test’?

1. In the representations and documents that the Applicant submitted to the Department and the Tribunal, he does not dispute the information in the Nationally Coordinated Criminal History Check dated 2 September 2020 regarding his criminal convictions and sentences. It records that on 25 March 2020 the Applicant was convicted in the Local Court of New South Wales of Sexually touch another person without consent, Goods suspected stolen in/on premises (not m/v) (three counts), Break and enter house etc steal value <=$60,000 and Drive motor vehicle during disqualification period, for which he was sentenced to an aggregate term of two years’ imprisonment.[113]

   [113] Exhibit 6, G3, 39 – 41.

2. The Tribunal is satisfied that the Applicant has a ‘substantial criminal record’ for the purposes of paragraph 501(3A)(a) and subsection 501(6) of the Act as he has been sentenced to a term of imprisonment of 12 months or more: paragraph 501(7)(c). The Tribunal is also satisfied, for the purposes of paragraph 501(3A)(b) of the Act, that on 8 September 2020, the Applicant was serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of New South Wales.

3. Having found that the Applicant does not satisfy the character test, the Tribunal finds that subparagraph 501CA(4)(b)(i) cannot be invoked to revoke the Mandatory Visa Cancellation Decision.

   2)    Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?

4. In determining whether pursuant to subparagraph 501CA(4)(b)(ii) of the Act there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must in accordance with paragraphs 8 and 9 of the Direction take into account the relevant ‘primary considerations’ and ‘other considerations’.

   PRIMARY CONSIDERATIONS

   Primary Consideration 1 – Protection of the Australian community

5. Reiterating the general guidance and principles in the Direction, paragraph 5.2 states that:

   (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 engage 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.

6. Paragraph 8.1(2) states that in considering the need for protection of the Australian community, decision-makers should also have regard 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.

   (a)       Nature and seriousness of the Applicant’s conduct to date

7. Paragraph 8.1.1(1) sets out factors to be considered in determining the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. Relevant to the Applicant’s conduct, the Tribunal must have regard to the following factors:

   a)    without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

   (i)violent and/or sexual crimes;

   (ii)crimes of a violent nature against women or children, regardless of the sentence imposed;

   (iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

   b)    without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

   (i)…

   (ii)…

   (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)    whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).

8. The Applicant’s criminal offending spans a period of seven years and comprises approximately 15 separate offences.  In addition, the Applicant has a history of breaching obligations that have been imposed upon him by authorities, including AVOs, bail undertakings, community-based orders and prison regulations.

9. Having regard to the factors in paragraph 8.1.1(1) of the Direction, the Tribunal finds, for the following reasons, that the Applicant’s criminal offending and other conduct to date is very serious.  It involves conduct described in 8.1.1(1)(a) against multiple female victims over a number of years. The Applicant committed family violence offences against his wife, BMZ and engaged in acts of domestic abuse against his former partner, WP. He also committed the offence of sexual touching without consent offence against a female victim when she was sleeping. This latter offence represents an escalation of the Applicant’s offending beyond domestic abuse to a non-consensual sexual act against a vulnerable woman. As required by paragraphs 8.1.1(1)(a)(i), 8.1.1(1)(a)(ii) and 8.1.1(1)(a)(iii) of the Direction, the Tribunal finds that the Applicant’s criminal offending is very serious.

10. The Applicant’s other offending includes driving offences, possession of stolen property, burglary and larceny. Whereas the Applicant’s other offences are individually less serious than his family violence and sex offending, they are nevertheless serious. They demonstrate his disregard of traffic and road laws, and his lack of respect for the personal property of members of the community. In particular the Applicant’s offences of driving under the influence of illicit drugs placed other road users at risk of serious harm.

11. In determining the seriousness of the Applicant’s conduct, paragraph 8.1.1(1)(c) of the Direction also requires the Tribunal to consider the sentence imposed by a court in relation to offences committed by him (other than those relating to his violent and sexual crimes against women and acts of family violence, which must be viewed very seriously regardless of the sentence imposed).  The custodial sentences imposed on the Applicant by the courts noted in paragraphs 65 and 66 above, are an objective indicator of the seriousness of his criminal offending. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved: Jal v Minister for Immigration and Border Protection (Migration);[114] PNLB and Minister for Immigration and Border Protection (Migration)[115]and Saleh and Minister for Immigration and Border Protection (Migration).[116]

    [114] [2016] AATA 789 at [24]

    [115] [2018] AATA 162 at [22]

    [116] [2017] AATA 367 at [50].

12. In relation to the factors in paragraphs 8.1.1(1)(d) and 8.1.1(1)(e), the Applicant’s violent offending, has been frequent and re-occurring from November 2016 until he was remanded in custody in July 2019. The Applicant assaulted his wife, BMZ on at least two occasions, including when she was pregnant with their son, TL.  In addition, he committed the offence of sexually touching a person without consent and he was made subject to an ADVO in relation to another female partner, WP. This conduct is very serious, and the cumulative effect of the Applicant’s violent offending raises significant concerns for the safety of the community if the cancellation of his visa were to be revoked. 

13. On the basis of the evidence before it, and for the stated reasons, the Tribunal finds that the Applicant’s criminal offending is very serious in nature, and this weighs strongly against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.

    (b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

14. Paragraph 8.1.2(1) of the Direction states

    In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harms 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.

15. Paragraph 8.1.2(2) of the Direction provides that in assessing the risk that may be posed to the Australian community, decision-makers must have regard to, cumulatively:

    a)    the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    b)    the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    i)information and evidence on the risk of the non-citizen re-offending; and

    ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

    …

    (a)       The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct

16. Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to reoffend in accordance with paragraph 8.1.2(2)(a) of the Direction, the Tribunal finds that the harm to individuals, including those who are in a close relationship with the Applicant, should he engage in similar conduct could include extremely serious physical or psychological injury. The Applicant has demonstrated a propensity to act violently with disregard for the harm he causes to his victims. The Applicant’s criminal offending and other serious conduct has included actual and threatened physical violence against his former partners and a non-consensual sexual act committed against a vulnerable woman.  If his previous criminal behaviour were to be repeated, this would pose a significant risk to members of the community, particularly women.

17. The Applicant’s criminal history reveals a persistent disregard for the law and persistent criminal offending. He has repeatedly engaged in acts of family violence against his female partners. The Tribunal has previously recognised the physical and psychological harm that is caused by violent behaviour in a domestic context. In XFKR and Minister for Immigration and Border Protection (Migration) (‘XFKR’),[117] the Tribunal observed at [45]:

    The Tribunal would add that, in a society that adheres to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systemically intolerable. Its harms are threefold. First, it results in direct physical and psychological harm for those women against whom the violence is directed. Second, it psychologically harms the children of these women — children who, as in this instance, witness their mothers being abused, degraded and dehumanised — and sends a message to these children (male and female) that behaviour of this sort is to be tolerated. Third, it normalises those socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated.

    [117] [2017] AATA 2385

18. Were the Applicant to again to engage in driving and traffic offences, this would place the safety of other road users at risk of serious harm including serious personal injury or death and economic loss.  If the Applicant were to continue to commit property offences of the kind he has committed to date, it would cause distress and loss to his victims.  In addition to the potential physical and psychological harm to the Applicant’s victims, there is the significant financial cost to the community associated with emergency services and law enforcement activities of any future offending by the Applicant.  For these reasons, the Tribunal finds that the nature of the harm to individuals and the community should the Applicant continue to offend is very serious.

19. The Applicant was assessed by a psychologist at the John Morony Correctional Centre in March 2020 who found that he was within the ‘Above Average Risk range relative to other sexual offenders.’[118] The psychologist noted that in terms of risk management, the Applicant would need to work on his ‘impulsivity/self-control, problem solving and possible sexual preoccupation and regulation as well as possible intimacy/social skills deficits’, and that he ‘may also benefit from participating in interventions aimed at addressing his drug use.’[119]  The psychologist also was of the view that the Applicant would benefit from a comprehensive psychological assessment.[120]

    [118] Exhibit 4, RTB, 269.

    [119] Ibid

    [120] Ibid.

20. A NSW Community Corrections Officer at the Windsor Community Corrections Office prepared a Sentencing Assessment Report in relation to the Applicant dated 24 March 2020. The Officer assessed the Applicant as being at a ‘Medium-High risk of reoffending’ according to the Level of Service Inventory - Revised (LSI-R).[121] The report considered the Applicant’s personal circumstances and factors related to offending. It noted that the Applicant has a history of anti-social behaviour, mixed awareness about his criminal actions, appeared frequently to minimise his culpability, had a history of poly substance abuse, suffered from financial strain, and had responded to prior supervision.[122]

    [121] Exhibit 4, RTB, 274 emphasis in original.

    [122] Exhibit 4, RTB, 271-275.

    (b)      The likelihood of the non-citizen engaging in further criminal or other serious conduct

21. Having regard to the likelihood of the Applicant engaging in further criminal or other serious conduct in accordance with paragraph 8.1.2(2)(b) of the Direction, the Tribunal notes that the Applicant’s evidence is that he has concluded that it is ‘not worth it’ to have an argument with women and he will not engage in similar behaviour in the future. He claims that he has undertaken programs which have taught him how to control his anger and other emotions and he has learned that family violence is ‘no good’.  He wishes to be a ‘good father’ and to take steps to regain custody of TL and AP. The Respondent submits that there is little evidence of the Applicant taking steps towards rehabilitation, and that he appears to have limited insight into his offending, minimising his conduct and blaming his victims.

22. The Applicant was assessed by a psychologist at the John Morony Correctional Centre in March 2020 who found that he was within the ‘Above Average Risk range relative to other sexual offenders.’[123] The psychologist noted that in terms of risk management, the Applicant would need to work on his ‘impulsivity/self-control, problem solving and possible sexual preoccupation and regulation as well as possible intimacy/social skills deficits’, and that he ‘may also benefit from participating in interventions aimed at addressing his drug use.’[124]  The psychologist also was of the view that the Applicant would benefit from a comprehensive psychological assessment.[125]

    [123] Exhibit 4, RTB, 269 emphasis in original

    [124] Ibid

    [125] Ibid.

23. A NSW Community Corrections Officer at the Windsor Community Corrections Office prepared a Sentencing Assessment Report in relation to the Applicant in March 2020. The officer assessed the Applicant as being at a ‘Medium-High risk of reoffending’ according to the Level of Service Inventory - Revised (LSI-R).[126] The report considered the Applicant’s personal circumstances and factors related to offending. It noted that the Applicant has a history of anti-social behaviour, mixed awareness about his criminal actions, appeared frequently to minimise his culpability, had a history of poly substance abuse, suffered from financial strain, and had responded to prior supervision.[127]

    [126] Exhibit 4, RTB, 274 emphasis in original.

    [127] Exhibit 4, RTB, 271-275.

24. These reports appear to be the only formal assessments available in relation to the Applicant’s risk of reoffending and were relied upon by the court when he was sentenced in March 2020. The Tribunal has given these reports appropriate weight in considering the likelihood of the Applicant engaging in further criminal or other serious conduct.

25. The Applicant has a history of repeat offending over a sustained period, and despite the various opportunities afforded to him, including non-custodial sentences, he continued to commit further offences. After being sentenced to terms of imprisonment for six offences on 1 May 2017 and having his sentence in respect of the Assault occasioning bodily harm varied on appeal to provide further leniency to allow him to resume cohabitation with BMZ and SL, the Applicant proceeded to re-offend following his release. He committed further serious offences, resulting in his second custodial sentence of an aggregate of two years imprisonment for five offences including the sexual touching offence.  This indicates that even the serving of a custodial offence did not effectively deter the Applicant from engaging in criminal conduct.

26. The Applicant breached a number of orders, including the AVO for the protection of BMZ, and he was on conditional liberty by virtue of being on bail and under a community correction order when he committed the sexual touching offence. The fact that the Applicant breached these obligations in circumstances where he had been on notice that failure to comply with such orders would result in further consequences, demonstrates his lack of respect for the law and the legal system, and casts considerable doubt on his ability to comply with the law in the future.

27. While the Applicant claims he will not re-offend, he has expressed only limited remorse for his criminal offending to date, particularly his very serious crimes against his female victims. He has pointed to BMZ’s unfaithfulness and WP’s drug-taking, drug-dealing and her mental health condition as reasons why he lost control of his emotions leading to him assaulting them.  In relation to the victim of the sexual touching offence, the Applicant relies on what he claims is a previous sexual encounter between them as the basis for him committing against her a non-consensual sexual act.

28. The Sentencing Assessment Report dated 24 March 2020 records that the Applicant ‘appeared to possess mixed awareness about his criminal actions’ and stated that the victim of the sexual touching offence had ‘shown prior intimacy and that he felt partially entitled to sexual activity’.[128] He did however make statements acknowledging that his sexual actions were wrong due to his inability to gain the victim’s consent. He recognised that his offending actions ‘caused his victim to feel intense distress and fear.’[129]

    [128] Exhibit 4, RTB, 272.

    [129] Exhibit 4, RTB, 273.

29. The Applicant told the Corrections Officer that he did not know his license was suspended and that some of the property listed in his theft charges was not stolen.  The Officer noted that the Applicant ‘appeared to frequently minimise his culpability in all of his offences and placed blame on others or his drug and alcohol use.’[130] In relation to his break and enter offence, the police facts record that the Applicant left a note to apologise to his victims during the commission of the offence, indicating his awareness that his actions had negative impacts. He also recognised that his driving offences were dangerous due to a lack of control which may have endangered himself and others.

    [130] Exhibit 4, RTB, 272.

1. In relation to the factors in paragraph 8.3(4)(b) of the Direction, the evidence is that there is limited potential for the Applicant to play a positive role in TL’s life.  Although he wishes to take steps to regain custody of TL, it is unclear whether this would be granted by the Children’s Court.  Accordingly, there is doubt as to whether the Applicant will be able to play a positive role in TL’s life in the future. 

2. Having regard to the factors in paragraph 8.3(4)(c) and 8.3(4)(g) of the Direction, the evidence is that TL was present when the Applicant committed family violence offences against his mother, WP. Any future criminal offending by the Applicant, particularly domestic violence offending towards his mother, would have a negative psychological if not physical impact on TL.  On the basis of this evidence, the Tribunal finds that any violent acts the Applicant may perpetrate against women in his presence in the future would not be in TL’s best interest to witness.

3. Having regard to the factors in paragraph 8.3(4)(d) of the Direction, if the Applicant were removed from Australia this would almost certainly end any possibility of physical contact between him and TL for the foreseeable future. However, given the Applicant’s limited communication with TL due to him being in foster care, the fact that he has not been present for most of TL’s life, and that he would be able to maintain communication with him via electronic means, the impact of the Applicant’s removal from Australia on TL would be relatively limited.

4. In relation to the factors in paragraph 8.3(4)(d), 8.3(4)(e) and 8.3(4)(f), the evidence is that TL has been in the primary care of his mother and a foster carer since he was born. There is no evidence before the Tribunal about TL’s views about the impact on his of her father being removed from Australia, nor evidence of him having been abused or neglected by the Applicant. 

5. On the basis of the evidence before it, the Tribunal finds that, on balance, it is in TL’s best interests for the Mandatory Visa Cancellation Decision to be revoked.

   AP

6. The evidence before the Tribunal is that AP is currently in foster care.  Having regard to the factors in paragraph 8.3(4)(a), the evidence before the Tribunal is that the Applicant has not resided with AP since his incarceration in July 2019 at which time AP was aged two years. The Applicant has therefore been physically absent for a considerable amount of AP’s life. This long period of absence has inevitably limited the Applicant from being able to establish a close and meaningful relationship with AP. The contact AP currently has with the Applicant is by phone and is facilitated by WP. There is no evidence to suggest that the Applicant has been involved in AP’s day-to-day life since he has been incarcerated.  Whereas the Applicant’s evidence is that AP considers him to be her father, his contribution to her upbringing to date has not been significant.  Accordingly, the Tribunal finds that the nature and duration of the Applicant's relationship with AP is limited.

7. In relation to the factors in paragraph 8.3(4)(b) of the Direction, the evidence is that there is limited potential for the Applicant to play a positive role in AP’s life.  Although he wishes to take steps to gain custody of AP so that she and TL are not separated, it is unclear whether this would be granted by the Children’s Court.  Accordingly, there is doubt as to whether the Applicant will be able to play a positive role in AP’s life in the future. 

8. Having regard to the factors in paragraph 8.3(4)(c) and 8.3(4)(g) of the Direction, the evidence is that AP was present when the Applicant committed family violence offences against her mother, WP. Any future criminal offending by the Applicant, particularly domestic violence offending towards her mother, would have a negative psychological if not physical impact on AP.  The Tribunal finds that any violent acts the Applicant may perpetrate against women in his presence in the future would not be in AP’s best interest to witness.

9. Having regard to the factors in paragraph 8.3(4)(d) of the Direction, if the Applicant were removed from Australia this would almost certainly end any possibility of physical contact between him and AP for the foreseeable future. However, given the Applicant’s limited communication with AP due to her being in foster care, the fact that he has not been present for most of her life, and that he would be able to maintain communication with her via electronic means, the impact of the Applicant’s removal from Australia on AP would be relatively limited.

10. In relation to the factors in paragraph 8.3(4)(d), 8.3(4)(e) and 8.3(4)(f), the evidence is that TL has been in the primary care of her mother and a foster carer since July 2019. There is no evidence before the Tribunal about AP’s views in relation to the impact on her of the Applicant being removed from Australia. Nor is there evidence of AP having been abused or neglected by the Applicant, however she was witness to the family violence committed by the Applicant against WP in July 2019. 

11. On the basis of the evidence before it, the Tribunal finds that, on balance, it is in AP’s best interests for the Mandatory Visa Cancellation Decision to be revoked.

12. In summary, applying the guidance in paragraph 8.3(4) of the Direction, the Tribunal finds that Primary Consideration 3 weighs marginally in favour of revocation of the Mandatory Visa Cancellation Decision as it is in the best interests of SL, TL and AP (individually and cumulatively) for the Applicant to be permitted to remain in Australia.

    Primary Consideration 4 – The expectations of the Australian community

13. Paragraph 8.4 of the Direction states:

    (1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

    (2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

    (a)acts of family violence; or

    (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)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; …

    (e)…

    (f)…

    (3)  The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

    (4)  This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.

14. The Full Court of the Federal Court considered paragraph 11.3(1) of Direction 65, which is analogous to paragraph 8.4 of the Direction, in FYBR v Minister for Home Affairs (‘FYBR’).[144] The majority (Charlesworth and Stewart JJ) concluded as follows:

    …[Paragraph] 11.3 contains a statement of the government’s views as to the expectations of the Australian community… [which operates] as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[145]

    [I]t is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations.[146]

    [However] … [t]he question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[147]

    … [I]t will be necessary in every case to assess the circumstances particular to the visa applicant in question in order to reach an evaluative assessment of “appropriateness”.[148]

    [144] [2019] FCAFC 185.

    [145] Charlesworth J at [66] – [67]; Stewart J at [91].

    [146] Charlesworth J at [42]; Stewart J at [104].

    [147] Charlesworth J at [76].

    [148] Stewart J at [97].

15. The effect of paragraph 8.4 is that it imputes to the Australian community the expectation that non-citizens who have permission to remain in Australia will obey Australian laws. The question to be addressed does not involve an inquiry into what the Australian community does or does not expect, because that is normatively expressed in the terms of the consideration: paragraph 8.4(4). Rather, the relevant inquiry is ‘whether it is appropriate to give more or less weight to a deemed community expectation’ of non-revocation of a mandatory visa cancellation ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.’[149] As a normative expression, this consideration indicates the likelihood that community expectation will in most cases lead to non-revocation, without dictating an inflexible conclusion. The question for a decision-maker is the weight to be attached to this consideration.

    [149] Charlesworth J at [77].

16. Having regard to the expectations of the Australian community as stated in paragraph 8.4 of the Direction, the Applicant has breached numerous Australian laws and has been convicted of multiple offences in Australia, including a number of very serious offences. The Applicant’s offences and other conduct include family violence against his wife and partner which, as recognised by paragraphs 8.4(2)(a) and (c) of the Direction, should generally result in the cancellation of the non-citizen’s visa. Accordingly, under paragraph 8.4(1) of the Direction the Australian community would have an expectation that the Applicant’s visa should remain cancelled due to his violent and serious offending.

17. The Applicant arrived in Australia at the age of 17 years and is now aged 26 years. Having regard to the Principles in sub-paragraph 5.2(4) of the Direction, particularly the length of time the Applicant has resided in Australia, the Australian community would likely afford some degree of tolerance for the Applicant’s criminal behaviour as he has lived in Australia for almost a decade. The Tribunal finds that the length of time the Applicant has been living in Australia is a factor that supports a finding that there is a higher level of tolerance by the Australian community for his criminal conduct than there would be for a non-citizen who has not lived in the community for an extended period.

18. The Principles in sub-paragraph 5.2(5) of the Direction recognise that the inherent nature of certain conduct is so serious that even strong countervailing considerations may be insufficient to justify revoking a mandatory visa cancellation, even if the non-citizen does not pose a measurable risk of causing physical harm to members of the Australian community. Family violence is expressly recognised in this sub-paragraph as this type of conduct. This supports a finding that this Primary Consideration weighs heavily against revocation of the cancellation decision.

19. Having had regard to the Government’s views in relation to the expectations of the Australian community and giving them appropriate weight, and taking into account the nature, seriousness and impact of the Applicant's criminal offending, and the duration of his residency in Australia, the Tribunal finds that Primary Consideration 4 weighs strongly against revocation of the Mandatory Visa Cancellation Decision.

    OTHER CONSIDERATIONS

20. While the Primary considerations carry particular weight, the Direction acknowledges at paragraph 9 that ‘other considerations’ must be taken into account by the decision-maker where relevant.  Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’

21. The Tribunal notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection:[150]

    ... Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including nonrefoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.

    [150] [2018] FCA 594 at [23].

22. The ‘other’ considerations relevant to the Applicant’s circumstances are considered in the following paragraphs.

    International non-refoulement obligations

23. Paragraph 9.1 of the Direction relevantly provides:

    (1) 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. Australia has 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 Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.

    (2) In making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

    (3) However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.

    (4) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).

    (5) International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.

    (6) It may not be possible at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.

    (7) Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non-citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.

    (8) If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international non­ refoulement obligations.

24. In his request for revocation, the Applicant stated his fears and concerns if he were required to return to Malaysia:[151]

    1. No job
    2. Huge emotional hardship (i.e. missing my two children in Australia).
    3. No place to stay. My family are in Australia.
    4. Hard life in Malaysia. Poor economy.
    5. Breakup my family.

    [151] Exhibit 6, G13, 146.

25. These matters do not engage Australia’s non-refoulement obligations under the Migration Act as they do not indicate that the Applicant has a well-founded fear of persecution for a Convention reason nor that he faces a real risk of serious harm that would entitle him to complementary protection.

1. The Tribunal has had regard to the Department of Foreign Affairs and Trade (DFAT) Country Information Report Malaysia dated 29 June 2021, particularly the section relating to the economy and employment.[152]  This supports the Tribunal’s finding that the Applicant does not engage Australia’s non-refoulement obligations.

   [152] at [2.9]-[2.13].

   Extent of impediments if removed from Australia

2. The Direction states at paragraph 9.2:

   (1)Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

   a) the non-citizen’s age and health;

   b) whether there are substantial language or cultural barriers; and

   c) any social, medical and/or economic support available to them in that country.

3. Having regard to the factors in paragraph 9.2(1)(a), the evidence before the Tribunal is that the Applicant is 26 years of age and is generally in good health. He has a history of drug abuse, including methamphetamine.

4. Guided by paragraph 9.2(1)(b) of the Direction, the evidence before the Tribunal is that the Applicant resided in Malaysia until the age of 17 years and he has made a number of return trips to his home country in 2014, 2015 and 2016. He is familiar with the language and culture and there are no substantial language or cultural factors that would impede his re-settlement in Malaysia.

5. Having regard to paragraph 9.2(1)(c) of the Direction, the Applicant’s evidence is that if he were to be returned to Malaysia, he would have no job, no place to stay and would have a hard life due to the country’s poor economy. The Applicant also has expressed concern that his removal would result in physical separation from his children and deny him the opportunity to reconnect with his wife and ‘save the marriage’, which would cause him ‘huge emotional hardship’.[153]

   [153] Exhibit 6, G13, 146.

6. The Tribunal is satisfied that the Applicant will have access to health services, medical treatment and welfare services in Malaysia similar to those available to other Malaysian citizens,[154] although these services will be a lower standard and more limited than those available to him in Australia. The Tribunal accepts that the Applicant will experience some difficulties in re-establishing himself in Malaysia, including finding accommodation and suitable employment. However, these impediments are not insurmountable. The Applicant’s employment history in Australia includes working as a waiter, cleaner, and salesperson. He also worked as a tiler in his own business from 2013 to 2019. The Applicant therefore has skills and experience that are transferrable and should permit him to find work in Malaysia. Accordingly, the Tribunal is satisfied that the Applicant has the capacity to support himself and would be able to establish himself and maintain basic living standards in the context of what is generally available to other citizens of Malaysia.

   [154] See DFAT report at [3.156]-[3.158].

7. The Tribunal accepts that the Applicant will experience significant emotional hardship upon return to Malaysia due to the physical separation from his two sons and step-daughter, his mother and brother, and the familial and social network he has established during his residency in Australia for almost a decade. The evidence before the Tribunal is that the Applicant’s father and members of his extended family, including his grandparents, reside in Malaysia. These family members should be able to provide the Applicant with a degree of emotional and practical support as he settles back into life in his home country.

8. On the basis of the evidence before it and guided by the factors in paragraph 9.2 of the Direction, the Tribunal finds that this other consideration weighs marginally in favour of the revocation of the Mandatory Visa Cancellation Decision.

   Impact on victims

9. The Direction states in paragraph 9.3:

   (1) 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.

10. Whilst the evidence is that the victims of the Applicant’s offending have been impacted by the offending, there is no information available as to how non-revocation of the Mandatory Visa Cancellation Decision would affect them. The Tribunal finds that this other consideration is of neutral impact in assessing the impact on the Applicant’s victims of his family violence offending of a decision to revoke the Mandatory Visa Cancellation Decision.

    Links to the Australian community

11. Paragraph 9.4 of the Direction requires decision-makers to have regard to paragraphs 9.4.1 to 9.4.2 below.

    Strength, nature and duration of ties to Australia

12. Paragraph 9.4.1 requires consideration of the strength, nature and duration of the Applicant’s family and social ties to Australia:

    (1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

    (2) Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community.  In doing so, decision-makers must have regard to:

    a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

    i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and

    ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

    b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

13. Having regard to paragraph 9.4.1(2)(a) of the Direction, the evidence before the Tribunal is that the Applicant has resided in Australia since November 2012 having arrived in Australia at the age of 17 years.  He had three subsequent brief departures in 2014, 2015, and 2016, and his most recent arrival was on 5 May 2016.[155] He attended two secondary schools in Australia for a period totalling approximately 15 months.[156] His employment history in Australia includes working as a waiter, cleaner, and salesperson, in addition to establishing his own tiling business which operated from 2013 to 2019. He contributed to the Australian community through his active participation in Buddhist activities at the Fo Guang Shan Nan Tien Temple.[157]

    [155] Exhibit 6, G14, 148 – 149.

    [156] Exhibit 6, G13, 144.

    [157] Exhibit 6, G13, 145.

14. In relation to the factors in paragraph 9.4.1(1) and 9.4(2)(b) of the Direction, the Applicant has immediate family members in Australia, being his mother and his brother. He states that he has a very close and loving relationship with his mother and that she would suffer emotional hardship if he was removed from Australia. The Applicant has contact with his former partner WP, who is the mother of TL and AP. She contacts him twice a week to enable him to speak to AP via video call when she visits her daughter in foster care. The Applicant’s evidence is that he was providing financial support for his son and step-daughter prior to his incarceration. The Applicant has lost contact with his wife, BMZ and son, SL. The Applicant has other ties to Australia, being an aunt, two nieces/nephews and one cousin in Australia.  He submits that he has a close relationship with his extended family members..

15. Notwithstanding the absence of representations from the Applicant’s immediate family members, the Tribunal has considered the impact of non-revocation upon his immediate family in Australia and finds that they would experience emotional, practical, and financial hardship. The Applicant’s son, TL and step-daughter, AP would experience emotional hardship if he were removed from Australia.  If the Applicant provided financial support for WP, she may experience some financial hardship raising the two children as a sole parent.  The Applicant’s mother and brother and extended family members would likely experience emotional distress if the Applicant were returned to Malaysia.  As the Applicant is no longer in contact with BMZ and SL, the Tribunal finds that the impact on them of his removal will not be significant. It also accepts that the Applicant’s friends and/or community members in Australia will be upset or disappointed by a non-revocation decision.

16. As the Applicant’s began offending in 2016, being just four years after his arrival in Australia, the Tribunal has in accordance with paragraph 9.4.1(2)(a)(ii) and 9.4.1(2)(a)(ii) of the Direction given less weight to his ties to Australia.

17. On the basis of the evidence before it, the Tribunal is satisfied that Applicant’s family members, friends and other community members who are Australian citizens or have a permanent right to remain in Australia, would be negatively impacted if the Applicant’s visa is not reinstated, and that this consideration weighs in favour of revocation of the Mandatory Visa Cancellation Decision.

    Impact on Australian business interests

18. The Applicant does not claim that any Australian business interests would be affected by his removal to Malaysia. The Applicant’s employment history has not been such that his removal from Australia would mean that the successful completion of a major project or the delivery of an important service in Australia would be compromised. Accordingly, the Tribunal has given the factors in paragraph 9.4.2(3) no weight.

19. On the basis of the evidence before it, and having regard to the factors in paragraph 9.4, particularly the length of time the Applicant has resided in Australia, his contributions to the community, as well as the strength and nature of the Applicant’s family and social ties in Australia, the Tribunal finds that this consideration weighs marginally in favour of revocation of the Mandatory Visa Cancellation Decision.

    CONCLUSION

20. In summary, the Tribunal finds that Primary Considerations 1 and 2 weigh strongly against revocation of the Mandatory Visa Cancellation Decision. The nature and seriousness of the Applicant’s criminal offending is very serious, particularly as it has largely involved family violence offences against his wife and former partner in a family violence context, and a non-consensual sexual act against a vulnerable victim. The medium to high risk of him committing future criminal offences coupled with the nature and seriousness of the harm this would cause to his future victims is such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.

21. Primary Consideration 3 weighs in favour of revocation of the Mandatory Visa Cancellation Decision. It is in the best interests of the Applicant’s two sons and his step-daughter for him to remain in Australia.  Primary Consideration 4 weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that Applicant’s serious and violent offending should cause him to forfeit the privilege of remaining in Australia, and this is not outweighed by his nine-year residence in Australia and his employment contributions.

22. In regard to the relevant Other Considerations, only his links to the Australian community weigh in favour of revocation of the Mandatory Visa Cancellation Decision.

23. The Tribunal is not satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, and accordingly the Reviewable Decision to refuse to revoke the Mandatory Visa Cancellation Decision must be affirmed.

I certify that the preceding 209 (two hundred and nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk

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

Associate

Dated: 20 April 2022

Date(s) of hearing:	1 and 2 March 2022
Applicant:	Self-Represented
Solicitor for the Respondent:	Mr J Papalia, AGS