Mahata and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 3070

Mahata and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3070 (27 September 2023)
Division:GENERAL DIVISION
File Number(s): 2023/4893
Re:Satyajit Mahata
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:27 September 2023
Place:Perth

The decision of the delegate of the Minister dated 4 July 2023 not to revoke, under s 501CA(4) of the Migration Act 1958 (Cth), the cancellation of the Applicant’s Class WC Subclass 030 Bridging C visa is affirmed.
................[Sgd]........................................................
Deputy President Boyle
CATCHWORDS
MIGRATION – S 501CA(4) OF MIGRATION ACT – DECISION NOT TO REVOKE MANDATORY CANCELLATION OF VISA – APPLICANT IS A CITIZEN OF INDIA – VISA CANCELLED WAS BRIDGING C VISA THAT EXPIRED IN 2022 AFTER SUBSTANTIVE VISA REFUSED – DIRECTION 99 CONSIDERED - ASSAULT – FAMILY VIOLENCE – LEGAL CONSEQUENCES OF “REINSTATING” EXPIRED TEMPORARY VISA LIMITED – CONSIDERATIONS OF PROTECTION OF THE AUSTRALIAN COMMUNITY, FAMILY VIOLENCE AND EXPECTATIONS OF THE AUSTRALIAN COMMUNITY WEIGH AGAINST REVOCATION OF THE CANCELLATION – CONSIDERATIONS OF STRENGTH, NATURE AND DURATION OF APPLICANT’S TIES TO AUSTRALIA, BEST INTERESTS OF MINOR CHILDREN AND LEGAL CONSEQUENCES OF DECISION VERY LIMITED AND ONLY WEIGH MARGINALLY IN FAVOUR OR DO NOT WEIGH IN FAVOUR OF REVOCATION – CONSIDERATIONS AGAINST REVOCATION OF THE CANCELLATION OF THE APPLICANT’S BRIDGING C VISA SIGNIFICANTLY OUTWEIGH THOSE IN FAVOUR OF REVOCATION OF CANCELLATION – WEIGHING AND BALANCING EXERCISE – REVIEWABLE DECISION AFFIRMED
LEGISLATION
Migration Act 1958 (Cth) ss 189, 198, 199, 205, 499(1), 499(2), 500(6B) , 501, 501(3A), 501(6)(a), 501(7)(c), 501CA(4)
Migration Regulations 1994 (Cth) Schedule 2 cl 030.511(1)(b)(ii), Schedule 5 (Special Return Criteria 5001 and 5002)
CASES
Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404
CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Dinh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1487
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Dunasemant and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 1967
Fetelika and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 2606
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454
FYBR v Minister for Home Affairs [2019] FCA 500
Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 66
Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3445
Minister for Home Affairs v HSKJ [2018] FCAFC 217; [2018] FCAFC 217; (2018) 266 FCR 591
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234
Nyemah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2107
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
RNSQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1111
Soames and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1955
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
XNBW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 441
XRGY and Minister for Immigration, Citizenship, and Multicultural Affairs [2023] AATA 755
ZFZM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1633
SECONDARY MATERIALS
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA paras 4(1), 5.1, 5.2, 6, 7, 8, 8.1, 8.1.1(1)(a)-(e), 8.1.2(1), 8.1.2(2)(a)-(b), 8.2(1)-(3),8.3(1)-(4), 8.4(1)-(4), 8.5(1)-(4), 9.1, 9.2, 9.3, 9.4
Australian Institute of Health and Welfare, Family, Domestic and Sexual Violence, (Webpage, updated 7 September 2023) <
Liberty Domestic and Family Violence Specialist Services, Domestic and Family Violence Remembrance Day (webpage, posted 4 May 2023)
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REASONS FOR DECISION
Deputy President Boyle
27 September 2023
THE APPLICATION

The Applicant seeks review of the decision of a delegate of the Respondent (Minister) dated 4 July 2023[1] not to revoke, under s 501CA(4) of the Migration Act 1958 (Cth) (Act), the cancellation of the Applicant’s Class WC Subclass 030 Bridging C visa.
[1] R1/12.
The Applicant’s Bridging C visa was cancelled on 23 May 2022[2] under s 501(3A) of the Act because he did not pass the character test by reason of having a “substantial criminal record” because he had been sentenced to a term of imprisonment of 12 months or more (s 501(6)(a) and 501(7)(c) of the Act) and he was serving a sentence of imprisonment on a full-time basis.[3]
[2] The Department’s Notification of Decision letter dated 5 July 2023 (R1/9) wrongly identifies the date of cancellation of the Bridging C visa as being 4 July 2023.
[3] R1/123-4.
The Applicant made representations for the revocation of the cancellation of the Bridging C visa and, on 4 July 2023, the delegate of the Minister made the decision not to revoke the cancellation of the visa (see [1] above). The Applicant was, it would appear, notified of that decision on 5 July 2023 and lodged the present application for review in the Tribunal on 6 July 2023.[4] The reason that I say that it appears that the Applicant was notified of the decision not to revoke the cancellation of the Bridging C visa on 5 July 2023 is that the Respondent did not file a copy of a completed acknowledgment of receipt/confirmation of service, the blank form of which appears as page 3 of the Department’s Notification of Decision letter dated 5 July 2023.[5] In this regard I refer to my comments in Dinh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[6] at [3]-[19], in particular [3]-[7] as to the deficiencies in the Department’s standard documentation (even if completed) and to the recommendation in [20] of that decision. It is clear that nothing has been done by the Department to address the deficiencies in its form and procedures identified or to implement the recommendations in [20] of that decision. In the probably vain hope that something might be done, I repeat my comments and recommendations in [3]-[20] of Dinh.
[4] R1/1.
[5] R1/9-11.
[6] [2021] AATA 1487.
Although there is no evidence of the date on which the Applicant was served with the notice of the delegate’s decision not to revoke the cancellation of the Bridging C visa, that could not have occurred any earlier than 5 July 2023, the date of the letter advising of the decision. Accordingly, the application, lodged with the Tribunal on 6 July 2023, was made within the nine days prescribed by s 500(6B) of the Act.
BACKGROUND
The Applicant is a 28-year-old citizen of India.
He arrived in Australia as an eighteen-year-old on 16 July 2013, as the holder of a Student visa.[7] The Applicant has not returned to India since that time and has remained in Australia as the holder of a number of student visas, bridging visas and a graduate visa.
[7] R1/85 and 121.
On 20 August 2021, the Applicant applied for a further Temporary Graduate (Post-Study Work Subsequent Entrant) (class VC) (subclass 485) visa (graduate visa). As a result, the Applicant was granted the associated Bridging C visa,[8] being the visa which was cancelled under s 501(3A) on 23 May 2022.
[8] R2/153.
By letter dated 30 August 2021,[9] the Department advised that it had issued the Bridging C visa. That letter noted the receipt of the application for the graduate visa (noted as “Received”) and the issue of the Bridging C visa (noted as “Active”).
[9] R2/153-4.
That letter also contained an explanation of each condition of this Bridging C visa.
The second page of that letter,[10] under the heading “When does my Bridging visa end?”, advised:
If your application is granted, your Bridging visa will end and your new visa will become active.
If your application is invalid, refused, withdrawn or has an outcome from a merits review decision, your Bridging visa will end after a specified period of time.

To understand more about when a bridging visa ends, refer to R2/154.

By letter dated 6 May 2022,[11] the Department advised the Applicant that his application for the graduate visa had been refused on 6 May 2022. The letter advised that the Applicant could have the refusal decision reviewed by the Tribunal and that such an application for review had to be made within 21 days of receipt of the refusal decision.

[11] R2/155-8.

Under the heading “Your immigration status”, the letter of 6 May 2022 advised as follows:

During the processing of your visa application, a bridging visa was granted to you for the duration of the visa processing period. If you make a valid application for merits review of this refusal decision then that bridging visa will remain in effect during the merits review proceedings. Otherwise your bridging visa will cease 35 calendar days after the date of the decision. More information on bridging visas is available on our website added)

The advice that the Bridging C visa would cease within 35 days of the decision to refuse the graduate visa is in accordance with cl 030.511(1)(b)(ii) of Schedule 2 of the Migration Regulations 1994 (Cth).

That letter also advised as follows:

Leaving Australia
You must depart Australia by the date your bridging visa ceases. If you stay in Australia after the date your bridging visa ceases (and you do not hold another visa) you will be here in Australia unlawfully. This has serious consequences including possible detention and removal from Australia.
…
Lodging another application
While you are in Australia, you can only lodge another application in very limited circumstances for a visa to allow you to remain in Australia. Refer to Form 1026i Limitations on Applications in Australia available on our website immi.homeaffairs.gov.au/help-support/ departmental-forms/pdf-forms.
(Original emphasis)

LEGISLATIVE FRAMEWORK

Section 501(3A) of the Act relevantly provides that:

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) paragraph (6)(e) (sexually based offences involving a child); 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.

Section 501(6) of the Act relevantly provides:

For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); ...
(Original emphasis.)

A “substantial criminal record” is, relevantly, defined by s 501(7) of the Act as follows:

For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
...
(Original emphasis.)

Section 501CA of the Act relevantly provides:

(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
...
(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.

(Original emphasis.)

Section 499(1) of the Act provides that:

The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.

Section 499(2A) of the Act provides that “A person or body must comply with a direction under subsection (1).”

Direction 99

On 23 January 2023, the relevant Minister for the purposes of s 499 of the Act, made a direction titled “Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 99).
The commencement date for operation of Direction 99 was 3 March 2023. Upon its commencement, Direction 99 revoked the operation of “Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 90).

Paragraph 5.1 sets out the objectives of Direction 99. Relevantly, para 5.1 provides:

1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa.
...
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen 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. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
(4) The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.

Paragraph 5.2 of Direction 99 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to revoke the cancellation of a visa under s 501CA of the Act. These principles are as follows:

(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) 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 (sic) 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.
(5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify 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 8.55(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 (sic) risk of causing physical harm to the Australian community.

Paragraph 6 of Direction 99 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 99 (where such considerations are relevant) in order to determine whether the decision to cancel the visa under s 501(3A) of the Act should be revoked.

Guidance in relation to how the relevant considerations are to be taken into account is found in para 7 of Direction 99 which provides that:

(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.

Paragraph 8 of Direction 99 is as follows:

In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.

Paragraph 9 of Direction 99 is as follows:

1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) Legal consequence of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests.

THE HEARING AND THE EVIDENCE

The application was heard on 13 September 2023. The Applicant represented himself and the Minister was represented by Ms M Scott. The Applicant was the only person to give evidence at the hearing.

The following documents were admitted into evidence:
(a)Statement of the Applicant, undated, filed in the Tribunal on 20 August 2023 (A1);
(b)Statement of Dr Debashish Mazunder, undated, filed in the Tribunal on 30 August 2023 (A2);
(c)Respondent’s G Documents (R1);
(d)Bundle of documents produced under summons (R2): and
(e)Bundle of IHMS documents (R3).
CONSIDERATION
Does the Applicant pass the character test?
Failure of the character test arises as a matter of law.[12] The character test is defined in s 501(6) of the Act (see [15] above). Under s 501(6)(a) of the Act, a person does not pass the character test if the person has “a substantial criminal record”. Section 501(7)(c) of the Act (see [16] above) provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more...”. The Applicant has been sentenced to a term of imprisonment of more than 12 months and he therefore has a substantial criminal record.
[12] Harrison and Minister for Immigration and Citizenship ([2009] AATA 47; (2009) 106 ALD 66.
The Applicant, rightly, concedes that he does not pass the character test.[13] I am satisfied that the Applicant does not pass the character test.
[13] A1, first paragraph.
THE ISSUE FOR DETERMINATION
As the Applicant does not pass the character test, he cannot rely on s 501CA(4)(b)(i) of the Act for the decision to cancel his visa to be revoked. The issue for determination, therefore, is whether the power under s 501CA(4)(b)(ii) should be exercised on the basis that there is another reason why the decision under s 501(3A) should be revoked.
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
The consideration of whether there is another reason why the decision to cancel the Applicant’s Bridging C visa should be revoked is, in this case, undertaken in slightly unusual circumstances in that the Bridging C visa ceased on or about 10 June 2022, that is 35 days after the graduate visa was refused on 6 May 2022. Accordingly, while a decision to revoke the decision to cancel the Bridging C visa would have the effect of “reinstating” the Bridging C visa from 23 May 2022, the Bridging C visa would, in any event, cease on or about 10 June 2022.[14] Therefore, a decision to revoke the cancellation of the Bridging C visa would not result in the Applicant having a visa and being released from immigration detention. He would still be liable to removal in accordance with s 198 and detention under s 189 of the Act.[15]
[14] Refer to above paras [11]]-[12].
[15] See also Direction 99 para 9.1(1).
There may, however, be other consequences flowing from a decision to revoke the cancellation of the Bridging C visa including the Applicant not being barred from making applications for certain types of visa (see s 501E(1) of the Act). Further, Special Return Criteria 5001 in Schedule 5 of the Migration Regulations requires a person applying for a visa not to have had a visa cancelled under s 501, 501A, 501B or 501BA, where the cancellation has not been revoked and the Minister has not personally granted a permanent visa to the person after the visa cancellation. Special Return Criteria 5002 essentially limit a person from being granted a visa within 12 months after being removed from Australia under ss 198, 199 or 205 of the Act, except in certain compelling and compassionate circumstances.
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)
Paragraph 8.1 of Direction 99 provides that, when decision-makers are considering the protection of the Australian community, they:
(1)... should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen's conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (para 8.1.1)
Paragraph 8.1.1 of Direction 99 relevantly provides:
1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)...
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
...
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;
...
The Applicant’s record of offending, as disclosed by the Australian Crime Intelligence Commission Check Results Report,[16] is as follows:
[16] R1/31-7. I note that Parramatta District Court results are also shown in the Applicant’s Australian Crime Intelligence Commission Check Results Report, however, these are reviews on appeal of the sentences imposed in the Bankstown Local Court and not separate offences. The Applicant’s counsel withdrew the appeal at hearing in the District Court.

Date of conviction

Court

Offence

Result

23/01/2020

Bankstown Local Court

Drive motor vehicle while licence suspended

Conditional Release Order W/O Conviction: 12 Months

07/03/2022

Sutherland Local Court

Contravene prohibition/restriction in AVO (Domestic)

S10A Conviction with no other penalty

27/04/2022

Bankstown Local Court

Stalk/intimidate intend fear physical etc harm (domestic)-T2

18 months imprisonment (aggregate)

27/04/2022

Bankstown Local Court

Contravene prohibition/restriction in AVO (Domestic)

27/04/2022

Bankstown Local Court

Contravene prohibition/restriction in AVO (Domestic)

27/04/2022

Bankstown Local Court

Contravene prohibition/restriction in AVO (Domestic)

27/04/2022

Bankstown Local Court

Common assault (DV)-T2

27/04/2022

Bankstown Local Court

Assault occasioning actual bodily harm (DV)-T2

27/04/2022

Bankstown Local Court

Destroy or damage property (DV)

The Applicant’s record of offending is not extensive. Apart from the conviction for driving a motor vehicle while licence suspended in 2020, the Applicant has convictions for stalk/intimidate intend fear physical etc harm (domestic), two counts of common assault, destroy or damage property, and assault occasioning actual bodily harm, involve family violence and breaches of AVO. His actions were exclusively carried out against S, his partner at the time.
The Minister’s Statement of Facts, Issues and Contentions (SFIC) made submissions to the following effect:
(a)As the offences were committed against his partner, the conduct must be considered very serious citing Direction 99 para 8.1.1(1)(a) which is also reflected in the sentences imposed citing para 8.1.1(1)(c):
(b)The breaches of the AVO related to S. The Applicant breached the terms of the AVO on six occasions. In particular, the Applicant:
(i)called and texted S a total of 118 times over an 8-day period (being approximately 14 times per day) from 21 October 2021 to 27 October 2021, despite the clear order that he must not contact S in any way;
(ii)picked S up from work on 26 October 2021, despite the order stating that he must not contact S in any way, nor come within 200 metres of her workplace.
(iii)assaulted S on 26 October 2021 by grabbing her handbag in an attempt to prevent her from getting away, in breach of the order that he not assault S;
(iv)attended the residence of S (against her wishes) on 27 October 2021, and sent her multiple messages, despite the order he not come within 200 metres of her residence;
(v)stalked S by coming within 80 metres of her following her report to the Police;
(vi)followed S home in his vehicle and approached her home to request the return of his computer.
(c)The breaches of the AVO were acts of family violence and as such are to be considered very serious.
(d)The Tribunal has held that crimes of domestic and family violence are to be regarded as matters of exceptional seriousness citing Dunasemant and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[17] A breach of the very orders which have the intention of precluding such violence should be viewed in the same way.
(e)The Applicant was given indicative sentences of three months, three months, four months, four months, three months and no sentence respectively. The Minister accepts that the maximum sentence for breach of an AVO is two years, but nevertheless submits that this should be balanced against the frequency of the Applicant’s conduct which, relevantly, included five contraventions over a period of eight days.
(f)The nature and seriousness of the Applicant’s offending behaviour, in totality, is captured by the District Court Judge charged with hearing his appeal against sentence.[18]
[17] [2022] AATA 1967 at [144].
[18] Citing those comments that appear at R1/49-50.
The Applicant did not file a SFIC. In his statement A1, the Applicant described his conduct towards his partner S as “hideous”.
In sentencing the Applicant on 27 April 2022, Magistrate Walsh made the following observations and findings:[19]
[19] R1/39-44.
[The Applicant] appears before me having entered pleas of guilty to the following charges, between 3 and 4 October 2021 at Lakemba he assaulted [S] thereby occasioned actual bodily harm to her. The maximum penalty for that offence is five years imprisonment. A plea of not guilty was entered on 13 October 2021, a plea of guilty was entered on 16 March 2022…
Sequence 2 is a charge that on 5 October 2021 at Lakemba he assaulted [S].

The maximum penalty for that offence is one of two years imprisonment. A plea of not guilty was entered on 13 October 2021, a plea of guilty was entered on 16 March 2022…
Sequence 3 is a charge that on 5 October 2021 at Lakemba he did intentionally or recklessly destroy property being a ceramic pot plant, the property of [S].

The maximum penalty for that offence is one of five years imprisonment. A plea of not guilty was entered on 3 October 2021. A plea of guilty was entered on 16 March 2022…
He was granted bail, there was placed in order to operate to restrain his behaviour in relation to the complainant an apprehended violence order. Two courts orders thus existed; a bail condition that required him to be of good behaviour and comply with the AVO and the AVO itself.
Between 21 October 2021 and 27 October 2021 [the Applicant] knowingly contravened order 2 of the AVO, being he must not approach [S] in any way unless that contact was through a lawyer. The maximum penalty for that offence is one of two years imprisonment. The second charge in that sequence is that on 26 October 2021 at Lakemba he further knowingly contravened a restriction in sequence 2 of that order, that he must not approach her as well as sequence 9B, that he must not go within 200 metres of any place where she worked. The maximum penalty for that offence is one of two years in prison.
Between 26 October 2021 and 27 October 2021 he further contravened the AVO being he must not assault or threaten [S]. The maximum penalty is one of two years imprisonment. On 26 October 2021 at Lakemba he assaulted her. It carries a maximum penalty of two years imprisonment. Further on 26 October 2021 he further breached his AVO, being order 2 that he must not approach her or go within 200 metres of any place where she lived. The maximum penalty is two years imprisonment.
On 27 October at Campsie he contravened order 1B of his AVO not to stalk, harass or intimidate her. The maximum penalty is one of two years imprisonment. Further on 27 October 2021 at Campsie he stalked her with the intention of causing her physical or mental harm. The maximum penalty for that is one of five years imprisonment.
…
…Domestic violence is a scourge on society, it is a prevalent offence, and therefore the need for greater emphasis on punishment, general deterrence, specific deterrence, making an offender accountable, denouncing his behaviour and recognising the harm done to victims of domestic violence have great weight.
…
…This is in my view a serious example of manipulative and dominating behaviour by a physically superior person over an inferior person, physically, in a relationship. The facts portray that.
…
…They had been in an intimate relationship for some years. At about 12pm on Sunday 3 October [S] was at home getting ready for work. She asked him if she could use the bathroom which he was occupying. He became agitated and she kept asking to use the bathroom. He emerged from the bathroom stating to her and he had broken something in the bathroom and that it was her fault because she kept asking to use the bathroom.
It is worth simply pausing there. The blame game had already started. What was to follow was her fault because she had spoken to him and interrupted him. He was entitled to act the way he was to act. That entitlement is at the very heart of domestic violence…It is the very anathema of a civilised society and that is why it should be stamped out.
And so having blamed her for him doing something in the bathroom to break something, it continued. Unremarkably they started to argue. Suddenly he used palm of his right hand to slap her to left side of the face. The experience of courts is that that normally happens because two things normally operate. Firstly, there is either a background or cultural issue that he thinks he is entitled to act that way, or secondly he lacks the capacity to reason and to argue out the point and so resorts to violence. Either way it is criminal behaviour.
The slap caused her to become dazed and confused. About five minutes later he used his other hand to slap her, this time to the right side of her face. It caused immediate swelling under her right eye, a scratch mark to the right cheek and red swelling to her left cheek. The essence of the assessment of objective seriousness of the offending behaviour and the objective seriousness is the amount of force that was used, the intention that must be behind that force. Two slaps in the circumstances to the face is not overly forceful, it is not a closed fist, it is not an elbow, it is not the use of an implement. It is however in my view in these circumstances significant that there were two slaps separated in time where there was time to think, to pause, to reflect. To analyse whether you were doing something that was the anathema to civilised society, or to your professed love for the person you were hitting. But he persisted.
I find the objective seriousness not insignificant at all. The injuries to her may have been swelling which later came out as bruising, but that does not make them so insignificant to reduce the objective criminality in my view.
On the Tuesday that followed that Sunday she informed him that she would be leaving home to go to work. He told her that she must clean up eyeglasses and a pot plant that he had accidentally broken. She attempted to leave but he prevented her by pushing her with both hands away from the front door. He pushed her on a number of occasions and she attended to the mess and cleaned it up.
That reinforces my view as to his perception of her demeaned role that she was nothing more than a servant, contrary to his professions of love that come to me through the letter of apology.
He again told her that if she did not clean up the mess well enough she would have to do it again, and indeed he insisted that she do it again. They engaged unsurprisingly in an argument and she ran out of the premises through the front door. As she was leaving she noticed him standing up on their balcony with a pot plant in his hand.
Two things emerge. Firstly, to put himself in a position where he would be on the balcony where she was trying to leave the front of the premises, and arming himself with a pot plant. That takes some cognition.
He threw the pot plant from the second storey balcony in the direction that she was trying to exit from. It narrowly missed her, and so the damaging of property per se is aggravated in my view by the intention that was behind it…
DVEC was obtained outlining the events. She was in pain in relation to the assault of 3 October, and she had been taking Panadol tablets to assist with the pain. She provided photographs taken shortly after the incident which showed her injury. Police were able to see that she had bruising under her right eye…
…
He was of the belief that his actions were necessary and did not believe that what he did was wrong as she was not listening to him. It is the classic case of domestic violence and manipulative behaviour.
There is an aggravating factor having assessed the objective seriousness in reaching an appropriate sentence under s 21A(2) in that it occurred in the home of the victim.
The magistrate then outlined the facts that gave rise to the assault charge which was that the Applicant had grabbed S’s arm. That action also was one of the breaches of the AVO. The magistrate then outlined the facts that gave rise to the stalking charge and conviction which were:[20]
When finished talking to police [S] left the police station and headed along Campsie Street to go to Campsie Train Station. Police had seen the offender not long before and police utilised an unmarked car to follow her along her route to the train station. Within seconds he appeared from an unknown location whilst police were making a vehicle manoeuvre and began following her at about a 40-metre gap. He followed her for about 80 metres and was only stopped by police who blocked his path using the unmarked police vehicle.
[20] R1/44.
In relation to the seriousness of the offences, Magistrate Walsh said:[21]
I would assess the objective seriousness of each as not insignificant.
[21] R1/44.
In relation to the Applicant’s acceptance of responsibility and remorse, Magistrate Walsh said:[22]
I do not accept that there is at this stage real contrition and remorse. I accept that there may be sorrow for his predicament and for why he is in that predicament.
[22] R1/45.
I also note the comments on the seriousness of the Applicant’s offending made orally by Judge Craigie in the District Court of New South Wales in reviewing the Applicant’s sentence:[23]
I strongly suggest that your client may have been fortunate before the magistrate. We have here a situation of repeated breaches of an apprehended violence order, of acts of violence, assault including instances of slapping, a persistence in following the victim, an attitude as he said to the police that his actions at one stage were necessary in regard to obtaining the cooperation of subservience of the victim.

On multiple occasions these breaches and a persistence in an attitude that I regard as high-end level of defiance of the law.
[23] R1/49.

The above comments were made by his Honour to the Applicant’s counsel shortly before the Applicant instructed counsel to withdraw the appeal.[24] I am, accordingly, not bound by the comments as I would be had they been the basis upon which the Applicant was sentenced,[25] however, the observation made by Craigie J is, in my view, accurate.
[24] R1/50.
[25] Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197 at [40] and [45]); (1999) 91 FCR 234.
In assessing the seriousness of the Applicant’s offending and other conduct against the considerations identified in para 8.1.1 of Direction 99 relevant in this case, I find that:
(a)Paragraph 8.1.1(1)(a) - the Applicant has been convicted of crimes of violence against a woman (para 8.1.1(1)(a)(i) and (ii)), assault of a member of the Applicant’s family as defined in para 4 of Direction 99 (para 8.1.1(1)(a)(iii)). This conduct comes within the definition of family violence in subpara (a) of the definition of family violence. His conduct the subject of the convictions also comes within the definition of family violence in subparas (c) (stalking) and (e) (intentionally damaging property) as well as being behaviour which is coercive, controlling or causing a family member fear which also comes within the definition of family violence. This conduct must be viewed very seriously.
(b)Paragraph 8.1.1(1)(b) – the Applicant’s conduct does not fall within the scope of this subparagraph.
(c)Paragraph 8.1.1(1)(c) – as the relevant offending came within the conduct mentioned in subparas (a)(ii) and (a)(iii), this subpara does not apply.
(d)Paragraph 8.1.1(1)(d) – the Applicant committed the relevant numerous offences over a short period. In that sense it could be said that the offending was “frequent”. Given the short period over which the offences were committed, there is no relevant “trend of increasing seriousness”, which I take to be directed at consideration of whether there is a trend over time.
(e)Paragraph 8.1.1(1)(e) – given the very significant number of breaches of the AVO and bail terms, I consider that the cumulative effect of the Applicant’s offending to be demonstrative of a deliberate disregard for the law and a poor attitude towards his partner.
As noted above, Direction 99 requires the decision-maker to view conduct described in para 8.1.1(1)(a) “very seriously”. The sheer number of offences committed by the Applicant and the very serious nature of those offences, causes me to consider the Applicant’s criminal record, and therefore the conduct reflected by that record, to be very serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
Paragraph 8.1.2 of Direction 99 relevantly provides:
(1) 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 harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen 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).
Nature of harm to individuals or the Australian community (8.1.2(2)(a))
The Minister’s SFIC contended that acts of family violence have a physical (as demonstrated by the bruising on the victim after the assault) and psychological (as demonstrated by S fleeing up the street) effect on victims. The Minister quoted Magistrate Walsh’s following observations on family violence made in sentencing the Applicant:[26]
…I come to the view that no, domestic violence is bullying behaviour. It is the domination by somebody, one against the other, because you can, because you can get away with it, because it’s normally behind closed doors, because you can exert your superiority. It is the very anathema of a civilised society and that is why it should be stamped out. [emphasis added]
[26] Respondent SFIC at para [43].
The Minister also cited the report made by S to the police to the effect that she was fearful of what the Applicant would do if he continued his behaviour and she was fearful of returning to her own residence.[27]
[27] R2/121-4.
The Minister contended that the fear of S that she may be killed in the future by an act of family violence is one which has become true for many victims.[28]
[28] Citing < (advising 1 in 3 murders in 2021 were family/domestic violence related);
According to the Minister, Direction 99 makes clear that family violence leads to a form of harm that the Australian community considers to be unacceptable, citing para 8.5(4)(a), (which I assume is meant to be a reference to para 8.5(2)(a)) and that, therefore, any risk of harm is unacceptable. I do not accept that contention. As I noted at [48] of Fetelika and Minister for Immigration, Citizenship and Multicultural Affairs[29] in relation to a similar contention based on para 8.1.2(1) of Direction 99:[30]
The Minister contended, however, that the harm that would be caused if the conduct were to be repeated, is so serious that any risk that it may be repeated is unacceptable, citing para 8.1.2(1) of Direction 99. I do not accept that contention which, in my experience, appears to be a standard contention made by the Minister in most cases involving Direction 99. It is a submission that should be reserved for cases involving only the most serious of conduct and harm. A finding that “any risk that it may be repeated...[is] unacceptable” under para 8.1.2(1), is, in effect, a finding that an applicant’s visa must remain cancelled. If a risk is unacceptable, by definition, it cannot be accepted no matter how strong the countervailing considerations. The Minister does not identify any particular elements or characteristics of the Applicant’s conduct, or the harm that would be caused, which would warrant elevating this case to one coming within the operation of the final sentence of para 8.1.2(1).
[29] [2023] AATA 2606.
[30] I note, however, Feutrill J’s finding in RNSQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1111 at [75] that:
I find that the harm to individuals or the Australian community should the Applicant engage in the violent behaviour that he has in the past is serious.
The likelihood of the non-citizen engaging in further criminal or other serious conduct (8.1.2(2)(b))
The Minister’s SFIC contended that, on the material before the Tribunal, the Applicant’s risk of reoffending is “considered low” citing New South Wales Department of Corrective Services Offender Case Plan which noted the Applicant as being “supervised as T2/Low risk”.[31]
[31] R2/61.
The Minister pointed out that the Applicant did not complete the recommended Remand Domestic Violence Program. The Applicant has completed courses relating to healthy eating and exercise and managing financials, but no courses specific to his offending.[32]
[32] Respondent SFIC at para [48].
The Minister contended that, while the Applicant attributed part of his offending to being under the influence of illicit substances and his beliefs surrounding relationships being flawed, he has undertaken no course in relation to addressing either of these issues. According to the Minister, the Applicant resorted to drugs following a ‘decline in his emotions and depression with the added financial pressure’. He has not, according to the Minister, given any indication that he has the skills and strategies (and supports) in place such that, should these same matters arise, he will not resort to the same drug taking behaviour.[33]
[33] Respondent SFIC at para [49].
In his statement A1, the Applicant said:
Currently in immigration detention, despite the rampant use of drugs here I have abstained and been on my best behaviour. I believe I have the right mindset to never turn to drugs or alcohol again and have my uncle to support me.
I hope that is evidence enough of my low risk of offending.
…
To conclude, I am a changed man looking for another shot at life in Australia.
The Applicant in the Personal Circumstances Form,[34] in response to the question as to what courses he had completed, advised that he has “signed up for GEO Life Skills and GEO Know Your Score” which were available in Junee Correctional Centre.[35] I asked the Applicant at the hearing what courses he had completed. His answer was that there were not many courses available to him. He said that he was apparently eligible for a domestic violence program but that had not been offered to him. He said that he “…did an alcohol and drugs course in prison”.[36] I asked him whether he had done any anger management programs. His evidence was that there was not an anger management course available when he was in prison. I then asked whether he had made any enquiries as to what courses might be available to him if he were released into the community. His evidence was that he had not made any such enquiries.[37]
[34] R1/70-84.
[35] R1/80.
[36] Transcript at 18.
[37] Transcript at 19.
Later in his evidence, the Applicant was asked whether he had completed any courses in relation to emotional management. His evidence was that he had done a “life skills” course in gaol which had some anger management component and that he was “more in control of [his] emotions”.[38] He said that he had learnt never to be violent. He also said in cross-examination that he had undertaken a drugs and alcohol course while in prison a month or two before he was released.[39]
[38] Transcript at 46.
[39] Transcript at 47.
Following that evidence, the Applicant was taken by counsel to the prison records which did not indicate the Applicant as having undertaken such courses. In particular, the Applicant was taken to the New South Wales Department of Corrective Services case note reports which recorded the Applicant as having undertaken a Life Skills Module- Healthy Living on 16 August 2022 which is described as relating to exercise and food recommended for healthy living,[40] a Life Skills Money-wise Module undertaken on 26 August 2022, which is described as relating to understanding finances, and developing good financial habits[41] . That record also indicated that the Applicant had attended a Straight Talking program with a 95% attendance rate and as having completed a “PrivPro Criminogenic Equivalent”. There was no record of any drug and alcohol or anger management courses, or at least not specifically described as such, although the Applicant’s evidence was that the Talking Straight course involved management of emotions.[42]
[40] R2/88.
[41] R2/90.
[42] Transcript at 48.
The Applicant’s attitude to his offending is relevant in considering the likelihood of his reoffending. In that regard, I am concerned by the Applicant’s lack of real remorse for his actions involving S or any real appreciation of the seriousness of his offending behaviour. The Minister pointed to the sentencing magistrate’s observation that:
I do not accept that there is at this stage real contrition and remorse. I accept that there may be sorrow for his predicament and for why he is in that predicament.
The Minister contended that this lack of remorse is reflected by the fact that the Applicant pleaded not guilty to his offences, and it was only some five months later that he changed his plea to guilty. Further, following the offending from 3-5 October 2021, the Applicant told Police that he did not do anything wrong and that his actions were necessary because S was not listening to him. That is, the Applicant felt it was necessary to slap S twice, prevent her from leaving the apartment and throw a pot plant at her from a second story balcony because she was not submitting to his requests.[43]
[43] Respondent SFIC at para [51].
The Minister also pointed to New South Wales Police custody management records[44] which recorded the Applicant being abusive towards female detention officers. These records included the following entries:
(a)Report that on 20 December 2021 the Applicant was taken from his cell to speak to his father in India but was taken back to his cell “due to his aggressive and threatening behaviour”[45]
(b)Recorded that on the same day the Applicant had wanted to speak to the Indian consulate to provide him with legal representation rather than the “shit fucking hopeless legal aid”.
(c)Report that when he had been given two cereal packets for breakfast at 6.40 am, he had said “fuck off bitch, you white slut or I will bash you. I don’t want your food” and that at 7.29 am that morning he “Threw breakfast out of cell, said ‘get me a real meal bitch’”
[44] R2/26-29.
[45] R2/28.
The Applicant was taken to those reports in cross-examination. His evidence was that he would never say “that stuff”, but that he “was maybe really flustered with how she treated me”. Asked whether he remembered saying “Get me a real meal, bitch”, the Applicant’s evidence was “I don’t remember every remark I made. I just – I remember being really annoyed at her. She was – she wasn’t very pleasant either, if you must know”.[46]
[46] Transcript at 45.
There is, in my view, a pattern of the Applicant seeking to blame others, including his victim S, for what has happened to him. For instance, when asked whether he blamed S for his having slapped her, his evidence was that he was shocked when he heard his shirt rip.[47] He also denied having slapped her a second time notwithstanding that being conceded in the facts read to the court at sentencing and being the basis on which Magistrate Walsh sentenced the Applicant (see [40] above). I do not believe the Applicant’s evidence in that regard, but I am, in any event, bound to accept the findings of fact upon which the Applicant was convicted and sentenced.[48]
[47] Transcript at 42.
[48] SRT at [40] and [45].
Rather than, as he claimed accepting responsibility for the consequences of his actions, the Applicant has sought to dispute the facts of the offending admitted by him through counsel at the time of sentencing and to blame his convictions and imprisonment on incompetent or inadequate legal representation. He in fact also blamed his parents for the predicament that he found and now finds himself in for not having supported him by providing a good lawyer for him The Applicant’s evidence was:[49]
[49] Transcript at 24.
MS. SCOTT:Is it the case that they didn’t support you as best as they could have because you thought they should’ve found you a better lawyer?
APPLICANT: I’m sure, yes. Because, as you know, I ended up with a lot of charges, but I was disputing them. And a good lawyer would have pleaded harder and perhaps reduced the sentence, and argued that I tried my best not to reoffend but I kept breaching my AVO because my partner wanted to live with me again…
..
MS. SCOTT: Just correct me if I’m wrong. You’re saying that, if your parents had arranged a better lawyer for you, then you might not be in this situation?
APPLICANT: Perhaps.
The Applicant also claimed that, notwithstanding that he pled guilty to the stalking charge, he had not stalked S as set out in the facts read to the court (or at all) and upon which he was sentenced as set out in [40] above. At the hearing the Applicant’s evidence as to the facts was very different to the facts as read to the court. I asked the Applicant a number of questions about this:[50]
[50] (Transcript at 39)
DEPUTY PRESIDENT:         Again, is this a story that you’ve told anybody else, including the court when you were convicted, in relation to this episode?
APPLICANT:   I didn’t get any chance to speak, Deputy President. Like, everything was done by the lawyers. So all –
DEPUTY PRESIDENT:         Did you tell the lawyers that, in fact, you didn’t stalk her, you didn’t follow her, you were just waiting for her to leave so that you could then go into the police station? Did you tell your lawyers?
APPLICANT:   I wanted to. I wanted to, but I didn’t.
DEPUTY PRESIDENT:         Did you tell your lawyers that?
APPLICANT:   I did tell my second lawyer, but the first lawyer, I told him and he said, ‘We’ll contest that later,’ but I couldn’t pay him. So the Legal Aid lawyer whom I had, they just said, ‘Yes, you should plead,’ and I pled guilty to all my charges.
DEPUTY PRESIDENT:         Did you tell the Legal Aid lawyer that that statement of facts as it’s set out and as the police allege was factually incorrect? Did you tell him that?
APPLICANT:   I should have, but I don’t think I did.
…
DEPUTY PRESIDENT:         Why not?
APPLICANT:   Because he asked me to plead because there was too much evidence against me, yes. And that’s all he could do was like give me a reduced sentence.
DEPUTY PRESIDENT:         You’re an intelligent man. You would know that that was a pretty important fact?
APPLICANT:   I know, yes.
DEPUTY PRESIDENT:         You chose not to tell him?
APPLICANT:   I should have.
DEPUTY PRESIDENT:         Is that because you’ve just made it up now?
APPLICANT:   Not at all, Deputy… Not at all. Like I keep saying, if I had a good lawyer, I probably wouldn’t be in this situation today.
I do not accept the Applicant’s evidence. As noted above, in any event, I am bound by the facts upon which the Applicant was sentenced which are as set out in [40] above. This is, however, an example of the Applicant failing to accept responsibility for his actions. Rather than accepting responsibility, he seeks to blame his lawyer for the position in which he finds himself. In those circumstances little weight can be given to the Applicant’s claims of remorse.
Another example of the Applicant failing to admit responsibility for his actions is his statement in the Personal Circumstances Form in which he claimed that he repeatedly breached the AVO because of a “misinterpretation of the court orders”.[51] Having made that claim, he immediately asserted in that same document that he “takes full responsibility”. In cross-examination the Applicant agreed that he now understands the terms of the AVO. The following exchange then took place:[52]
[51] R1/80.
[52] Transcript at 36-7.
DEPUTY PRESIDENT:         Well, you say you understand that now. You understood that at the time?
APPLICANT:   I did. And then I tried to be on the right side of the law, but, yes, she –
DEPUTY PRESIDENT:         Well, you didn’t. You knew that what you were doing was wrong; was in breach of the AVO?
…
APPLICANT:   I was trying to do the right thing?
DEPUTY PRESIDENT:         You clearly weren’t?
APPLICANT:   I mean it’s like to go to the court or wherever we can to – I know that every minute I spend with her after the violence order was a breach, but it was her decision and I took a risk, and it’s my fault, really, but all I wanted was to not be in breach anymore.
DEPUTY PRESIDENT:         Don’t you do that by not breaching it?
APPLICANT:   Yes. I should have only contacted her through a lawyer, and that’s all. But I didn’t.
…
MS SCOTT: So it wasn’t a misinterpretation, it was just that you thought you could get around it?
APPLICANT:   Eventually, yes.
DEPUTY PRESIDENT:         No, at the time you were breaching it?
APPLICANT:   At the time I was breaching it, I was always hoping that…
…
DEPUTY PRESIDENT:         At the time you were breaching it …you knew you were breaching it?
APPLICANT:   I knew I was in breach.
…
DEPUTY PRESIDENT:         It wasn’t a misinterpretation?
APPLICANT:   I knew and – of course, but my hope was that we would –
DEPUTY PRESIDENT:         I’m not asking you about your hope. Your statement here at page 80 in front of you is saying that you breached it because you’d misinterpreted. That’s simply false, isn’t it? You knew exactly what they meant. You chose to breach them. You may have hoped… at some later point …to change them. At the time you breached them, you knew that you were breaching them?
APPLICANT:   At that time I knew, of course.

In a similar vein, on 21 April 2022, the Applicant advised the corrections officer, in the same context in which he claimed remorse and regret, that he did not believe that he should have been imprisoned.[53] The lack of any real acceptance and remorse noted by Magistrate Walsh when sentencing the Applicant (see [43] above) appears still to be present.
[53] R2/65.
It is my assessment that the Applicant has not undertaken sufficient relevant rehabilitative programs. Whether that is because he has not had access to such programs in prison or immigration detention is a different issue. His evidence at the hearing was that he had made no effort to ascertain what courses might be available to him if he were to be released back into the community (see [58] above). Whatever the reason, the Applicant has not undertaken relevant programs which could be accepted as reducing his risk of offending as he has in the past to any significant degree. I am not satisfied that his attitude towards his offending has materially changed from when he offended. Despite his repeated claims that he accepted responsibility for his actions, that is clearly not the case. Even at the hearing he continued to demonstrate a pattern of claiming remorse and acceptance of responsibility while seeking to blame others (S, his parents, his legal aid lawyers, the custodial officers).
While the New South Wales Department of Corrective Services Offender Case Plan noted the Applicant as being “supervised as T2/Low risk” (see [54] above), based on the Applicant having failed to complete any rehabilitative programs to address the causes of his offending and based on his current attitude of failing to take responsibility for his offending and continuing to blame others, I assess the Applicant to be a low to medium risk of re-offending.
The harm that would be caused should the Applicant engage in the offending behaviour that he has in the past is serious (see [53] above). This, coupled with my assessment of the risk of the Applicant re-offending being low to medium causes me to consider that this first primary consideration, the protection of the Australian community, weighs moderately to heavily against revocation of the cancellation of the Applicant’s visa.
Second primary consideration: Family violence committed by the non-citizen (para 8.2)
Paragraph 8.2 of Direction 99 provides:
(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2) This consideration is relevant in circumstances where:
a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3) In considering the seriousness of the family violence engaged in by the noncitizen, the following factors must be considered where relevant:
a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non citizen's migration status, should the non- citizen engage in further acts of family violence.
Paragraph 4(1) of Direction 99 relevantly defines family violence as follows:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
a) an assault; or
b) a sexual assault or other sexually abusive behaviour; or
c) stalking; or
d) repeated derogatory taunts; or
e) intentionally damaging or destroying property;
...
(Original emphasis)
Member of a person’s family is defined in para 4(1) of Direction 99 as follows:
member of person’s family, for the purpose of the definition of the definition of family violence, includes a person who has, or has had, an intimate personal relationship with the relevant person.
(Original emphasis)
As the Minister contended in his SFIC, the Applicant’s criminal record is almost entirely comprised of family violence related offences, be it a substantive offence or a breach of an AVO imposed for family violence related conduct. More particularly, the Applicant’s three assaults, intentional destruction of property and stalking were all committed against S and fall within the definition of family violence in para 4 of Direction 99 (see [74] above).
The Minister’s SFIC refers to cases in which the Tribunal has expressed its abhorrence for family violence and the harm caused thereby[54] and to Magistrate Walsh’s observation that family violence is a “scourge on society” and “anathema of a civilised society”(sic) (see [40] above). I agree with those characterisations of family violence.
[54] Soames and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1955 at [106]; Nyemah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2107 at [56]; ZFZM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1633 at [114]; XNBW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 441 at [219].
The Applicant, in my assessment, has very limited remorse for his offending, including the family violence, and continues to seek to minimise the offending and his responsibility for the offending including by blaming the victim (see [65] above). All acts of family violence are unacceptable and are to be viewed very seriously, however, in the present case the degree of physicality, and therefore injury caused, was relatively limited. Having said that, obviously the harm caused could have been significantly greater had the Applicant been more accurate when threw the pot-plant at S from the balcony. I also note that while there were a number of acts of family violence, they were committed over a relatively short period when, according to the Applicant, he was stressed and influenced by drugs and/or alcohol.
Taking all of those factors into account, this primary consideration weighs moderately to heavily against the revocation of the cancellation of the Applicant’s Bridging C visa.
Third primary consideration: The strength nature and duration of ties to Australia (para 8.3)
Paragraph 8.3 of Direction 99 provides:
(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) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens. Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers 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) The length of time the non-citizen has resided in the Australian community, noting that:
(i)Considerable weight should be given to the fact that a non- citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
(ii) more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii) less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Applicant’s statement A1 does not refer to the Applicant’s ties to Australia other than his now-past relationship with S. The Personal Circumstances Form completed by the Applicant identified the Applicant as having two cousins living in Australia whom he identified as being Australian citizens.[55] Neither of those cousins provided a statement. The Personal Circumstances Form also identified the Applicant as having three nephews/nieces in Australia. At the hearing the Applicant’s evidence was that those children are the children of one of his cousins which does not make them a niece or a nephew. It also emerged at the hearing that the Applicant had lived with one of his cousins who was the parent of two of the children.[56]
[55] R1/79.
[56] Transcript at 21.
The only person to provide a statement in support of the Applicant was Dr Mazunder.[57] While the Applicant referred to Dr Mazunder as his uncle, he is not his uncle, but rather a friend of the Applicant’s father. Dr Mazunder’s statement stated that:
I have known Satyajit since he was little. I am close to his father Dr. Shyamal Mahata who was my friend since we were little. I came to know Satyajit more intimately when he came to Australia in 2013 to study for his Bachelor's degree. Since then I have looked after him as a nephew and have welcomed him to our family.
[57] A2.
Other than referring to the Applicant as having studied in Australia and supported himself, Dr Mazunder’s statement does not address the Applicant’s ties to Australia.
The Applicant’s Personal Circumstances Form identified the Applicant as having been employed in various jobs in the fast food, petroleum retailing and moving industries between 2013 and 2019. He also held a job as a “web developer” in 2019.[58]
[58] R1/81.
Asked in the Personal Circumstances Form to list positive contributions that he has made to Australia, the Applicant stated that, while studying, he had volunteered “for several cultural activities” as well as maintaining employment.[59]
[59] R1/82.
Asked in the Personal Circumstances Form to describe the impact of a negative s 501 decision on family members, the Applicant said that they would be “devastated”.[60] I asked the Applicant about that claim at the hearing:[61]
[60] R1/79.
[61] Transcript at 16.
DEPUTY PRESIDENT:         Describe to me how they would be devastated.
APPLICANT:   Well, maybe I used a strong word, but they would be disappointed because I was always there with them and they could count on me to be there, support them however I needed.
DEPUTY PRESIDENT:         How did you support them?
APPLICANT:   Just being there, you know, as a family, and looking after the kids were a bit busy with something or the other.
…
DEPUTY PRESIDENT:         So ‘devastated’, you now agree, is not a correct description?
APPLICANT:   I mean, it’s hard to say. I mean, time has passed and they have come to accept, but at the time they were shocked to know that I was in jail and…
The Applicant confirmed that none of his family would be financially impacted if he were forced to leave Australia.[62] He also confirmed that none of his family members or Dr Mazunder visited him while he was in prison or immigration detention. He spoke to Dr Mazunder and his cousins by telephone while he was in prison.
[62] Transcript at 16.
The Applicant has no “immediate family” in Australia other than two cousins if they were to be considered immediate family. Again, I note that neither of his cousins provided any letter or statement of support so his closeness to them and the impact of his not remaining in Australia is questionable, or at least, difficult to assess. Dr Mazunder is not a member of the Applicant’s family and while he provided a statement, that statement does not address what impact the Applicant being removed from Australia would have on him.
The evidence presented by the Applicant does not, in my view, establish that there would be any impact on any member of the Applicant’s family or on Dr Mazunder or any members of the broader Australian community if there were to be a decision not to revoke the cancellation of the Applicant’s visa.
In considering the factors identified in para 8.3(4), the Applicant only arrived in Australia in July 2013, as the holder of a Student visa, and has remained in Australia since then on 10 other temporary and bridging visas.[63] All of those visas are subject to the genuine temporary entrant (GTE) requirement that the visas are temporary and the holder “intends genuinely to stay in Australia temporarily”. I asked the Applicant about this at the hearing:
[63] R1/121.
DEPUTY PRESIDENT:         The visa that was cancelled was a temporary visa, wasn’t it?
APPLICANT:   It was.
DEPUTY PRESIDENT:         And that visa has now expired?
APPLICANT:   Yes.
DEPUTY PRESIDENT:         So the reality is, you would’ve been heading back to India in any event, wouldn’t you?
APPLICANT:   I would have applied for another visa.
DEPUTY PRESIDENT:         But when you came into Australia, you came for what purpose?
APPLICANT:   I came as a student.
DEPUTY PRESIDENT:         And you’ve completed those studies?
APPLICANT:   I have.
DEPUTY PRESIDENT:         So it would’ve always been, would it not, the expectation of your family, or your cousins, that you would’ve gone back to India in any event?
APPLICANT:   My expectation was that I would secure a permanent job here and reside here. But as I was under the Bridging visa, I couldn’t get a job. But I would have studied Master’s here eventually?
…
DEPUTY PRESIDENT:         At the time that you applied for you Student (Temporary) visa, did you disclose that it was your intention to stay permanently?
APPLICANT:   I don’t think I did. I just stated that I will see how we go.
…
DEPUTY PRESIDENT:         At the time you applied for you temporary visa, you appreciated, didn’t you, that it was a temporary visa?
APPLICANT:   M’mm.
DEPUTY PRESIDENT:         And that that would only entitle you to stay for a limited period?
APPLICANT:   I appreciate it, yes. Yes.
In effect, the Applicant’s only significant link to the Australian community is the fact that he studied in Australia as the holder of a series of temporary visas, visas that would, to the Applicant’s knowledge, expire once he completed his studies. Under all of the visas held by the Applicant, he was destined to return to India.
This consideration requires the decision-maker to consider “the impact of the decision” (para 8.3(1)). As noted above, the decision that I make will have no immediate practical impact. The visa of which the Applicant seeks “reinstatement” lapsed over a year ago. A decision in favour of the Applicant will not result in his being released back into the community (see [32] above). He will still be liable to removal in accordance with s 198 and detention under s 189 of the Act. The “impact” therefore to be considered is limited to the Applicant being barred, or not being barred in the event of a favourable decision, from applying for certain types of visa as identified in [32] above.
Even if the Applicant’s cousins were to be treated as immediate family members, the decision will not have any impact on them nor would it have any relevant impact on the children of the Applicant’s cousins. There is little to no evidence that the Applicant has substantial or meaningful ties to the Australia community or to Australian citizens. He did not spend his formative years in Australia and has spent a relatively short period in Australia always on temporary visas.
The consideration of the strength, nature and duration of ties to Australia, does not weigh in favour of revocation of the cancellation of the Applicant’s Bridging C visa.
Fourth Primary Consideration: Best interests of minor children in Australia affected by the decision (para 8.4)
Paragraph 8.4 of Direction 99 provides:
(1) Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant has no children. He did not identify any children as being relevant to this consideration in his Personal Circumstances Form.[64] It was only at the hearing that it emerged that the three children who he had described as nephews and nieces were not nephews and nieces but rather children of his cousins and that he had lived for a brief period with one of those cousins.[65] I asked the Applicant whether he had any relationship with these children. His answer was:
I mean, I sometimes video call them, but, yes, prior to being in detention, I was, yes, visiting them frequently. But ever since jail, I’m not, like…
[64] R1/75.
[65] Transcript at 22.

I also asked what role the Applicant had played in the lives of the children, in particular the two with whom he briefly lived. I asked whether, for instance, he took them to school:[66]
[66] Transcript at 13.
DEPUTY PRESIDENT:         So you’d see the children then. Other than seeing them, what role did you play? Did you take them to school?
APPLICANT:   No, their dad would take them, usually.
DEPUTY PRESIDENT:         Did you provide any financial support to them?
APPLICANT:   I mean, I would buy them candy every now and then and that kind of stuff, but, no, their parents took – looked after them.
…
DEPUTY PRESIDENT:         Do your cousins look after the children well?
APPLICANT:   They do.
DEPUTY PRESIDENT:         So they provide all the parenting roles that you would expect?
APPLICANT:   Yes.
The Applicant’s contact with these children since his imprisonment and detention has been minimal. The only contact has been via video or telephone if, when speaking to his cousins, the children happened to be present.[67]
[67] Transcript at 14.
I am satisfied that the Applicant has no meaningful relationship with the three children of his cousins and that a decision adverse to the Applicant would have no impact on those children. Applying the criteria set out in paras 8.4(4)(a)-(g), there is nothing to establish or even suggest, that the best interests of these children would be served by a decision to revoke the cancellation of the Applicant’s Bridging C visa.
This consideration does not weigh in favour of revocation of the cancellation of the Applicant’s Bridging C visa.
Fifth primary consideration: Expectations of the Australian community (para 8.5)
Paragraph 8.5 of Direction 99 relevantly provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
...
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
...
(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.
The Minister contended that the Applicant has engaged in repeated incidents of family violence. , The Applicant had no regard to the protective order being in place. He breached the order on six occasions within a period of three months. According to the Minister, the Applicant has demonstrated a belligerent attitude toward authority and conduct of a kind which the Australian community does not tolerate.
The Minster submitted that this consideration weighs significantly against the visa cancellation being revoked.
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated in para 8.5 of Direction 99, without independently assessing the community’s expectations in the particular case. The principles set out in para 5.2 of Direction 99, as set out in [22] above, are also relevant to this consideration.
In FYBR v Minister for Home Affairs,[68] the Full Court of the Federal Court of Australia considered the operation of the corresponding provisions in Ministerial Direction No 65 (Direction 65), a predecessor to Direction 90 and Direction 99: see [20] above. The relevant provisions of Direction 99 contain generally similar wording to the corresponding provisions in Direction 65. Some provisions, in particular those dealing with the expectations of the Australian community (para 8.5(1)) were expanded by Direction 90 and subsequently incorporated into Direction 99.
[68] [2019] FCAFC 185; (2019) 272 FCR 454.
In Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[69] I summarised the effect of the Full Court’s judgment in FYBR, as follows:
The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a ‘kind of deeming provision’ – expressing “an expectation deemed by the government to be held by the Australian community” (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]-[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Rehman). See also decisions of the Hon. John Pascoe AC CVO, Deputy President in Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [77]-[78].
[69] [2020] AATA 3953 at [156].
Justice Stewart in FYBR found at [89]-[91]:
It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.
However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.
The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively.
(Emphasis omitted.)
In FYBR Justice Charlesworth observed at [75] and [79]:
Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
...
...The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do. Read as a whole, the reasons of the primary judge should not be understood as suggesting otherwise.
(Emphasis omitted.)
That “narrow view” found by Perry J at first instance in FYBR v Minister for Home Affairs[70] approved by the Full Court in FYBR, is reflected in the amendments to the Ministerial Direction which resulted in the additions in para 8.4(1) of Direction 90 subsequently carried over into para 8.5(1) of Direction 99. Due to the application of the “norm”, as it is now referred to in para 8.5(1), and the deeming operation of the corresponding Direction as found by the Full Court in FYBR, this primary consideration weighs against the revocation of the cancellation of the person’s visa.
[70] [2019] FCA 500.
The operation of this provision was considered by the Full Court in Minister for Immigration, Citizenship and Multicultural Affairs v HSRN.[71] While the Full Court in HSRN was considering Direction 90, the wording of the corresponding provisions in Direction 99 is the same. Relevantly, the Full Court found at [40] and [44]:
It is to be observed that s 499(2A) of the Act, as mentioned, provides that a person or body “must” comply with a direction given under s 499(1) – reference is expressly made to that requirement in para 5.1(4) of Direction No. 90. Also, the Direction provides that the decision-maker “must”, amongst other things, consider the expectations of the Australian Government as expressed in the Direction (para 5.2(4), 5.2(5) and 6 read with 8.4(4)), and that expression of the expectations applies as a “norm” (para 8.4(1)). In that context, “should” in para 8.4(4) is indicative of a requirement that must be followed; it is mandatory. That is because it would be inconsistent to read, for example, para 6 as being mandatory because of its use of the word “must”, with the result that the relevant consideration must be taken into account, but reading para 8.4(4) as merely offering guidance thereby permitting the decision-maker to arrive at its own view or assessment of what the expectations of the Australian community are. It is to be noted that one of the meanings of “should” is to convey duty or obligation rather than merely guidance: Oxford English Dictionary online version, “shall” (meaning no. 18.a). Reading “should” as indicating only guidance would also be inconsistent with what was held in FYBR, and the acceptance by the Court in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6] that a failure to comply with the relevant Direction’s express requirements as to the conditions to be brought into account and the manner in which those considerations were to be weighed in deciding whether to revoke a visa cancellation would be jurisdictional.
...
Leaving aside whether the Tribunal can permissibly have independent regard to community expectations as assessed by it, which must be considered at least doubtful given the Direction’s express provisions with regard to that subject which can be expected to cover the field, the submission fails on the facts. That is because the Tribunal did not take account of its own assessment of community expectations “outside the prism of para 8.4(4)”. On the contrary, it made its own assessment of community expectations expressly within the context of its consideration of para 8.4. That is a clear error.
[71] [2023] FCAFC 68.
The application of the “norm” in para 8.5(1) of Direction 99 means that this primary consideration weighs against revocation of the cancellation of the Applicant’s Bridging C visa. I must, however, determine the weight that should be given to this consideration. Some guidance in this regard is provided by para 8.5(2) of Direction 99 (see [102] above) which provides that the Australian community expects that the Australian Government can, and should, refuse entry to non-citizens if they raise serious character concerns through conduct, in Australia or elsewhere, of the kind listed is sub-paras 8.5(2)(a)–(f) of Direction 99. The Applicant’s acts of family violence come within the category of conduct described in para 8.5(2)(a).
While the Applicant’s criminal record is not particularly extensive, the nature of his offending is such that I agree with the Minister’s assessment of this consideration. I am also guided by the principle set out in para 5.2(4) of Direction 99 that “Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa” (emphasis added) (see [22] above).
For the above reasons I find that the consideration of the expectations of the Australian community weighs heavily against the revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
Paragraph 9 of Direction 99 sets out the “Other considerations” to be taken into account as follows:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) Legal consequence of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests
Legal consequences of decision under section 501 or 501CA (para 9.1)
The Minister pointed to the assertion in the Applicant’s Personal Circumstances Form that he had:[72]
… had a death threat coming from a political family with a lot of influence. This came shortly after my fallout with a member of that family residing here who had to return home after robbing me at knife-point and inflicting a wound.
[72] Respondent SFIC at para [71].
The Minister accepted that this bare claim could be considered as a claim which may give rise to complementary protection (and non-refoulement) obligations but pointed out that the claim is without evidence and nothing more than a bare assertion. I agree with that assessment that the Applicant’s claim is little more than a bare assertion made without any evidentiary support.
The Applicant’s evidence in relation to the claimed threat was unconvincing. He claimed that the threats arise out of an assault on him following which, he says, threats were made by the assailant against him with the intent of discouraging the Applicant giving evidence in potential criminal proceedings against the assailant. He said that these threats had been made by text in or about August or September 2021.[73] He said that he did not retain copies of the threatening text messages and did not report the threats to anyone.[74] His claim was that this person (or his associates) is waiting for him to return to India.[75] He claimed that he knew that this person was waiting for him in India because the person had harassed his parents. In this regard I note the Applicant’s earlier evidence that he claimed to have had no relationship with his parents for several years. His evidence in relation to this person harassing his parents in India was:[76]
[73] Transcript at 29.
[74] Transcript at 11-2.
[75] Transcript at 29.
[76] Transcript at 29-30.
DEPUTY PRESIDENT:         So you know that he’s waiting for you?
APPLICANT:   Yes. Yes, for sure.
DEPUTY PRESIDENT:         How do you know that? The last contact you had with him was in August 2021?
APPLICANT:   My parents mentioned that he’s harassed them once or twice.
DEPUTY PRESIDENT:         Well, have you said that before… Have you told us that before? Was that the first we’ve heard of that?
APPLICANT:   Well, yes.
DEPUTY PRESIDENT:         I must say, it’s not a particularly credible story. A person makes, apparently, a threat against you in August ‘21, and you’re now saying he’s waiting,.... hanging outside your parents’ house?
APPLICANT:   They harassed them, yes. So, like, three - - -
DEPUTY PRESIDENT:         You haven’t mentioned that before, have you?
APPLICANT:   They harassed my parents, but not me.
DEPUTY PRESIDENT:         No. Mr Mahata, listen …You have not mentioned, you have not claimed before, that this person is currently harassing your parents. Is that correct?
APPLICANT:   Not currently, but in the past.
I have a great deal of difficulty accepting the Applicant’s story.
The Minister contended that the appropriate course is for the Applicant to apply for a protection visa, and that the assessment of any protection and non-refoulment claims can be undertaken in the context of that assessment (when, it is expected, the Applicant might adduce some evidence). The Minister therefore contended that the Tribunal should proceed as suggested in para 9.1.2(2) of Direction 99 which applies where the non-citizen is not covered by a protection finding. That paragraph relevantly provides:
…where it is open to the non-citizen to apply for a protection visa, it is not necessary 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 and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
As noted above, there is, presently a paucity of evidence to support the Applicant’s claim that there is a real risk that he faces harm if returned to India, and it would, in my view be inappropriate for me to try to make an assessment of that issue in the present proceedings. As envisaged by para 9.1.2(2), the appropriate course is for the Applicant to apply for a protection visa through which process that Applicant can put on evidence and have his claims fully assessed. Accordingly, while I note the claims made by the Applicant, I make no finding in relation to whether the Applicant is owed any protection obligations.
As has been mentioned in several places above, even if I were to substitute a decision revoking the cancellation of the Applicant’s visa, that would not result in the Applicant being released from immigration detention or not being liable to removal in accordance with s 198 of the Act. The indirect legal consequences of a decision under s 501CA(4) of the Act are as set out in [32] above.
The legal consequences are indirect and, in any event, subject to the Applicant wishing to apply in the future for any visa which he would be barred from applying for absent a positive decision. Accordingly, this consideration does weigh in favour of revoking the cancellation of the Bridging C visa, however, only very minor weight can be given to it because of the very limited consequences and the contingent nature of those consequences.
Extent of impediments if removed (para 9.2)

Paragraph 9.2 of Direction 99 provides:
(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.
On one view this consideration is not relevant given that the decision that I make will have no impact on whether the Applicant is returned to India or not. I note, however, that both the Applicant and the Minister made submissions relevant to this consideration.
In his statement A1, the Applicant claimed that:
As for returning to India, there are some significant factors preventing me from going back. I cannot reside with my parents who have disowned me. Even if I were to return to them, there is an old acquaintance of mine who knows their address and has issued death threats to me. With that out of the question, I have inquired and found the support provided by the Indian Government to returning nationals without any form of identification is abysmal. I would be homeless for a long period until they can issue the necessary documents to seek help. Within that time I would simply perish, not having anywhere else to go.
In the Personal Circumstances Form the Applicant referred to the threat, this time describing it as a “threat coming from a political family with a lot of influence” following his “fallout with a member of that family”,[77] a reference to the person who assaulted him in Australia and then fled Australia to India, according to the Applicant, on a “forged passport”.[78]
[77] T1/83.
[78] Transcript at 10.
The Personal Circumstances Form also asserted that, as the Applicant has not been in India in nine years, he would struggle to assimilate and has no contacts in India to support him.[79]
[79] T1/83.
The Minister’s counsel in closing submissions summarised the Applicant is well-educated, as having worked in various areas of employment while in Australia and as having proven himself to be resourceful when coming to Australia as a young adult in establishing social links and providing for himself. I agree with that summary. This is confirmed by Dr Mazunder’s statement.[80]
[80] A2.
The relevant consideration is whether, taking into account the considerations identified in sub-paras 9.2(1)(a), (b) and (c) and anything else raised by the Applicant, the Applicant would face an impediment (or impediments) in establishing and maintaining basic living standards in the context of the basic living standards that other citizens of India enjoy. The test is not whether he would be worse off or enjoy a lower living standard than he would if he were allowed to stay in Australia.
The Applicant has no disclosed physical impediments to his establishing himself in India and would appear to have transferrable skills which would enable him to find employment to support himself. There are no language or cultural barriers and there are no obvious physical impediments to the Applicant establishing himself in India. As noted earlier, the visas that the Applicant held were all temporary. He was, provided he complied with the GTE requirement (see [91] above), always going to have to return to India. That requirement existed independently of the cancellation of his Bridging C visa.
I accept that there may be some emotional stress caused by the Applicant returning to India, however, that in my view is not sufficient to be considered an impediment to the Applicant establishing himself and maintaining basic living standards generally available to other citizens of India. This consideration does not weigh in favour of revoking the cancellation of the Applicant’s Bridging C visa.
Impact on victims (para 9.3)
Paragraph 9.3 of Direction 99 provides:
Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The Minister’s SFIC, correctly, contended that there is no information before the Tribunal in relation to the impact on the victim. The Applicant made no submission in relation to this consideration.
Insofar as a consideration broader than the impact on victims is required by para 9.3(1), the possible impact of the Applicant being permitted to stay (i.e. a decision to revoke the cancellation) has been dealt with under the first primary consideration, the protection of the Australian community. The impact of the Applicant’s removal (i.e. a decision not to revoke) is also considered in the primary consideration of the strength, nature and duration of the Applicant’s ties to the Australian community under para 8.3 of Direction 99 and in considering the best interests of minor children under para 8.4. Insofar as the impact on those members of the Australian community is to be considered, I do so under those considerations.
This consideration is neutral.
Impact on Australian business interests (para 9.4)
Neither party made a submission on this consideration. I find that it is not relevant in this case.
THE WEIGHING EXERCISE
Direction 99 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 99 sets out the way in which the relevant considerations are to be taken into account (see [24] above).
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under earlier Ministerial Directions issued under s 499 of the Act (see [20] above), the same considerations apply to the exercise required by Direction 99 which is materially in the same terms to those earlier Ministerial Directions. I am guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection[81] and the Full Court judgment in Minister for Home Affairs v HSKJ.[82] See also XRGY and Minister for Immigration, Citizenship, and Multicultural Affairs[83] for analysis of those cases.
[81] [2018] FCA 594.
[82] [2018] FCAFC 217; [2018] FCAFC 217; 266 FCR 591.
[83] [2023] AATA 755 at [182]-[183].
Most recently the Full Court of the Federal Court considered the operation of Direction 90 (relevantly materially the same as Direction 99) in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs.[84] At [35] the Full Court described the process as follows:
The balancing process is directed to determining whether there is “another reason” why the visa cancellation should be revoked. It requires an identification of the matters that may constitute “another reason” and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute “another reason” capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.
[84] [2023] FCAFC 138.
In criticising the Tribunal’s reasons, the Full Court at [38] found:
...They do not disclose that there was any process by which the Tribunal grappled with the competing considerations, each of which had been ascribed a different descriptor of weight and some of which had the status of being “primary” considerations and others not, in order to bring them to bear in forming a state of satisfaction as to whether there was “another reason” to revoke the cancellation. The statutory task is not fulfilled by ascribing a descriptor of weight, such as “strong”, “significant”, “considerable” or “moderate” (in favour of or against revocation) to the different considerations, primary and other, and then stating a conclusion as if that conclusion was made inevitable by the application of a mathematical formula.
And at [43]:
... the Tribunal recognised in paragraph [113] that it was required to weigh “all the Considerations” (emphasis added), and because it had expressly gone through the process of considering each of the “other considerations in turn”, as explained above, it cannot be concluded that the Tribunal failed to consider the “other considerations”. However, there is nothing in the concluding section of the Tribunal’s reasons, or indeed anywhere, which reveals any process of balancing and evaluation... Nor is there anything which demonstrates that in reaching its ultimate conclusion, the Tribunal brought to bear its assessment of the weight of the various “other considerations”. After summarising, and rephrasing, its earlier ascription of descriptors of weight to each of the primary considerations, the Tribunal then simply concluded in paragraphs [114] and [115] by use of the words “therefore” and “consequently” that the visa cancellation should not be revoked. Such a conclusion does not inevitably or necessarily follow from those unexplained, un-balanced and un-weighed descriptors of weight; it may be that such a conclusion is justified by what preceded it but it is not apparent that the Tribunal undertook the required process of evaluation in order to reach its decision. It is not even apparent that the Tribunal considered that the weight of all the primary considerations were compelling against revocation of the cancellation of the visa, since it placed “significant weight” on one of those considerations, the interests of minor children, as favouring revocation.
And at [44]:
...What it did, on the face of its reasons, is ascribe weight to the various considerations having considered each in isolation and then express a conclusion without demonstrating that it actually weighed the various considerations against each other and undertook a proper evaluation of whether there was indeed “another reason” why the cancellation should be revoked.
What I understand the Full Court to be saying is that giving a weight to each consideration by ascribing a particular quantitative or qualitative adjective and then stating a conclusion without explaining how the conclusion flows from or arises out of a described process of assessing the weight of each consideration against each other consideration, is not discharging the statutory function. Applying those principles to the case of the exercise of being “satisfied ... that there is another reason why the original decision should be revoked” (s 501CA(4)(b)(ii)), I take the Full Court to be directing the decision-maker to give appropriate weight to each relevant consideration, explain why such weight is given to the consideration and then, through a described, logical process, compare and balance all of the considerations to determine whether there is another reason why the original decision should be revoked.
Following the above-described process, I have ascribed a weight to each of the relevant considerations under Direction 99 and explained the basis upon which I have assessed the weight to be given to each consideration. I now compare and balance all of the considerations to determine whether I am satisfied that there is another reason why the original decision should be revoked.
Following the direction provided by the above cases, I find that the first primary consideration, the protection of the Australian community, weighs moderately to heavily against revocation of the cancellation of the Applicant’s visa.
I find that the second primary consideration, family violence committed by the Applicant, weighs moderately to heavily against the revocation of the cancellation of the Applicant’s Bridging C visa.
The third primary consideration, the strength, nature and duration of the Applicant’s ties to Australia, does not weigh in favour of revocation of the cancellation of the Applicant’s Bridging C visa.
The fourth primary consideration, the best interests of minor children in Australia affected by the decision, does not weigh in favour of revocation of the cancellation of the Applicant’s visa.
I find that the fifth primary consideration, the expectations of the Australian community, weighs heavily against the revocation of the cancellation of the Applicant’s visa.
In relation to the “other considerations” identified in Direction 99, I find that the consideration of the legal consequences of the decision does weigh in favour of revoking the cancellation of the Bridging C visa, however, only very minor weight can be given to it for the reasons set out in [121] above.
The consideration of the extent of impediments if removed does not weigh in favour of revoking the cancellation of the Applicant’s Bridging C visa.
The remaining “other considerations” are not relevant or are neutral.
I am mindful that para 7(2) of Direction 99 states that primary considerations should generally be given greater weight than the other considerations (see [24] above). Nothing has been presented which would indicate that that general principle should not apply in the present case. Having weighed the considerations in favour of revoking the decision to cancel that Applicant’s visa and those against revoking the decision to cancel the Applicant’s visa, I find that the considerations against revoking the decision to cancel the Applicant’s visa, in particular the first, second and fifth primary considerations, significantly and clearly outweigh those weighing in favour of the revocation of the cancellation of the Applicant’s Bridging C visa. Accordingly, I find that there is not another reason why the original decision should be revoked
DECISION
The decision of the delegate of the Minister dated 4 July 2023 not to revoke, under s 501CA(4) of the Migration Act 1958, the cancellation of the Applicant’s Class WC Subclass 030 Bridging C visa is affirmed.

I certify that the preceding 153 (one hundred and fifty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

....................[Sgd].................................................
Associate
Dated: 27 September 2023

Date of hearing: 13 September 2023

Solicitors for the Applicant: Self-represented

Solicitors for the Respondent: Ms M Scott, Australian Government Solicitor

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(on average, 1 woman per week dies as a result of domestic/family violence)

It is also important to keep in mind that a conclusion that a former visa-holder poses an unacceptable risk of harm does not mean that the decision-maker must refuse to revoke cancellation of a visa.

Date of conviction	Court	Offence	Result
23/01/2020	Bankstown Local Court	Drive motor vehicle while licence suspended	Conditional Release Order W/O Conviction: 12 Months
07/03/2022	Sutherland Local Court	Contravene prohibition/restriction in AVO (Domestic)	S10A Conviction with no other penalty
27/04/2022	Bankstown Local Court	Stalk/intimidate intend fear physical etc harm (domestic)-T2	18 months imprisonment (aggregate)
27/04/2022	Bankstown Local Court	Contravene prohibition/restriction in AVO (Domestic)
27/04/2022	Bankstown Local Court	Contravene prohibition/restriction in AVO (Domestic)
27/04/2022	Bankstown Local Court	Contravene prohibition/restriction in AVO (Domestic)
27/04/2022	Bankstown Local Court	Common assault (DV)-T2
27/04/2022	Bankstown Local Court	Assault occasioning actual bodily harm (DV)-T2
27/04/2022	Bankstown Local Court	Destroy or damage property (DV)

Date of hearing:	13 September 2023
Solicitors for the Applicant:	Self-represented
Solicitors for the Respondent:	Ms M Scott, Australian Government Solicitor