Malla and Minister for Home Affairs (Migration)

Malla and Minister for Home Affairs (Migration) [2019] AATA 4369 (25 October 2019)
Division:GENERAL DIVISION
File Number: 2019/4709
Re:Dipendra Malla
APPLICANT

AndMinister for Home Affairs
RESPONDENT

Decision

Tribunal:Member Tigiilagi Eteuati
Date:25 October 2019
Place:Sydney

The decision under review is set aside and a decision in substitution is made to revoke the decision of 7 December 2018 to cancel the Bridging visa held by the Applicant.
...........................[SGD].............................................
Member Tigiilagi Eteuati

Catchwords
MIGRATION – mandatory cancellation of Applicant’s Bridging visa under s 501(3A) – Applicant failed to pass the character test - whether there is another reason why cancellation decision should be revoked - application of Direction No. 79 – decision under review set aside and a decision substituted revoking the original cancellation decision
Legislation
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs[2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection[2016] FCA 1166
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
LQZW and Minister for Home Affairs (Migration) [2019] AATA 93
Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2015] HCA 15
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION
Member Tigiilagi Eteuati
25 October 2019
background

This is an application by Mr Dipendra Malla (“the Applicant”) for review of a decision made by the delegate of the Minister for Home Affairs (“the Minister” or “the Respondent”) on 31 July 2019 not to revoke, under section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), the cancellation of the Applicant’s Bridging A (Class WA Subclass 010) visa.
The Applicant first arrived in Australia on 14 April 2009 on a Student visa to study for an Advanced Diploma of Accounting. The Applicant ceased studying a few months after he arrived. He met his former partner in November 2009 and they married on 14 January 2011, shortly before their son was born in late January 2011.
On 17 May 2011, the Applicant was convicted of offences including common assault and contravene prohibition/restriction in AVO (Domestic).
On 21 November 2011, the Applicant applied for a New Zealand Citizen Family Relationship (Temporary) (Subclass 461) visa on the basis of his relationship with his former partner.
On 4 June 2012, the Applicant received notice that the Minister intended to consider refusal of that visa application on character grounds.
On 21 June 2012, the Applicant responded to the notice.
On 10 August 2012, a delegate of the Minister decided not to refuse the Applicant’s visa application. The notice containing the decision not to refuse the visa relevantly stated:
“On this occasion, a delegate of the Minister had decided not to exercise the discretion to refuse your visa application under subsection 501(1) of the Act. However you are warned that if you engage in any further conduct that might bring you within the scope of section 501, cancellation of any visa that you hold and/or refusal of any future visa applications may be considered and if so, the fact of this warning may weigh heavily against you.”
The Applicant went on to commit nine further offences between 2015 and 2018.
On 2 February 2017, the Applicant applied for another New Zealand Citizen Family Relationship (Temporary) (Subclass 461) visa. The Applicant was subsequently granted a Bridging A (Class WA, Subclass 010) visa allowing him to remain in the community pending the outcome of the substantive visa application.
On 14 June 2018, the Applicant was convicted of assaults occasioning actual bodily harm and common assault. The Applicant was sentenced to 14 months imprisonment for each offence with a non-parole period of eight months. The Applicant appealed his sentence in the Parramatta District Court but his appeal was unsuccessful.
On 7 December 2018, the Applicant’s Bridging visa was cancelled under section 501(3A) of the Act. On 10 December 2018, the Applicant was transferred from criminal detention to immigration detention.
On 25 December 2018, the Applicant made representations seeking revocation of the mandatory visa cancellation decision.
On 1 August 2019, a delegate of the Minister decided not to revoke the original cancellation decision.
On 5 August 2019, the Applicant applied to the Tribunal for review of the Minister’s delegate’s decision not to revoke the original cancellation decision.
The review application was heard by the Tribunal on 15 October 2019. For the reasons below, the Tribunal has decided to set aside the decision under review and for a decision in substitution to be made revoking the original Bridging visa cancellation decision. The Tribunal considers that this is the preferable decision in this case.
issues
Pursuant to section 501CA(4) of the Act, the Minister may revoke the decision made under section 501(3A) of the Act to cancel the Applicant’s visa. Subsection 501CA(4) provides:
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
The Applicant was invited to make representations to the Minister about revocation of the cancellation of his visa and he made representations in accordance with the invitation. Thus, section 501CA(4)(a) is satisfied in this case.
The two remaining issues are:
(a)Whether the Applicant passes the character test as defined in section 501 of the Act; and
(b)Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Tribunal finds that the Applicant passes the character test or that there is another reason why the decision to cancel the Applicant’s visa should be revoked, the cancellation decision must be revoked.
The Tribunal considers that the meaning of “another reason” in subparagraph 501CA(4)(b)(ii) of the Act is a reason other than that the Applicant passes the character test. The Full Court of the Federal Court has found that there is no residual discretion to be exercised once the Minister (and in this case, the Tribunal) finds that the Applicant passes the character test or there is another reason why the cancellation decision should be revoked. The Full Court has also found that the “reason” in subparagraph 501CA(4)(b)(ii) of the Act does not mean “any reason” but rather the determinative reason for revocation arrived at after a balancing of factors both in favour and against revocation.
In Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66 the Full Court of the Federal Court (Collier J, with whom Logan and Murphy JJ agreed), after citing with approval the reasons of North ACJ at paragraphs [38] and [39] of his decision in Gaspar v Minister for Immigration and Border Protection[2016] FCA 1166, stated at [31] and [32]:
“I agree with this analysis. The primary Judge in these proceedings found, and the parties are ad idem, that s 501CA(4)(b) requires the Minister to revoke the cancellation if he or she is satisfied of relevant requirements. To that extent his Honour held that “may” in s 501CA(4)(b) means “must”. I consider that this is a correct construction of s 501CA(4)(b).
In relation to the question whether s 501CA(4)(b)(ii) contemplates an evaluative process on the part of the Minister, I respectfully adopt the reasoning of North ACJ in Gaspar [2016] FCA 1166 at [38]- [39]. In so doing, I note that the section does not, for example, require the Minister to revoke a cancellation decision if the Minister finds “any” reason why the cancellation decision “could” be revoked”. The requirement that the Minister revoke a cancellation decision if he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against revocation. This is the exercise upon which the Minister clearly embarked in this case. It follows that I respectfully agree with the view formed by his Honour at [52] and [53] of the primary Judgment.”
If the Tribunal is satisfied that the Applicant passes the character test or that there is another reason why the cancellation decision should be revoked, the Tribunal must find in the Applicant’s favour. The appropriate decision in these circumstances would be for the decision refusing to revoke cancellation to be set aside and for a decision in substitution to be made revoking the cancellation decision.
Evidence
The Tribunal has considered all of the evidence permissibly before it including the documents described in section 501G of the Act (“G Documents”), the documents tendered into evidence by the Applicant and marked as exhibits A1 to A12 and the documents tendered into evidence by the Respondent and marked as exhibits R1 and R2. The evidence contained in these documents is discussed throughout these Reasons: see “Annexure 1”. Although the Tribunal has considered all of the relevant material, the Tribunal has not discussed each potentially relevant document in these Reasons. Rather, the Tribunal has referred to the evidence which was considered to be the most relevant to the decision.
The Tribunal is of course aware of the restrictions on the consideration of certain evidence contained in subsections 500(6H) and (6J) of the Act. The Tribunal has not had regard to any evidence provided in support of Applicant’s case which was not provided to the Respondent at least two (2) clear business days prior to the hearing. However, in accordance with the decision of the High Court in Uelese v Minister for Immigration and Border Protection [2015] HCA 15, the Tribunal has considered the evidence of witnesses provided in answer to questions in cross-examination by the Respondent and questions from the Tribunal.
A summary of evidence is provided below from paragraph 46 of these Reasons.
does the Applicant pass the character test?
Subsection 501(6) relevantly provides:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
Subsection 501(7) relevantly provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…
The Applicant will be taken to have a substantial criminal record, and thus not pass the character test, if he has been sentenced to a term of imprisonment of 12 months or more.
Subsection 501(12) of the Act provides that “imprisonment” includes any form of punitive detention in a facility or institution.
Offending history
An Australian Criminal Intelligence Commission (“ACIC”) Criminal History Check for the Applicant dated 2 April 2019 shows the following offences committed by the Applicant:
(a)On 14 June 2018, the Applicant was convicted of the following offences:
(i)common assault (DV), the Applicant was sentenced to 14 months imprisonment with a non-parole period of eight months; and
(ii)assault occasioning actual bodily harm (DV), the Applicant was sentenced to 14 months imprisonment with a non-parole period of eight months.
(b)The Applicant appealed the severity of his sentence and on 13 July 2018, the Applicant’s sentences were confirmed by the Parramatta District Court.
(c)On 30 June 2017, the Applicant was convicted of two counts of assault occasioning actual bodily harm and subjected to an intensive correction order for 12 months for each offence.
(d)On 12 April 2016, the Applicant was convicted of the following offences:
(i)destroy or damage property, the Applicant was fined $300 and made to pay compensation of $1341.60;
(ii)stalk/intimidate intend fear physical etc harm (personal ) and subjected to a community service order for 125 hours; and
(iii)destroy or damage property and fined $300.
(e)On 15 July 2015, the Applicant was convicted of drive motor vehicle during disqualification period, was disqualified from driving for two years and subjected to a 60 hour community service order.
(f)On 16 September 2015, the Applicant was convicted of drive with middle range PCA, was disqualified from driving for 6 months and fined $850.
(g)On 17 May 2011, the Applicant was convicted of the following offences:
(i)failed to appear in accordance with bail undertaking and fined $500;
(ii)common assault (DV) and subjected to a two year good behaviour bond;
(iii)contravene prohibition/restriction in AVO (Domestic), and sentenced to 12 months imprisonment suspended upon entering into a good behaviour bond for 12 months.
(h)On 3 August 2010 the Applicant was convicted of contravene direction or requirement.
The Tribunal is satisfied the Applicant has a substantial criminal record for the purposes of paragraph 501(6)(a) when read with paragraph 501(7)(c) of the Act, as the Applicant was sentenced to a term of imprisonment of at least 12 months.
Consequently, the Tribunal is satisfied that the Applicant does not pass the character test.
Is there Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether there is another reason why the cancellation of the Applicant’s visa should be revoked, the Tribunal must comply with any Directions made by the Minister pursuant to section 499 of the Act. In this case Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) applies. The Direction provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s visa should be revoked.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the primary and other considerations relevant to the individual case.
The relevant considerations in relation to consideration of revocation of a cancellation decision are contained in Part C of the Direction.
Paragraph 13 of the Direction provides for three primary considerations. They are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Paragraph 14 of the Direction provides for other considerations. They include, but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Subparagraphs 8(3) to (5) of the Direction provide:
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 Colvin J stated at [23]:
“… Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non-refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
The Tribunal considers that Colvin J’s assessment regarding the various considerations in Direction 65 apply equally to the considerations in the current Direction (Direction 79).
The principles in paragraph 6.3 of the Direction reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable and are to inform the consideration of each of the primary and other considerations.
The principles in paragraph 6.3 of the Direction provide a framework within which decision-makers should approach their task of deciding whether to revoke the cancellation of a visa. The principles in paragraph 6.3 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)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

In the present case, the Applicant’s Bridging visa was cancelled. Prior to the cancellation of his Bridging visa the Applicant had an application for a Subclass 461 visa which had yet to be determined. The effect of section 501F of the Act was that when the Applicant’s Bridging visa was cancelled the outstanding application for the Subclass 461 visa was taken have been refused. Therefore, if the Applicant is unsuccessful in his application before the Tribunal he would remain an unlawful non-citizen required to be detained, and removed from Australia as soon as reasonably practicable.
If the Applicant is successful before the Tribunal, the deemed decision to refuse his Subclass 461 visa will be taken to have been set aside and that application will remain to be determined. Therefore, if the Applicant is successful before the Tribunal, his Bridging visa will be reinstated and he will be able to remain in the community pending the outcome of his Subclass 461 visa application. If he is successful in that application, he will hold a five-year temporary visa. If he is unsuccessful in that application, his Bridging visa is likely to cease and, in the absence of an application for a further visa or the exercise of Ministerial discretion, he will be detained and liable to be removed from Australia.
The Tribunal notes that it is possible that the Applicant will not meet character criteria for the grant of the Subclass 461 visa. It is also possible that the Applicant will be refused a Subclass 461 visa under section 501 of the Act. The Subclass 461 visa decision maker will not be bound by the Tribunal’s decision in this case.
Summary of evidence
The following is a summary of the evidence. The evidence referred to below includes evidence provided in written material submitted to the Minister’s Department and the Tribunal and evidence given by witnesses at the hearing in response to questions in cross examination and from the Tribunal.
The Applicant
The Applicant gave evidence that he was born and raised by his parents in Nepal. The Applicant indicated that he had witnessed significant domestic violence by his father against his mother while growing up in Nepal.
The Applicant gave evidence that he came to Australia in 2009 on a Student visa. He said that his parents had sold everything to send their children overseas to study.
He said that, when he arrived in Australia, he was studying towards an Advanced Diploma of Accounting. He ceased studying after a few months as he had no money to continue his studies. The Applicant said that he was homeless at the time.
The Applicant indicated that he met his former partner in November 2009 at a house party. He said that they were married on 14 January 2011 and that their son was born in late January 2011. The Applicant indicated that after his son was born he applied for a New Zealand Citizen Family Relationship visa. The Applicant said that he and his wife separated at the end of 2017.
The Applicant indicated that most of his offences were committed while he was drunk and that he had an alcohol problem. He said that he began drinking when he was around 14 years old. The Applicant indicated that he not consumed alcohol since 2017. The Applicant also said that he began using heroin when he was around 14 years old. He said that he, his former partner and son returned to Nepal in 2013 so that he could attend a rehabilitation clinic to cease heroin use. The Applicant indicated that he stop using heroin upon their return to Australia in late 2013.
The Applicant indicated that he took full responsibility for his offending and that he felt very sorry for his victims.
The Applicant said that in addition to his former partner and son, the Applicant had a cousin in Australia and many friends. One friend provided an email to the Tribunal in support of the Applicant.
The Applicant indicated that he was very proud of his son and that the two were very close. The Applicant indicated that he was the primary carer for his son before he was imprisoned. The Applicant indicated that, since his detention, he and his son would speak every evening by telephone or FaceTime. He said that his son would come to visit him around once a fortnight.
The Applicant indicated that his former partner and son were struggling financially since he had been in detention as he had been the primary breadwinner for the family. The Applicant indicated that he had been gainfully employed for most of his time in Australia.
The Applicant said that if his visa remained cancelled, he would return to Nepal but that he and his wife had agreed that their son would not travel to Nepal to live with the Applicant. This was because Nepal is a country which suffers from poverty and corruption and there would be no opportunities for their son in Nepal.
The Applicant said that he was no longer in love with his former partner and that he ceased to be in love with her since around 2013. However, he said that they were still best friends because of their son.
The Applicant said that if he were allowed to remain in Australia that he would not live with his former partner. He said that they would share parenting responsibilities. He said that their son would stay with him when he was not working and would stay with his former partner when he was working. He said that his former partner had offered to help him find accommodation if he is allowed to remain. He said that he could also spend some time with a cousin in Canberra until he found his own place. He also said that his sister and brother who lived in the United States could provide some financial assistance. He said that he was a hard worker and was confident that he would be able to find employment soon after release. The Applicant said that he would also be able to undergo psychiatric or psychological treatment upon his release.
The Applicant said that he would never reoffend as he had now understood that he had mental health issues and alcohol abuse problem. He said that he had undertaken rehabilitation courses in anger management and drug and alcohol abuse. He said that he would never reoffend as he did not want to lose his son.
Details of Offending
The Respondent’s solicitor took the Applicant to a police record of events leading to convictions for common assault (DV) and assault occasioning actual bodily harm (DV) on 14 June 2018.
That report, which was put to the Applicant by the Respondent’s solicitor, indicates that on 6 April 2018 the Applicant’s former partner was visiting the Applicant at the Applicant’s residence. They began to argue about the status of their relationship. The Applicant’s former partner advised the Applicant that she no longer wanted anything to do with him. The Applicant grabbed the top of his former partner’s head and slapped her across the face causing immediate pain. The report indicates that the Applicant closed his fist and punched the victim multiple times in the face. This caused the Applicant’s former partner pain and the Applicant’s former partner sustained red marks and swelling to the lower left eye, swelling on the left side of her forehead and bruising and swelling to the bottom right side of her lip. The report indicates that the Applicant then forced his former partner into his bedroom and took her mobile phone off her. The Applicant’s former partner attempted to leave the bedroom but the Applicant refused to let her leave. Later, the Applicant pushed his former partner into a doorway.
The Applicant pleaded guilty to common assault and assault occasioning actual bodily harm in relation to these events. However, at the hearing the Applicant denied punching his former partner or pushing her into a doorway. He said that he slapped her twice.
The Respondent’s solicitor took the Applicant to a police record of events leading to two convictions for assault occasioning actual bodily harm (DV) on 30 June 2017.
That report, which was put to the Applicant by the Respondent’s solicitor, indicates that on 18 November 2016, the Applicant threw a salt dispenser at a victim, hitting her in the chest. He then picked up a glass cup and threw it at the victim. The glass broke on impact, cutting the skin on the shin of the victim’s leg and causing it to bleed.
A second victim intervened to prevent the Applicant from assaulting the first victim. The Applicant bit the second victim on the bicep. The Applicant punched a third victim to the left side of his face. The third victim put the Applicant in a headlock to restrain him. The Applicant bit the third victim in the left armpit causing immediate pain and bleeding.
The Applicant admitted that this offending occurred but insisted that the victims were not innocent bystanders but rather, were parties to a fight in which he was involved. He said that he was involved in a fight outside where he was being assaulted on the ground. He said that he ran to the kitchen and threw the salt dispenser at the first victim as she was chasing him. He admitted throwing the glass but said that it did not hit a victim but rather that the glass hit the wall or floor and shards of glass hit the victim. The Applicant said that he did not plead guilty to these offences as he believed that he was acting in self-defence.
The Respondent’s solicitor took the Applicant to a police record of events leading to convictions for stalk/intimidate intend fear physical etc harm and to convictions for destroy or damage property on 12 April 2016.
That report, which was put to the Applicant by the Respondent’s solicitor, indicates that on 4 October 2015, the Applicant threw something at a neighbour’s car. The neighbour yelled out the window for the Applicant to mind his car. The Applicant began swearing at the neighbour. The Applicant then punched the neighbour’s vehicle with a closed fist and kicked the car. He then punched the back windscreen of the car twice. The Applicant then began to bang on the neighbour’s door yelling and swearing saying “come out, come out I want to punch you”. The Applicant then retrieved a meat cleaver and began hitting the neighbour’s car with the meat cleaver causing severe damage to the vehicle. The Applicant indicated that the report accurately described what had occurred that evening. The Applicant said that he had been drinking when the incident occurred.
The Respondent’s solicitor took the Applicant to a police record of events leading to convictions for common assault (DV) stalk/intimidate, contravene prohibition/restriction in AVO (Domestic)intend fear physical etc harm and failed to appear in accordance with bail undertaking on 17 May 2011.
That report, which was put to the Applicant by the Respondent’s solicitor, indicates that on 11 December 2009, an Apprehended Violence Order (AVO) was issued against the Applicant. That AVO included the condition that the Applicant must not assault his former partner. On 14 December 2009, the Applicant’s former partner attended a party where the Applicant was present. The Applicant’s former partner was very intoxicated and went to a bedroom to recline. The Applicant entered the bedroom and his former partner yelled at him to leave. Upon doing so, the Applicant threw an empty beer bottle at the wall and shards of the bottle hit the Applicant’s former partner injuring her. The Applicant then grabbed his former partner by the hair and pulled her. The owner of the house asked them to leave. Once outside the Applicant ran towards his former partner and punched her in the face. She collapsed backwards onto the ground. The Applicant ran towards his former partner and kicked her twice in the right side of the body while she lay on the ground. The Applicant agreed with most of the report but he indicated that he never kicked his former partner. The Tribunal notes that this is inconsistent with the Applicant’s admission in a statement dated 23 December 2011 in which he stated that he had kicked his former partner on 14 December 2009. The Tribunal also notes that the Applicant pleaded guilty to the charges relating to the events of 14 December 2009.
The Applicant indicated that he was bailed to attend court in relation to these offences but failed to do so as he was concerned that his visa may be cancelled. It appears that the offence of contravene direction or requirement for which the Applicant was dealt in absentia in August 2010 and the offence of failed to appear in accordance with bail undertaking related to his failure to appear before court. The Applicant was apprehended by police in 2011 and was sentenced on 17 May 2011 for his offences of 14 December 2009.
In addition to the above offences the Applicant also has two traffic related offences of drive with middle range PCA for which he was fined $850 and disqualified from driving for six months and drive motor vehicle during disqualification period for which he was subjected to a community service order for 60 hours and disqualified for driving for two years.
The Psychologist
The Applicant provided the Tribunal with a report prepared by Peter Stoker, a psychologist (“the Psychologist”), regarding the Applicant’s mental health, required treatment and risk of reoffending.
The report indicated that the Psychologist was of the view that the Applicant was suffering from a major depressive disorder and also had some post-traumatic stress disorder symptomology.
The Psychologist indicated that the Applicant had stopped using alcohol since he had been detained and that his alcohol abuse disorder was in remission.
The Psychologist indicated that the Applicant would benefit from an alcohol rehabilitation program as well as a program for perpetrators of domestic violence. The psychologist indicated that the Applicant had some psychological counselling while in immigration detention and that he would benefit from ongoing psychological counselling. The Psychologist also indicated that the Applicant would benefit from referral to a psychiatrist to ascertain his ongoing requirements for psychotropic medication. The report indicated that the Applicant continues have significant depression and anxiety which needed to be treated through psychiatric and psychological intervention.
The Psychologist concluded:
“With appropriate mental health treatment, continued non-usage of alcohol and undertaking a domestic violence program, it is my opinion that this man’s chances of reoffending will be greatly reduced.”
The Psychologist appeared at the hearing before the Tribunal by telephone. At the hearing the Psychologist indicated that if the Applicant returned to a romantic relationship with his former partner, if he resumed consuming alcohol and if he did not undertake treatment he suggested in his report that his risk of reoffending would be reasonably high.
The Psychologist indicated that if the Applicant was no longer in love with his former partner that this would greatly reduce the chances that he would offend against her.
The Psychologist described the dynamic between the Applicant and his wife as toxic and indicated that even if the Applicant ceased using alcohol and engaged in rehabilitation programs, his prognosis in relation to reoffending would not be good if he re-entered into a romantic relationship with his former partner.
The Psychologist indicated that if the Applicant undertook the suggested treatment and was no longer in love with his former partner that, even if he had shared parental responsibility for their son, there was only a low chance that he would reoffend against his former partner.
The Psychologist then indicated that if the Applicant did not love his former partner and undertook all of the recommended treatment that his risk of reoffending would be low. He said that if the Applicant did not love his former partner and did not undertake all of the recommended treatment he would present a medium risk of reoffending. He said that if the Applicant were to re-engage in a romantic relationship with his ex-partner the risk that he would reoffend against her would be high.
The Applicant’s former partner
The Applicant’s former partner provided a statement to the Tribunal and gave evidence at the hearing before the Tribunal. The Applicant’s former partner indicated that the couple met in 2009 and married in January 2011. She indicated that their son was born on 24 January 2011. The Applicant’s former partner indicated that they had been a strong couple. She said that the relationship ended in late 2017.
The Applicant’s former partner described the Applicant has an active, caring and devoted father who had always given attention to their son. She described the Applicant as the rock of their family; the person primarily responsible for providing financial and emotional support for the family. She indicated that the Applicant provided all that the family needed, that he would cook and clean and take their son to school and sporting events. She said that her son has been greatly negatively affected by the Applicant’s absence while he has been detained. She said that she had been struggling to raise her son without the Applicant, as the Applicant had previously been the primary breadwinner for the family and was a primary carer for their son.
The Applicant’s former partner indicated that she had observed great change in the Applicant since he had been detained. She said that whereas he previously been argumentative, he now listens to her and gives good advice. She said that he was very concerned about their son’s well-being. She said that her son looks up to the Applicant as a role model. She said that her son had always been closer to the Applicant then to her; that he was “the Daddy’s son”. She said that their child was the “golden child” to the Applicant and the Applicant and his son used to do everything together. She said that her son was now “broken” as he no longer has his father with him. She said that the Applicant and their son spoke to one another almost every day.
The Applicant’s former partner said that if the Applicant has to return to Nepal she would not allow her son to travel to Nepal to live with the Applicant. She said that the family visited Nepal for a few months in 2013. She said that the living conditions in Nepal were very poor. She said that there was a lot of poverty and problems with the water and power supply there. However she said that she would allow her son to visit the Applicant in Nepal if the Applicant was required to return there.
The Applicant’s former partner indicated that if the Applicant were allowed to remain in Australia she believed that it was in her son’s best interests that the Applicant and her son lived together.
The Applicant’s former partner indicated that, in her view, it was likely that she would re-enter a relationship with the Applicant if he were allowed to remain in Australia. She said that it was likely that she and her son would live with the Applicant if he were allowed to remain in Australia.
The Applicant’s former partner indicated that she had remained with the Applicant despite their difficulties because she loved him. She said that she still loved the Applicant. She said that her parents, brother and sister still loved the Applicant. She said both she and the Applicant had told each other that they did not love each other from time to time but that they had done this out of anger. She said that deep down they love each other.
The Applicant’s son
In addition to the information provided to the Tribunal by the Applicant and his former partner in relation to their child, the Tribunal had before it a handwritten letter from their eight-year-old son which read as follows:
“To Immigration
I am writing this letter to let you know how much my dad Dipendra Malla means to me.
I love my dad because I love him and if I didn’t have him I wont be happy and I can’t do anything without him. I promise he won’t do anything bad because I know him and I’m his son [Applicant son’s name redacted].
What I love about my dad is when he goes through stuff he keeps me out of it and we have memories thats special and my dad also provides me everything I need.
Hes the best dad I know.
If my dad got sent away from me I will feel very miserable and my heart broken. It makes me very sad when I am not with him.
I will be very happy if my dad can stay to look after me. I know he’s done some bad things but he is still my dad and nobody is perfect. He has never hurt me or made me uncomfortable. He always protects me and keeps me safe.
I feel he has changed for the better because I know I am the reason he is fighting for me to stay.
Every time I visit my dad we have a good time. He gives me good advice about my school and my behaviour.
I just wish to have my dad back
Thank you
[Applicant son’s name redacted]”

In addition to the numerous statements by the Applicant and his former partner before the Tribunal, the Tribunal had an email before it dated 1 May 2019 from a friend of the Applicant which stated:
“Dipendra Malla (Ben) was a good person. He was a hard worker who influenced others to motivate with good knowledge of how to approach others at work. He is not only a good hard worker but also a good father to his son, husband and good colleague. He was always good character until he start to feel depressed he changed his ways. But as I have known him he is a good person and as to my knowledge he had lift himself up and he is ready to live a normal life in society.”
primary consideration A: Protection of the australian community from criminal or other serious conduct
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction provides that decision-makers should give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that 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, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
In HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 (“HZCP”), Bromberg J, after discussing the authorities relevant to whether the Tribunal may look behind or impugn the conviction or sentence, summarised the applicable principles as follows at [78]-[79]:
“(1) Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
(2) Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.
The second principle is not applicable here. The conviction in question in this case was a precondition to the decision under s 501(3A) of the Act and the exercise of the power by the Tribunal. The Applicant’s reliance on that principle as articulated at [43] in Ali is therefore misplaced. As Branson J made very clear at [43], that paragraph is only relevant to cases that fall within the second principle described above.”
In LQZW and Minister for Home Affairs (Migration) [2019] AATA 93 (“LQZW”), Deputy President Boyle, after referring to HZCP, stated at [92]:
“…The Tribunal has to accept that he did commit the sexual offences and the Tribunal’s assessment of the likelihood of the Applicant reoffending has to be made on that basis.”
As in HZCP and LQZW, the convictions (and sentences imposed) in question in this case were a precondition to the decision under subsection 501 of the Act and the exercise of the discretion by the Tribunal. In the present case, as in LQZW, the Tribunal has to proceed on the basis that the Applicant did commit the offences for which he was convicted and the essential facts upon which the offences were based. The Tribunal’s assessment of the likelihood of the Applicant reoffending has to be made on that basis.
Thus, the Tribunal accepts the factual basis for the convictions as stated in the Police records or the offending, especially for the offences for which the Applicant pleaded guilty (that appears to be all of the offences except for those for which he was convicted on 30 June 2017). To the extent that the Applicant’s version of events is inconsistent with the Police records, the Tribunal rejects the Applicant’s version and accepts the information contained in the Police records. However, the Tribunal is willing to accept aspects of the Applicant’s evidence in relation to the circumstances surrounding the offences. The Tribunal does not do so in any way to impugn the convictions themselves, but rather to understand the circumstances and context in which the offending occurred.
Thus for example, for the two convictions for assault occasioning actual bodily harm, for which the Applicant pleaded not guilty, the Tribunal accepts the Police record of the events leading to the charges and these were admitted by the Applicant at the hearing. However, the Tribunal is willing to accept that the offences occurred within the context of a fight which took place between the Applicant and two of the victims. The Tribunal does not accept that the Applicant was acting in self-defence because such a finding is inconsistent with the convictions and the material facts upon which the convictions were based.
Other than two traffic related offences in 2015, the Applicant’s offending relates to four incidents. The nature of the Applicant’s has been described above. The first incident involved assaults on the Applicant’s former partner in 2009. The second involved the Applicant acting in a threatening way and damaging his neighbour’s car in 2015. The third involved the Applicant assaulting two victims during a fight at a party in 2016. The fourth involved the Applicant assaulting his former partner during the daytime in 2018. The Applicant was intoxicated on the first three occasions but was not intoxicated on the final occasion.
The Tribunal has also taken into account that the Applicant has committed seven violent offences which the Direction indicates are to be viewed very seriously. A number of his violent crimes have been committed against his former partner, a woman, and the Direction indicates that crimes of a violent nature against women are viewed very seriously regardless of the sentence imposed.
It appears that on the first occasion that the Applicant attacked his former partner, she was very intoxicated and thus vulnerable.
The Applicant has been sentenced to imprisonment on three occasions. The Applicant was sentenced to 12 months imprisonment to be suspended on entering into a good behaviour bond for contravene prohibition/restriction in AVO in May 2011. The Applicant was then sentenced to intensive corrections orders for 12 months in June 2017. The evidence indicates that the Applicant breached the intensive corrections orders. Finally the Applicant was sentenced to 14 months imprisonment with a non-parole period of eight months in June 2018.
It is not clear that the Applicant’s offending indicates that there is a trend of increasing seriousness. His offences against his former partner in 2009 appear to be of similar seriousness to his offences in 2018. It appears that his offences against his former partner are much more serious than his other offences committed in 2015 and 2016.
It is difficult to gauge the cumulative effect of the Applicant’s repeated offending. It is safe to say that there were two appalling attacks on his former partner and that the Applicant injured two others during a fight in 2016. The Applicant also damaged his neighbour’s car and threatened him in 2015.
While the Applicant did not disclose his criminal convictions in an incoming passenger card in 2013, and considers that this was untruthful by the Applicant, the Tribunal does not consider that this contributes significantly to the seriousness of his offending.
The Tribunal has considered that the Applicant was warned in 2012 that any further offending could result in the cancellation of his visa and he went on to commit a number of offences including violent offences.
The Applicant’s offences were not committed while he was in immigration detention, during an escape from immigration detention or while the Applicant was in the community after an escape from immigration detention.
The Tribunal has taken into account that most of the Applicant’s offences, have been linked to alcohol use and that the psychologist considered that he suffers from alcohol use disorder and depression.
The Tribunal finds that the Applicant’s violent conduct, and especially the violent conduct against his former partner, is very serious. Three of the incidents involved appalling violent offences against others. Two of those incidents involved appalling violence against his former partner.
After careful consideration, including consideration of the matters listed in paragraph 13.1.1(1) of the Direction the Tribunal considers that the Applicant’s violent offences are very serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Subparagraph 13.1.2 of the Direction provides that in considering the risk to the Australian community presented by an Applicant, the Tribunal must have regard to the two sub-considerations listed in paragraph 13.1.2(1) of the Direction cumulatively. They are:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
The Tribunal finds that, if the Applicant were to re-engage in criminal conduct similar to his violent conduct, that is, if he were to attack members of the Australian community, it is likely that the nature of the harm to victims would be that they would suffer from violent crime including actual or grievous bodily harm with potential lifelong physical and mental consequences.
The Tribunal considers that the most likely potential victim of any future violent offending by the Applicant is the Applicant’s former partner.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
As mentioned above, the Psychologist suggested that the Applicant engage in treatment including an alcohol rehabilitation program, a program for the perpetrators of domestic violence, ongoing psychological and psychiatric counselling and referral to a psychiatrist to ascertain requirements for psychotropic medication.
At the hearing, the Psychologist identified that being in love with his former partner, or re-entering into a romantic relationship with her, was a significant risk factor to the Applicant reoffending.
At the hearing the Psychologist concluded that, if the Applicant did not love his former partner and undertook all of the recommended treatment, his risk of reoffending would be low. He said that if the Applicant did not love his former partner and did not undertake all of the recommended treatment he would present a medium risk of reoffending. He said that if the Applicant were to re-engage in a romantic relationship with his ex-partner the risk that he would reoffend against her would be high.
The Psychologist indicated that the fact that the Applicant and his wife were likely to see each other regularly as they would be co-parenting their child did not, of itself, increase the risk that the Applicant will reoffend. Rather, that risk would drastically increase only if the Applicant was in love with his former partner or involved in a romantic relationship with her.
As to whether the Applicant is still in love with his former partner or is likely to form a romantic relationship with her, this is difficult to ascertain. The Tribunal notes that the Psychologist was only available to give evidence at the beginning of the hearing and so the Tribunal was required to hear from the Psychologist before the Applicant. The Applicant was in the hearing room when the Psychologist gave evidence. Therefore, it was clear to the Applicant that the psychologist’s view was that, whether or not the Applicant was likely to reoffend depended in large part on whether he was still in love with his former partner and whether he re-entered into a romantic relationship with her.
It is not surprising therefore, that the Applicant indicated during the hearing that he was not in love with his former partner, that they had not been in love since 2013 and that he would not re-enter into a romantic relationship with her or cohabit with her if he were to remain in Australia.
However, the Tribunal does not find the Applicant’s evidence particular convincing in this respect. First, the Psychologist indicated that although the Applicant and his former partner were no longer in a relationship in 2018, when he last offended against her, his offending could be explained by the fact that he was likely to have still been in love with her in 2018 when she told him that she was seeing another man.
Further, there is a case note from the New South Wales Department of Corrective Services, dated 14 June 2018, which states that the Applicant indicated that he wished to pursue a relationship with his former partner if she was open to it.
That is consistent with the documentation which the Applicant provided to the Department in seeking revocation of the cancellation decision in which the Applicant indicates that he is still in a relationship with his partner. In addition, the Applicant’s former partner indicated that deep down she and the Applicant still loved each other and that she foresees that they will re-enter into a romantic relationship. Indeed, the Applicant’s former partner was of the view that if the Applicant remained in Australia he would immediately live with her and their son as a family.
The Tribunal notes that, whether the Applicant lives apart from his former partner or whether they lived together if he is allowed to remain, the Applicant will not have had the chance to undergo any of the suggested treatment. That is, the Applicant will have at least some level of contact with his former partner before he ever receives the treatment that the psychologist deems necessary in order for him not to reoffend.
The Tribunal is also concerned that the Applicant’s continued attempts to downplay the seriousness of his offending against his former partner may tend to suggest that any rehabilitation which the Applicant claims may be limited.
The Tribunal has taken into account that if the Applicant’s Bridging visa is reinstated, that visa will only allow the Applicant to remain in the community for a limited period of time, that is, until the final determination of his substantive visa application. The limited time that the Applicant will spend in the community as the holder of a Bridging visa may limit the opportunity for the Applicant to reoffend while holding the Bridging visa.
The Tribunal has also taken into account the statements made by the Applicant’s former partner, his friend and his son attesting to the Applicant’s good character.
Given that is unclear whether the Applicant still loves his former partner and whether they will recommence a romantic relationship, it is difficult to make an assessment as to the Applicant’s risk of reoffending. The Tribunal has found that the Applicant is very likely to have repeated contact with his former partner immediately upon his release if he is allowed to remain. That is because, regardless of whether they live together, they will co-parent their child. This will mean that the Applicant will have contact with his former partner, the most likely victim of any potential reoffending by the Applicant, before he has had an opportunity to complete the treatment the psychologist considers is necessary to reduce the risk of reoffending.
On the other hand, the Tribunal accepts that the Applicant deeply loves his son and does not want to be permanently separated from him. The Tribunal has also taken into consideration that the Applicant has undertaken anger management and drug and alcohol courses while he has been in prison and that he has undertaken some counselling in immigration detention. As mentioned above, the Tribunal has also considered that if the Applicant’s Bridging visa is reinstated it will only remain until his substantive visa application is determined. It is likely that considerations of the Applicant’s risk to the community will be undertaken in determining whether he is granted the substantive visa. While the Tribunal considers that the risk that the Applicant will reoffend will be heightened once he is in the community but before he has undertaken any recommended treatment, the Tribunal considers that the risk is somewhat reduced by the fact that the Applicant will know that any further offending, especially before his substantive application is determined, will almost certainly result in him being removed from Australia.
Having taken into account all the matters mentioned above, the Tribunal finds that there is a low to moderate risk that the Applicant will reoffend between his release from detention and the determination of his substantive visa application. The Tribunal still considers that this is a real risk.
Conclusion: Primary Consideration A
The Tribunal has found that the Applicant’s violent offences were very serious and that there is a real risk that the Applicant may reoffend if he is released into the community on a Bridging visa. The Tribunal has found that the most likely victim of any future offending is the Applicant’s former partner.
The Tribunal has found that if the Applicant were to re-engage in criminal conduct similar to his violent conduct, that is, if he were to attack members of the Australian community, it is likely that the nature of the harm to victims would be that they would suffer from violent crime including actual or grievous bodily harm with potential lifelong physical and mental consequences.
After giving much thought to this primary consideration, the Tribunal concludes that the protection of the Australian community primary consideration weighs against revocation of the cancellation of the Applicant’s Bridging visa.

The Tribunal attributes moderate weight to the primary consideration of the protection of the Australian community in favour of non-revocation of the Applicant’s Bridging visa.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is, or is not, in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that 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.
Paragraph 13.2(4) of the Direction provides a list of factors which must be considered under this consideration where relevant. These are:
(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 non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has an eight-year-old son in Australia.
The Tribunal accepts that the Applicant has a particularly close relationship with his son and that prior to his detention he, along with his former partner, were the primary caregivers for the child. The Tribunal accepts the Applicant’s former partner’s evidence that the Applicant and his son are very close and that the Applicant considers his son to be his “golden child”. The Tribunal also accepts Applicant’s former partner’s evidence that their child was closer with the Applicant that he was with her prior to his detention. The Tribunal accepts that the Applicant has maintained close contact with his son while he has been in detention. The Tribunal accepts that the Applicant speaks with his son almost every day over the telephone and sees him in person at least every two weeks.
The Tribunal accepts that if the Applicant’s visa is cancelled he will have very limited in person contact with his son in the future. Indeed, the child’s mother initially told the Tribunal that, if the Applicant were to be removed from Australia, she would not allow her son to have any further contact with the Applicant. However, she eventually said that she would allow contact to continue if her son so wished and she said that she would allow him to visit the Applicant if she had the money to do so.
The Tribunal accepts that the Applicant’s son will be extremely distressed if his father is removed from Australia and he is permanently separated from his father.
The Tribunal considers that nature of the relationship between the Applicant and his son is a close parental relationship marked by a period of absence owing to his detention. However, as mentioned above the Applicant and his son have continued to have meaningful contact while the Applicant has been in detention.
The Tribunal accepts that the Applicant will play a parental role, that of a primary carer, for his son if he is allowed to remain in Australia. Whether the Applicant will play a positive parental role in the future in Australia will depend on whether the Applicant continues to offend. If the Applicant was to remain in Australia and was to reoffend this may cause further trauma for his son as a result of future incarceration and probable removal from Australia.
The impact of the Applicant’s prior conduct on his son is difficult to determine. The Applicant’s prior conduct has resulted in him being incarcerated and therefore being unable to spend time in person with his son. The Tribunal has heard evidence that the Applicant’s son is aware of the Applicant’s offending against his mother.
The Tribunal considers that the likely effect of separation of the Applicant from his son would be the severe, negative effect due to the permanent separation of a young child from a primary care giving parent. This is so notwithstanding that the child will continue to be cared for by his mother and that the child is likely to have telephone contact with the Applicant. The child may also be able to visit the Applicant in Nepal from time to time if money allows. In any event, contact by telephone or other electronic means is no substitute for the close in person relationship that the child could enjoy with the Applicant if he were to remain in Australia pending the determination of the Applicant’s substantive visa.
The Tribunal has received a statement from the child which clearly indicates that he loves his father dearly, wishes for his father to be able to remain in Australia with him, and will be very upset if his father is returned to Nepal.
There is no evidence that the Applicant has abused his son or neglected him in any significant way. However, the Tribunal has taken into account that the Applicant has committed appalling acts of violence against the child’s mother and has previously had significant problems with drug and alcohol abuse. The Tribunal considers that, if the Applicant returns to drugs and alcohol and continues to offend against the child’s mother, this will have a negative impact on the child.
There is no evidence that the child has suffered from physical or emotional trauma as a result of the Applicant’s conduct other than the trauma to the child of separation from the Applicant during his detention and the prospect of his removal. However, notwithstanding the absence of direct evidence, the Tribunal would not be at all surprised if the child has suffered emotional trauma as a result of the Applicant’s offences against his mother.
The Tribunal accepts that prior to his detention the Applicant was the primary breadwinner for the family. The Tribunal accepts that the Applicant’s son will benefit from the Applicant being able to provide for him financially if he remains in Australia. The Tribunal considers that it is very unlikely that the Applicant will be able to provide the same amount of financial support to his son if he were to return to Nepal.
The Tribunal considers that it is clearly in the best interests of the Applicant’s child for the Tribunal to set aside the decision not to revoke the decision to cancel the Applicant’s visa so that the he can remain in the community Australia with his father pending the outcome of the Applicant’s substantive visa application.
Conclusion: Primary Consideration B
The Tribunal finds that the best interests of the Applicant’s child weighs significantly in favour of revocation of the cancellation decision.
The Tribunal attributes significant weight to the primary consideration of the best interests of minor children in Australia in favour of setting aside the decision not to revoke the cancellation of the Applicant’s visa.
primary Consideration C: The expectations of the Australian Community
Paragraph 13.3(1) of the Direction states:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.”
How are those expectations determined?
The decisions of Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500 establish that:
·the concept of community expectations is not a matter to be measured as though it is a provable fact. It is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is an assessment of community values made on behalf of that community;
·it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations; and
·the Government’s views in relation to community expectations are to be found in the Direction itself. It is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community, as it has in the Direction, and for the Tribunal to Act on that statement.
These principles were confirmed very recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction, including the principles in paragraph 6.3(5) and paragraph 6.3(7) of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
In the present case, the Applicant failed to meet the expectation of the Australian community to abide by the law. This expectation was breached on numerous occasions over a period of years. The Tribunal considers that the Australian community expects the Australian Government to cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere.[1] In the present matter the Government has acted in accordance with that expectation as was required by section 501(3A) of the Act.
[1] See paragraph 6.3(2) of the Direction.
The Tribunal considers that Applicant’s violent conduct was very serious and the Direction provides that the Australian community considers that non-citizens who commit serious crimes should generally expect to forfeit the privilege of staying in Australia.[2] In considering the weight that should be attributed to this consideration the Tribunal has also considered that Australia has a low tolerance of any criminal or other serious conduct by those holding a limited stay visa.[3]
[2] See paragraph 6.3(3) of the Direction.
[3] See paragraph 6.3(6) of the Direction
Against the expectations of the Australian community in relation to its protection, the Tribunal considers that some weight should be placed, in the Applicant’s favour, on the severe negative consequences of non-revocation on the Applicant’s child and, to a much lesser degree, his former partner.
Conclusion: Primary Consideration C
Overall, given the serious nature of much of the Applicant’s offending, the real chance that he will reoffend, and notwithstanding the negative effects on the Applicant’s child and former partner if the cancellation of his visa is not revoked, the Tribunal finds that the consideration of expectations of the Australian community weighs against the revocation of the cancellation of the Applicant’s Bridging visa.
The Tribunal places moderate weight on this consideration in favour of non-revocation of the cancellation of the Applicant’s visa.
other considerations
Paragraph 14 of the Direction provides for other considerations. They include but are not limited to:
(a)International non-refoulement obligations;
(b)strength, nature and duration of ties
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
(a) International non-refoulement obligations
Neither party has raised any issue about non-refoulement regarding the Applicant and no issue arises on the material before the Tribunal. In these circumstances, this consideration is not relevant in this matter.
(b) Strength, nature and duration of ties
Paragraph 14.2 of the Direction provides:
Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the noncitizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of cancellation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant first arrived in Australia in 2009 as a 20 year old. He has lived in Australia ever since. The Applicant began offending shortly after he arrived in 2009 and has committed 13 offences from 2009 until 2018. The Applicant has made a positive contribution to the community through stable employment and being a good father to his child. However, this contribution has been to a large degree counterbalanced by the negative effects on the community of his offending.
The Applicant’s connection to his child has been discussed above under the primary consideration of the best interests of minor children. The Applicant’s former partner gave evidence that she still loves the Applicant as do her parents, brother and sister. The Applicant also indicated that he has a cousin who lives in Canberra. In addition, the Tribunal received a short email of support from the Applicant’s friend. There is very little other evidence of the Applicant’s ties to the community.
Overall, the Tribunal finds that other than the strong ties that the Applicant has to his child in Australia, the Applicant does not have particularly strong ties to Australia. The Tribunal finds that this consideration weighs in favour of the revocation of the decision to cancel Applicant’s visa. The Tribunal places low weight on this consideration in the Applicant’s favour.
(c) Impact on Australian business interests
Neither party has argued that this consideration is relevant in the current matter. In these circumstances the Tribunal places no weight on this consideration.
(d) Impact on victims
Paragraph 14.4(1) of the Direction provides:
“Impact of a decision not to revoke 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 that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.”
It is likely that this consideration was envisaged to take into account any expressed views of members of the Australian community, in a particular victims or members of their families, on the negative impact on them of a decision not to revoke the cancellation of an applicant’s visa.
This appears to be a rare case where the victim of an Applicant’s most serious offending has sought for the cancellation of the Applicant’s visa to be revoked. That is, that a decision not to revoke the cancellation of the Applicant’s visa would have a severe negative impact on the victim of the Applicant’s offending. In this case, the Applicant’s former partner is the victim of the Applicant’s most serious offending. The Tribunal has also found that she is the most likely potential victim of any future violent offending.
The Applicant’s former partner has expressed that she dearly wishes for the Applicant to be able to remain in Australia. The main reason for this is because the Applicant is the father of her child and she believes that it is clearly in the best interests of her child that his father remains in Australia to provide him love and support and also to provide for him financially. In addition, the Applicant’s former partner indicates that she loves the Applicant and hopes to re-establish a relationship with him in Australia.
The Tribunal finds that this consideration weighs in favour of the revocation of the decision to cancel Applicant’s visa. The Tribunal places low weight on this consideration in the Applicant’s favour.
(e) Extent of impediments if removed
Paragraph 14.5 of the Direction provides:
(1)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.
The Applicant is a man of 31 years of age who suffers from depression and alcohol abuse disorder which is in remission. It does not appear that there are any language or cultural barriers which would act as impediments to the Applicant establishing himself in Nepal. As a citizen of Nepal, the Applicant will be entitled to any social, medical and economic support available to Nepalese citizens in Nepal, however limited.
The Applicant gave evidence that while his parents live in Nepal, they would be able to give him limited assistance in establishing himself there. The Applicant, his former partner and his son visited Nepal for some four months in 2013. The Applicant indicated that if he were allowed to remain in Australia, his sister and brother in the United States would be able to provide him with some financial assistance. The Applicant has given no reason why his siblings could not do the same if he were to return to Nepal.
The Applicant completed secondary education in Nepal. He has given evidence that he has worked for most of the time that has been in Australia. He has said that he is a good worker and has a strong work ethic.
The Tribunal accepts that the Applicant suffers from depression and is a recovering alcoholic. The Tribunal accepts that the Applicant is unlikely to receive the same level of health services in Nepal as he would in Australia. The Tribunal accepts that this may mean that the Applicant may return to alcohol and drug abuse and that this may result in the Applicant continuing to offend in Nepal. This in turn may lead to the Applicant being punished for crimes in Nepal.
The Tribunal finds that the Applicant will face difficulty in re-establishing himself in Nepal. He has lived in Australia for some 10 years and will be likely to be very upset and missing his child. The Tribunal considers that the Applicant may find it difficult initially to gain employment in Nepal. However, the Applicant has a secondary level education, is a good worker and has work experience in Australia. The Tribunal considers that these things will assist him in finding employment in Nepal. The Applicant will also have some support, however limited, from his parents in Nepal with possible financial assistance from his siblings in the United States.

The Tribunal notes that the Applicant came to Australia on a Student visa, that he subsequently held a Subclass 461 temporary visa before holding a Bridging visa. These are all temporary visas which do not permit a person to remain in Australia permanently. Holders of student visas are usually expected to return to their home countries after completing their studies in Australia. When the Applicant applied for his student visa, one of the criteria for the grant of the visa would have been that he intended to remain temporarily in Australia for the purpose of studying. The Applicant has never held a permanent visa, has never had the right to remain in Australia permanently and has never had any guarantee that he could remain here permanently. What the Applicant lost when his Bridging visa was cancelled was the opportunity to remain in Australia temporarily.
The Tribunal finds that this consideration weighs in favour of revocation of the decision to cancel the Applicant’s visa. The Tribunal attributes low weight to this consideration in the Applicant’s favour.
Hardship and harm to the Applicant
The Tribunal has also considered the effect of non-revocation on the Applicant in addition to impediments to re-establishing himself in Nepal. The Tribunal considers that the non-revocation of the cancellation of the Applicant’s visa would have a significant negative effect on the Applicant. The Applicant would be permanently separated from his son in Australia. In all likelihood, the Applicant would never be able to return to Australia, where he has lived for 10 years.
The Tribunal finds that this consideration weighs in favour of revocation of the decision to cancel the Applicant’s visa. The Tribunal attributes moderate weight to this consideration in the Applicant’s favour.
Conclusion: Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
The Tribunal has found that the primary consideration of the protection of the Australian community weighs moderately against revocation of visa cancellation. Similarly, the Tribunal has found that the primary consideration of the expectations of the Australian community weighs moderately against revocation of visa cancellation. The Tribunal has found that much of the Applicant’s offending was very serious, that there would be harm to members of the Australian community if they were repeated and that there is a real risk that the Applicant will re-offend. The Tribunal has also found that the Australian community would expect that the Tribunal not revoke cancellation of the Applicant’s visa, notwithstanding the hardship to his child that non-revocation would cause and the length of time that the Applicant has spent in Australia.
The Tribunal has found that the primary consideration of the best interests of minor children, in this case, his son, weighs significantly in favour of revocation of the cancellation decision.
The Tribunal has found that the consideration of the strength, nature and duration of ties of the Applicant to Australia weighs in favour of revocation of the cancellation decision and attributed low weight to this consideration. The Tribunal has found that the consideration of the extent of impediments if removed weighs in favour of revocation of the cancellation decision and attributed low weight to this consideration. Finally, the Tribunal has found the consideration of hardship to the Applicant weighs in favour of revocation of the cancellation decision and has attributed moderate weight to this consideration.
In this case, the Tribunal considers that there is a real risk that the Applicant will reoffend in Australia. The most likely victim of any potential reoffending is the Applicant’s former partner. She has clearly expressed to the Tribunal that she dearly wishes for the Applicant to remain in Australia. She has expressed that she wishes for him to remain in Australia so that he can remain in a parental role for their son and also provide for their son financially. She said that she is struggling to raise their son without him. Further, she has expressed that she loves the Applicant and hopes to be able to reconcile with him. It may well be that the Applicant’s former partner does not fully appreciate the risk that the Applicant may present to her safety. However, the Tribunal considers that it is significant that the Applicant’s former partner is willing to bear the risk that the Applicant presents to her, primarily so that her son will have a father. The Tribunal has played placed weight on this consideration in the exercise of its discretion.
The Tribunal has also placed weight on the fact that the Applicant will only be able to remain in Australia pending the outcome of his substantive visa application, thereby reducing the time that the Applicant will have to reoffend. That application may well still be refused on character grounds.
While the question in the current matter, in a practical sense, is ultimately whether the Applicant presents an unacceptable risk to the Australian community in the short term between now and the determination of his Subclass 461 visa application, the questions for a decision maker considering whether to refuse the Subclass 461 visa under section 501 of the Act may be very different. For example, whereas in the current matter it is relevant to look at the risk of reoffending in the short-term between now and the determination of the Applicant’s Subclass 461 application, the question for a future decision maker in this regard is likely to be focused on the risk that the Applicant presents in the longer term noting that a Subclass 461 visa is a five-year visa. The point that I am making is that the outcome of these proceedings should not be determinative, one way or the other, of any future consideration of refusal of the Applicant’s Subclass 461 visa application under section 501 of the Act. Any future decision-maker considering refusal of the Applicant’s substantive visa application will have to make their own findings of fact, to apply the law and the Direction to the facts, and to reach their own conclusions as to whether the Applicant passes the character test and the exercise of the discretion to refuse the application under section 501 of the Act.
After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 6.3 of the Direction, I have decided that the primary consideration of the best interests of minor children in Australia and the other considerations of strength, nature and duration of ties, impact on victims, extent of impediments if removed, and hardship to the Applicant outweigh the primary considerations of the protection and expectations of the Australian community in this case.
The Tribunal has found that the Applicant does not pass the character test but has found that there is another reason why the original decision should be revoked.
The Tribunal has decided to set aside the decision under review and for a decision in substitution to be made revoking the cancellation decision. The Tribunal considers that this is the preferable decision in this case.
DECISION
The decision under review is set aside and a decision in substitution is made revoking the original Bridging visa cancellation decision.

I certify that the preceding 190 (one hundred and ninety) paragraphs are a true copy of the reasons for the decision herein of Member Tigiilagi Eteuati

...........................[SGD]............................................
Associate
Dated: 25 October 2019

Date of hearing:

15 October 2019

Solicitor of the Applicant:

Ms Marta Mamarot

SouthWest Migration & Legal Services

Solicitor for the Respondent:

Ms Brooke Griffin

Australian Government Solicitor

EXHIBIT REGISTER

File No 2019/4709................................................................................................................

Between Dipendra Malla....................................................................................... (Applicant)

And Minister for Home Affairs................................................................... (Respondent)

Heard on 15 October 2019

At Sydney.....................................................................................................................

Before Member T Eteuati....................................................................................................
Associate Philippa J.................................................................................................................

Exhibit Number	Description of Evidence Dated
A1	Statutory Declaration of Applicant’s former wife dated 5 September 2019
A2	Statutory Declaration of Dipendra Malla dated 6 September 2019
A3	Letter from [Applicant’s son’s name redacted] dated 4 September 2019
A4	Dipendra Malla family photographs (undated) filed 6 September 2019
A5	DFAT Country Information Report – Nepal – dated 1 March 2019
A6	Dipendra Malla’s Villawood Detention Client Incident Report 10.12.2018 - 2.07.2019
A7	Dipendra Malla’s Intensive Correction Order Reinstatement Report dated 23 March 2018
A8	Dipendra Malla’s Medical Reports 2.07.2019 – 3.07.2019
A9	Dipendra Malla’s OIMS Case Note Report 1.11.2018 – 21.11.2018
A10	Dipendra Malla’s OIMS Case Note Report 26.11.2018 – 7.12.2018
A11	Letter of Support from Nick Stiskin dated 1 May 2019
A12	Expert Report of Psychologist dated 30 September 2019
R1	Respondent’s Tender Bundle filed 24 September 2019
R2	G-Documents filed 19 August 2019

[2019] AATA 4369

25 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies