Mamatta and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 133

Mamatta and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 133 (10 February 2023)
Division:GENERAL DIVISION
File Number:2021/7424
Re:Ila Junior Mamatta
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member Theodore Tavoularis
Date:10 February 2023
Place:Brisbane

Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent, dated 11 October 2021 not to revoke the mandatory cancellation of the Applicant’s Class TU Subclass 500 Student visa.
........................[SGD].........................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TU Subclass 500 Student Visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – Applicant voluntarily left Australia- visa in question of a time-limited nature - Utility of Ministerial Direction No 90- consideration of Ministerial Direction No. 90 – decision under review affirmed
Legislation
Acts Interpretation Act (1901) (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Family Law Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1571
Jagroop and Minister for Immigration and Border Protection (2016) 241 FCR 461
Plaintiff M1 v Minister for Home Affairs (2022) 400 ALR 417
Secondary Materials
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)
REASONS FOR DECISION
Senior Member Theodore Tavoularis
10 February 2023
Introduction and background

Ila Junior Mamatta (‘the Applicant’) is a 25-year-old male, born in Papua New Guinea (‘PNG’) in July 1997. By a decision dated 11 October 2021 a delegate of the Minister for Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’ or ‘the Respondent’) refused to revoke the mandatory cancellation of the Applicant’s Class TU Subclass 500 Student Visa (‘the visa’). This refusal to revoke decision was made pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’).
The Applicant’s visa was mandatorily cancelled by the Respondent pursuant to s 501(3A) of the Act as a result of the imposition of an 18 month custodial term of imprisonment.[1] For offending charged under specific sections of the Queensland Criminal Code Act 1899 (Qld) (‘the Criminal Code’). The Applicant’s criminal history in Australia can be summarised as follows:[2]
[1] R2, G27.
[2] R2, G4.

Court

Date

Offence

Result

Brisbane Magistrates Court

23/02/2021

Common assault

Conviction recorded
Sentenced imprisonment:
4MO
To be suspended for:
9MO

Contravention of domestic violence order
Possess utensils or pipes etc that had been used
Possessing dangerous drugs
Contravention of domestic violence order
Breach of bail conditions Concurrent on all charges
Conviction recorded
Not further punished

Brisbane District Court

02/11/2020

Choking suffocation strangulation domestic relationship – domestic violence offence

Conviction recorded
Sentenced imprisonment:
2Y 6MO
To be suspended for: 3Y
after serving: 6MO

Assaults occasioning bodily harm – domestic violence offence On all charges conviction recorded
Sentenced imprisonment: 18MO
To be suspended for: 3Y
after serving: 6MO

Common assault
domestic violence offence
Conviction recorded
Sentenced imprisonment:
6MO
all terms of imprisonment to be served concurrently
declare that time spent
in pre-sentence custody
be deemed as time already
served under this sentence:
30 DAYS

Brisbane Magistrates Court

31/08/2020

Breach of bail condition
Contravention of domestic
violence order

On all charges
no conviction recorded
recognisance: $100.00
good behaviour period: 12MO

Brisbane Magistrates Court

12/09/2019

Wilful damage

No conviction recorded
Fined: $200.00
Time to pay: 28D
Recognisance: $450.00
Good behaviour period: 9MO
Restitution: $600.00
Time to pay: 1MO

On 19 November 2020 while the Applicant was serving the abovementioned sentence of 18 months, a delegate of the Respondent Minister mandatorily cancelled his visa because he did not pass the character test as he was serving a full-time custodial sentence. This mandatory cancellation decision was made pursuant to s 501(3A) of the Act.

On 17 December 2020 the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (‘revocation request’).
5.On 11 October 2021 the delegate of the Respondent decided, pursuant to s 501CA(4) of the Act, not to revoke the mandatory cancellation decision made on 19 November 2020.

On 12 October 2021 the Applicant lodged an application in this Tribunal for review of the abovementioned refusal to revoke decision made on 11 October 2021. That application was ventilated in this Tribunal on 7 and 8 December 2021. This Tribunal (differently constituted) made its decision in relation to the first-ventilated application on 3 January 2022.
There followed an appeal by the Applicant to the Federal Court of Australia for judicial review of the Tribunal’s decision of 3 January 2022. This decision of the Tribunal was, via the issue of constitution writs of certiorari and mandamus, quashed by the Federal Court on 1 June 2022. The Federal Court (per His Honour Justice Logan) directed this Tribunal to

re-determine the Applicant’s application for review according to law. This Tribunal has jurisdiction to review the refusal to revoke decision[3] pursuant to s 500(1)(ba) of the Act.
[3] Made pursuant to s 501CA(4) of the Act.
The Applicant has arrived in and departed from Australia on multiple occasions.[4] For present purposes it suffices to say that his offending in this country has caused him to be removed from the Australian community since October 2019. Following is a chronological list of events relevant to this review application:[5]
[4] R2, G23.
[5] R3.]
·
the Applicant went into criminal custody for the period 8 October 2019 to

6 November 2019;
·the Applicant was then granted bail;[6]
·on 2 November 2020, the Applicant was sentenced at the Brisbane District Court;[7]
·on 2 April 2021 the Applicant was released from criminal custody and immediately taken into immigration detention;
·he remained in immigration detention until March 2022, whereupon he voluntarily left Australia and returned to PNG; and
·at the time of the remittal Hearing before me, the Applicant remained offshore in PNG.
[6] R2, pp.467-468.
[7] R1, pp 35-40 – see sentencing remarks of His Honour Judge Dearden DCJ.
The remittal Hearing proceeded before me on 17 November 2022. The Hearing received oral evidence from the Applicant and his current partner Ms Lauren Jessi Barbara David. There was also written evidence before the Tribunal at the Hearing I conducted and, of course, at the previous ventilation of this matter in this Tribunal. The totality of that material was consolidated into an agreed Exhibit List, [8] a true and correct copy of which is attached to these Reasons and marked ‘Annexure A’.
[8] See Transcript, p 2, lines 15-38; see also Transcript, p 45, lines 18-26.
Legislative Framework
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act.[9] Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised.
[9] R2, G8.
There are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; and
(b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Does the Applicant pass the Character Test?
The parties are ad idem that the Applicant does not pass the character test. This concession was rightfully made by the Applicant’s representative at the Hearing before me.[10] The Respondent’s representative did not seek to disturb or amend the submission about the character test put on behalf of the Respondent at the previous ventilation of that matter at this Tribunal.[11] Likewise, at the Hearing before me, neither party sought to challenge the finding made by the previous Tribunal that the Applicant did not pass the character test.[12]
[10] Transcript, p 45, line 33.
[11] R2, p 621, lines 35-38.
[12] Ibid, p 715, paras [33]-[34].
A cursory review of the Applicant’s criminal history clearly demonstrates that he does not pass the character test[13] on the basis that he has acquired a ‘substantial criminal record’ due to his being sentenced to at least one term of imprisonment of 12 months or more.[14] He therefore does not pass the character test and cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[13] s 501(3A)(a) of the Act.
[14] S 501(7)(c) of the Act.
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction’ or ‘Direction 90’) has application.[15]
[15] Direction No 90 commenced on 15 April 2021. It replaces Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.[16]
[16] Direction No 90, para [6]. See also Direction, para [4(1)] which provides that a, “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
The principles in paragraph 5.2
Paragraph 5.2 of the Direction is designed to, ‘provide a framework within which decision-makers should approach their task’ under s 501 or 501CA of the Act (as the case may be). Summarised where appropriate, the principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.
(2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
The Primary and Other Considerations
Paragraphs 8 and 9 of the Direction respectively stipulate four ‘Primary Considerations’, and four ‘Other Considerations’ by which I must be guided in making my decision.
The Primary Considerations I must take into account are:
‘(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.’[17]
[17] Direction , para [8].
The Other Considerations which, where relevant, I must take into account, ‘include but are not limited to’:
‘a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests’[18]
[18] Ibid, para [9(1)].
Paragraph 7 of the Direction also provides guidance as to how to take into account each Primary and Other Consideration. Briefly summarised, the Direction instructs decision-makers that:
‘(1) Information from independent and authoritative sources should be given appropriate weight;
(2) Primary Considerations should “generally” be given greater weight than Other Considerations; and
(3) One or more Primary Considerations may outweigh other Primary Considerations.’
Prior to addressing the abovementioned Primary and Other Considerations, it is necessary to first engage with an argument put on behalf of the Applicant about whether the Direction is of any real utility in determining whether there is another reason to revoke the mandatory cancellation decision pursuant to s 501CA(4)(b)(ii) of the Act.
The Utility Contention
Is the Direction of any utility?
The Applicant contends that the Direction is of no real utility in determining whether there is another reason for restoring the Applicant’s visa status pursuant to s 501CA(b)(ii) of the Act. As I understood it, the gist of the utility contention is that the abovementioned Primary and Other constituent parts of the Direction are not relevant to the to specific circumstances of this case. This is said to be so because of certain nomenclature in the language of the Direction. In particular, it is contended that the mandatory obligation incumbent on the Tribunal to take into account the abovementioned componentry of the Direction is obviated by virtue of the words ‘where relevant’.
Paragraph 6 of the Direction provides as follows:
‘ Exercising discretion: Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision’
[My emphasis].
The abovementioned Primary and Other Considerations are respectively found at paragraphs 8 and 9 of the Direction.
There seems little to cavil with the suggestion that this Tribunal should genuinely consider, and reach a conclusion about, the validity of the utility contention as part of its decision making rationale in the instant application.[19] It is common ground that the basis of the remittal of this matter arose from the previous Tribunal’s failure to:
‘…confront the necessary consequences, in terms of protection of the community and of community expectations, flowing from the expiry in any event of Mr Mamatta’s student visa, even if its cancellation were revoked, and of his necessarily continuing to be in immigration detention, pending the discharge by the Minister of a statutory obligation to remove him.’[20]
[19] See Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417 at [22] to [25] (internal reference omitted).
[20] G2, p 807, para [67].
While it may be contended by the Applicant that the previous Tribunal may have failed to deal with the case as presented to it, it does not necessarily follow that the Federal Court’s remitting decision stands for the proposition that this Tribunal should disregard the Direction.
The Applicant says that the Direction is not relevant for two primary reasons. First, it is contended that the Direction is ‘…not directly relevant to engendering a state of satisfaction…that there is “another reason” why the mandatory cancellation should be revoked.’ Second, it is said that ‘to the extent [the principles and considerations in the Direction] are relevant, they weigh in favour of…being satisfied that there is “another reason” why the mandatory cancellation decision should be revoked.’[21]
[21] A1, p 5, para [24].
Instead, a core representation is put on behalf of the Applicant in these terms:
‘It would be wrong for the Tribunal to adopt an approach to this review that simply balances the primary and other considerations. So much is clear from the Federal Court’s reasons for judgment. The core representation made by the applicant is, in very broad compass, that:
(a) he had a visa (subclass 500) that was always limited as to time;
(b) revocation of the mandatory cancellation would not restore him to any visa, or give him any right to enter into or remain in Australia;
(c) by reason of the immediately preceding paragraph, any principle or consideration (primary or other) that relates to protection of the Australian community or expectations that a visa ought to be cancelled in prescribed circumstances does not weigh against setting aside the mandatory cancellation;
(d) in effect, all that setting aside the mandatory cancellation would do is treat the mandatory cancellation as though it had never been made: subsection 501CA(5); and
(e) by reason of the immediately preceding paragraph, the applicant would satisfy the Special Return Criteria (in schedule 5, item 5001 of the Migration Regulation 1994 (the Regulation)) when being considered for an application for any other type of visa. As will be developed, the Minister’s granting a new visa is discretionary and, still, would involve a consideration of the factors in the Direction in deciding whether to grant, or refuse to grant, any future visa under section 65 of the Migration Act.’[22]
[22] A1, p 5, para [26].
Addressing the core representation of the Applicant
In the following bullet points, I will address each of these elements of the core representation in turn.
·I have difficulty in comprehending in how the time-limited nature of the Applicant’s previously held student visa now militates in favour of a contention that the Direction does not apply to the instant determination. I have this difficulty for a couple of reasons. First, the Direction, at paragraph 5.2(4) makes clear reference to ‘…those holding a limited stay visa…’ in the context of the extent of the Australian community’s level of tolerance for serious conduct. Second, the Direction specifically contemplates a situation ‘…where a non-citizen is serving a sentence of imprisonment but will not have a visa which is in effect at the end of the sentence.’ While this Tribunal is not precluded from taking into account the nature and duration of any visa in its decision making process, it does not follow that, for example, the time-limited nature of a given visa somehow obviates, in whole or in part, the ambit of the Tribunal’s discretion in applying the Direction as part of determining whether there is ‘another reason’ to restore the Applicant’s visa status pursuant to s 501(4)(b)(ii) of the Act;
·It is correct for the Applicant to say that a revocation decision by this Tribunal would have the practical effect of not restoring the Applicant’s previous visa status nor would it afford him any right to enter into or remain in Australia. I have difficulty in making any safe of logical leap from that proposition to the Applicant’s following proposition which suggests that any principle or consideration in the Direction relating to either or both of (1) protection of the Australian community;[23] or (2) the expectations of the Australian community[24] are not engaged for the purposes of the instant determination. To my mind, the fundamental difficulty with this submission is that it purports to isolate the Tribunal’s assessment and application of these two Primary Considerations[25] to a paradigm arising immediately after publication of its decision. The language of the Direction does not impose a time-specific requirement on this assessment, but instead, requires the Tribunal to take future risk into account. For example:
onothing in the language of the chapeau to paragraph 8.1 of the Direction dealing with protection of the Australian community purports to so limit the abovementioned assessment of the Tribunal in relation to that Primary Consideration 1;
oprinciple 5.2(5) is future-looking. It directs decision-makers to take into account the Primary and Other Considerations relevant to an individual case and further contemplates the nature of unlawful conduct to be taken into account by the Tribunal ‘…if the conduct were to be repeated…’;
oparagraph 8.1(2) is future-looking. It requires an assessment of the nature and seriousness of a non-citizen’s conduct ‘…to date…’ but goes on to direct that in assessing the recidivist risk represented by a non-citizen, the decision-maker should make an assessment about such risk ‘…should the non-citizen commit further offences or engage in other serious conduct…’
oparagraph 8.1.2(1) is future-looking. It compels decision-makers – in the course of assessing recidivist risk – to 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.’
oparagraphs 8.1.2(2)(a) and (b) are both future-looking. In assessing recidivist risk, it compels decision makers to look at the nature of the harm ‘…should the non-citizen engage in further criminal or other serious conduct.’ In assessing the likelihood of the Applicant ‘…engaging in further criminal or other serious conduct…’. a decision-maker is directed to take into account, inter alia, information and evidence on recidivist risk and evidence of any rehabilitation undertaken by the non-citizen.
[23] Primary Consideration 1, paragraph 8(1) of the Direction.
[24] Primary Consideration 4, paragraph
[25] That is, Primary Considerations 1 and 4.

I am therefore satisfied that Parliament did not intend for the Direction to directly or indirectly time-limit or time-specify the period of time in respect of which the Tribunal must make an assessment about how (1) the Applicant’s recidivist risk impacts the protection of the Australian community; and (2) the expectations of the Australian community referrable to the Applicant’s offending profile in this country. I agree with the Respondent’s contention: ‘the Tribunal does not have to assess risk in any particular way.’[26]
[26] R3, p 10, para [36].
It logically follows that the assessment of (and allocation of weight to) the Direction’s components relating to protection of the Australian community should encompass a non-citizen’s potential for re-entering the Australian community.
A similar conclusion can be reached with reference to how the Tribunal assesses (and allocates weight to) Primary Consideration 4 of the Direction comprising the expectations of the Australian community. I do not think the Direction predicates analysis of this particular Primary Consideration on a temporal basis such as when, for example, a person is in Australia. Principal 5.2(3) of the Direction makes plain that ‘The Australian community expects that the Australian government can and should refuse entry to on-citizens, or cancel their visas, if they engage in conduct, in Australia or elsewhere, that raises serious character concerns.’ Cancellation of a visa is not a temporally-based exercise.
The language of Primary Consideration 4 itself endorses the absence of any

temporally-based requirement as a pre-condition to its application. In particular, paragraph 8.4(2) of the Direction says ‘…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…’. The instant consideration before the Tribunal does not involve cancellation of the Applicant’s visa. It involves the question of whether or not there is another reason to revoke that cancellation. The Direction has nothing to say about any temporal requirement that analysis of this Primary Consideration is exclusively predicated on a time when a non-citizen is seeking to stay in or enter Australia.
The Applicant contends that by setting aside the mandatory cancellation, this Tribunal would be doing no more than treating that mandatory cancellation as though it had never been made.[27] Pursuant to s 501CA(5) of the Act the resulting contention is that the Applicant would thereby satisfy the Special Return Criteria (in Schedule 5 Item 5001 of the Migration Regulations 1994 (‘the Regulations’)) when being considered for any future application for another visa.
[27] A1, [26]
It can be accepted that revocation of the decision refusing to revoke the original mandatory cancellation decision would result in a scenario whereby, pursuant to

s 501CA(5) of the Act, the original mandatory cancellation decision (made pursuant to s 501(3A) of the Act) would be taken to never had been made. This would, in turn, facilitate the Applicant’s satisfaction of the Special Return Criteria such that he could be considered for the grant of another type of visa.
It can also be accepted that if this Tribunal does revoke the mandatory cancellation decision (s 501(3A) of the Act), then the Applicant would not satisfy the abovementioned Special Return Criteria. But that would not absolutely preclude the Applicant from possibly obtaining another visa. As noted in the abovementioned Regulation 5001(c)(ii), the Minister, acting personally, could theoretically grant a permanent visa to the Applicant. He has an application for a partner visa currently before the Minister. The Applicant contends that a decision by this Tribunal refusing to revoke the s 501CA(4) decision ‘will mean his application [for a partner visa] is bound to fail.’ [28]
[28] A1, [39].
This is not necessarily the case or cannot be presently known with any certainty. This is because the Minister’s power to grant the partner visa is regulated by s 65 of the Act. Section 65(1)(a)(i)-(iv) stipulates four conjunctive criteria. If all four of those criteria are met, then the Minister’s discretion is engaged. Section 65 of the Act expresses that discretion in binary terms – that is, depending on the Minister’s level of satisfaction about whether a visa applicant satisfies the four conjunctive criteria, the Minister can then grant or refuse to grant the requested visa.
Is the Applicant’s case unusual?
The Applicant puts this contention in these terms:
‘The applicant’s case before the Tribunal has always been that his case was unusual. His Visa was always a time-limited visa that never secured an enduring and permanent right to lawfully remain in Australia as a lawful non-citizen.
The applicant’s migration status in Australia (from the last grant of his valid Visa prior to its cancellation) can be summarised in the following way:
(a) on and from 4 March 2019, the applicant held a valid visa and his presence in Australia was lawful (by reason of his being a ‘lawful non-citizen;);
(b) on 19 November 2020, the applicant’s Visa was cancelled under subsection 501(3A) and he became an unlawful non-citizen on and from that day – consequently, an officer was obliged to (and did in fact) keep him in immigration detention pursuant to s 189 of the Migration Act.21 An officer was also required to remove the applicant from the Commonwealth as soon as practicable pursuant to s 198 of the Migration Act;
(c) had the mandatory cancellation not happened, the applicant’s Visa would have in any event expired by effluxion of time on or about 25 June 2021; and
(d) absent the application for a new visa, on and from 25 June 2021, the applicant would (even if the mandatory cancellation had not happened) have become an unlawful non-citizen and (unless he chose to depart the Commonwealth) he would have been taken into in immigration detention and removed pursuant to ss 189 and 198 respectively.’[29]
[29] A1, pp 7-8, paras [32]-[33].
To my mind, the Applicant’s case is not unusual. The Direction clearly contemplates matters involving non-citizens who are/were in Australia on a limited stay visa or who had been participating in, and contributing to, the Australian community for a short time. Likewise, this Tribunal is not unfamiliar with situations where a visa is granted, it is then cancelled and the non-citizen is outside the migration zone at a time when a given matter is remitted to this Tribunal. The Direction is not agnostic to such a scenario.
The Applicant accepts that he does not fall within the auspices of s 501E of the Act and is not a person thereby prohibited from applying for another visa. In this vein, it is disingenuous for the Applicant to contend that he is forever prohibited from applying for another visa. As mentioned he has a pending application for a partner visa before the Minister and, as I have already found, item 5001(c) of the Regulations is not an absolute bar to the Applicant applying for another visa.
I therefore do not consider the circumstances of this matter to be unusual and, to whatever extent it may be thought they are, they do not obviate the Tribunal’s task to apply the Direction as it is required to do by s 499(2A) of the Act.
Deferral of this Tribunal’s statutory task to another decision-maker?
The Applicant contends that this Tribunal’s statutory task of applying the Direction to the instant task is best left to a future decision maker who will then ascertain whether s 501 of the Act precludes the grant of that visa. Support for this contention is sought from s 65 of the Act. In the third of the four conjunctive criteria of s 65, the Minister must be satisfied that the grant of the visa sought by the Applicant is not prevented by (inter alia) s 501 of the Act.
It is difficult to see how this Tribunal’s statutory task is displaced by the Minister’s possible future consideration (and determination) of any future visa sought by the Applicant. There is nothing in the Act or the Direction suggesting that this Tribunal is precluded from applying the Direction to the instant facts simply because the Direction may be applied by the Minister at some future point. As noted by the Respondent ‘That Direction no. 90 may be applied at that future point does not exclude its application here.’ I agree.
I reject the contention that in meeting its statutory obligation to apply the Direction to the instant facts, this Tribunal is denying the Applicant the opportunity to seek a future visa. This Tribunal should act within the confines of its statutorily-obligated task and apply the Direction. Much was sought to be made of a situation where an adverse outcome for the Applicant in this proceeding would forever preclude the Applicant from applying for another visa to come here.
Harsh though this may sound, such a consideration is not within the ambit of this Tribunal’s decision-making scope. This is so for two reasons. First, Item 5001(c) of the Regulations does not constitute an absolute bar on the Applicant’s capacity to apply for another visa. Second, there is nothing in the language of s 501 of the Act permitting this Tribunal to make some kind of alternate ‘conditional’ or ‘contingent’ decision depending on a possible future outcome relating to the grant or non-grant of another visa. The responsibility of this Tribunal is straightforward: the decision under review is set aside or it is not set aside.
Conclusion about the utility issue
For the above reasons, the utility argument does not obviate or otherwise displace this Tribunal’s statutory obligation to apply the Direction to the instant facts. Due to the absence of any temporal stipulation conditioning the application of the Direction, the Applicant’s absence from Australia does not mean this Tribunal should not make an assessment about protection of the Australian community from any further offending by this Applicant. The same finding can be made with the assessment of the expectations of the Australian community. Likewise, it is difficult to comprehend how the Applicant’s conduct that caused his visa to be mandatorily cancelled should not now be considered by this Tribunal in circumstances where his conduct was perpetrated in Australia and where there is the possibility of him returning here – albeit via the agency of another visa.
Indeed, this latter aspect is a curious element of the Applicant’s case. On the one hand it is contended that the Tribunal’s application of the Direction to the instant facts is of little or no utility. Yet on the other hand, it is said that the Direction’s Primary and Other Considerations ‘…do not outweigh giving [the Applicant] the opportunity to exercise that right [i.e to apply for another visa.’[30]
[30] A1, p 9, para [40(b)].
As noted by the Respondent, there is a lack of clarity in the Applicant’s utility argument with reference to how or to what extent the Primary and Other Considerations in the Direction may apply to him.[31] We are told that due to a claimed temporal issue (which I have rejected) of the Applicant not being in Australia at the time of this decision, Primary Considerations 1, 2 and 4 have no application. Yet, no such contention is made with regard to Primary Consideration 3, in respect of which we are told ‘…the applicant developed submissions that he was a father figure to his partner Lauren’s minor children.’[32] At the Hearing before me, it was orally contended that the Tribunal should take into account the Applicant’s potential loss of links to the Australian community.
[31] R3, [50]-[52].
[32] Ibid, p 10, para [43].
I am safely led to the conclusion (and finding) that the utility issue must be rejected. I reach the further conclusion (and finding) that the circumstances of this case are not unique and do not otherwise serve to displace this Tribunal’s statutory obligation to apply the Direction. I will now do so.
I will now turn to addressing the abovementioned Primary and Other Considerations.
Primary consideration 1: Protection of The Australian Community
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to
keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by

non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(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.
I will consider each in turn.
The nature and seriousness of the non-citizen’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
Paragraphs 8.1.1(1)(a)(i),(ii) and (iii)
There is little or nothing to cavil with the finding that this Applicant has convictions for crimes of violence against a woman and that such violence occurred in a domestic or family context. On 2 November 2020 he received respective convictions for (1) common assault – domestic violence offence; (2) assaults occasioning bodily harm – domestic violence offence; and (3) choking, suffocation, strangulation domestic relationship – domestic violence offence. Those offences fall squarely within the ambit of paragraph 8.1.1(1)(a) of the Direction and, as such, are viewed very seriously by the Australian government and the Australian community – as stipulated in the chapeau to this section. These three sub-paragraphs therefore strongly militate of a finding that the totality of this Applicant’s conduct in Australia has been very serious.
Paragraph 8.1.1(2)(b)(i), (ii), and (iv)
There is nothing in the offending history of this Applicant suggestive of him being a party to causing a person to enter into a forced marriage. He has not committed crimes against vulnerable members of the community and he does not appear to have offended while in immigration detention. These three sub-paragraphs are not relevant to the instant determination.
Paragraph 8.1.1(2)(b)(iii)
This sub-paragraph refers to ‘any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion’. There is nothing before me from either party propounding or otherwise making reference to this component of the Direction. I am satisfied it is not relevant.
Paragraph 8.1.1(1)(c)
This sub-paragraph precludes me from taking into account sentences imposed on this Applicant for: (1) any violent offending he may have committed against women or children;[33] (2) acts of family violence;[34] and (3) any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[35]
[33]    Direction , para [8.1.1(1)(a)(ii)].
[34]    Ibid, para [8.1.1(1)(a)(iii)].
[35]    Ibid, para [8.1.1(1)(b)(i)].
I am therefore precluded from taking into account the sentences for the three offences imposed on the Applicant on 2 November 2020. This is because those offences were crimes of violence committed against a woman and because they were crimes committed in a domestic or family context.
That said, the Applicant does have other convictions (and sentences) for non-precluded offending. In short compass they may be stated thus:
·12 September 2019: wilful damage: fined $200; ordered to enter into a recognizance in the amount of $450 to be of good behaviour for an operative period of nine months; ordered to pay restitution in the sum of $600;
·31 August 2020: breach of bail and contravention of domestic violence order: ordered into a recognizance in the sum of $100 to be of good behaviour for a period of 12 months;
·23 February 2021: for the following offences the Applicant was convicted and not further punished over and above the custodial term of four months he received for precluded offending on that day.
ocontravention of domestic violence order (x2);
opossess utensils or pipes etc. that had been used;
opossessing dangerous drugs;
obreach of bail condition.
It is well-established that the imposition of a custodial term upon an offender is seen as the last resort in the sentencing hierarchy. The Applicant’s criminal history demonstrates that nearly all of the custodial terms imposed upon him were for precluded offending for the purposes of the Direction. The exception is the sentencing regime imposed on 23 February 2021 in which the five non-precluded offences were punished concurrently with the four month custodial term imposed for the precluded offending.
Apart from this four month concurrently served non-custodial term, the balance of the sentences imposed for this Applicant’s non-precluded offending comprise (1) fines; (2) the entry of recognizances to be of good behaviour for a defined period; and (3) the payment of restitution for wilful damage to property.

It is therefore safe to find that the sentences imposed by the Courts for this Applicant’s non-precluded offending are predominantly non-custodial. Therefore, this sub-paragraph 8.1.1(1)(c) can only moderately militate in favour of a finding that this Applicant’s offending in Australia has been of a very serious nature.
Paragraph 8.1.1(1)(d)
The Applicant first arrived in Australia on 17 June 2007. His movement history indicates that he has made numerous trips to and from Australia (something like over 20 departures) up until 23 July 2013. Material previously submitted on his behalf indicates that:[36]
·he came to Australia 10 years ago as an international student when he was nearly 12 years of age;
·he did schooling at Indooroopilly State high school, Ipswich Grammar and Marist College Ashgrove;
·he completed an associated degree in civil engineering at TAFE Queensland in or around October 2019 with the intention of studying for engineering qualifications at degree level at either Queensland University of Technology or the University of Queensland;
·in September 2019 he enrolled with another education provider for an advanced diploma course in civil construction design but did not complete this course due to the sentencing regime imposed on him on 2 November 2020.
[36] R2,G9.
For the purposes of these Reasons, I will assume the Applicant settled in Australia 10 years ago when he was nearly 12 years of age. His offending history – in sentencing terms – runs from September 2019 to February 2021. In terms of the date of his commission of offences, the criminal history runs from December 2018 to November 2019. On either metric, we are talking about a criminal history that runs for 12-18 months.
That offending history details the commission of 15 separate offences that were dealt with across four different sentencing episodes. The Applicant is currently 25 years of age. He became an adult in Australia in July 2015. All of his offending in this country was therefore committed as an adult. Is the offending frequent? I am of the view that it is. In an offending history that runs for 12-18 months, he committed 15 offences. In approximate terms, this amounts to one offence per month. In sentencing terms, the history amounts to a sentencing episode every 3-4 months. I am satisfied that the Applicant’s offending in Australia has been frequent.
Is there any trend of increasing seriousness in the Applicant’s offending? In the first of his two sentencing episodes, the Applicant was sentenced for offences comprising wilful damage, the contravention of a domestic violence order and for breach of a bail condition. On any objective view, the seriousness of the offending dealt with by the Brisbane District Court on 2 November 2020 was significantly more serious involving, as it did, five convictions for very serious offences of violence committed against a female.
There followed the convictions in February 2021 at the Brisbane Magistrates Court where, again, the Applicant was convicted for an offence of violence perpetrated against a female. This offending was committed in the context of hitherto uncommitted offending in the realm of dangerous drugs, involving the possession of such drugs and paraphernalia associated with the use of such drugs. This offending also involved respective breaches of a bail condition and a domestic violence order.
I am therefore satisfied (and I find) that there is a trend of increasing seriousness inherent in the Applicant’s offending history. The frequency of the Applicant’s offending and the trend of increasing seriousness to be found within it are factors that squarely engage this sub-paragraph 8.1.1(d). Accordingly, it strongly militates in favour of a finding that this Applicant’s offending in Australia has been very serious.
Paragraph 8.1.1(1)(e)
This paragraph compels an enquiry into the cumulative effect of the Applicant’s repeated offending. It can be safely found that the Applicant’s offending is demonstrative of a number of cumulative effects. First, the most significant cumulative effect involves the truly dreadful impact that his offending has had on its female victim. I agree with the Respondent’s contention[37] that the sentencing remarks of His Honour Justice Dearden DCJ made at the sentencing hearing of 2 November 2020 make for sobering reading and that those remarks can only be read in one way.
[37] R3, p 3, para [9].
His Honour’s sentencing remarks are augmented by two additional things. The first is a series of graphic photographic evidence[38] depicting the physical injuries suffered by the victim. The second is the victim’s impact statement which is worth reproducing in full:
[38] R2, pp 441-455.
‘
‘Victim Impact Statement
[Name of victim redacted]
Although it has been 12 months since the domestic violence took place, I am still affected by the impact of the crime daily. I initially experienced immense levels of anxiety and fear for my life and my family’s when the relationship ended. It meant I couldn’t leave my father’s side or be left alone at any point without experiencing serve panic attacks. I started seeing a psychologist as I was having tremendous trouble sleeping at night. I experienced trouble sleeping due to constantly visioning flashback episodes of the events that took place and also experience terrifying nightmares.
I was diagnosed with Post-Traumatic Stress Disorder in October 2019 and continue to see a physiologist to assist in me coping with the trauma. I struggle daily with meeting new people and being in group settings, and leaving the family home for long periods. I am always hyper-vigilant in public situations, feeling as if I am constantly in the flight or fight response relentlessly checking my surroundings.
I struggle to interact and be around men and find it very difficult to relax even when I am around familiar people. I struggle considerably with trusting people and feel as though I have lost faith in humankind. It is hard to find the motivation to want to live as my self-worth has plummeted. This led me to lose a significant amount of weight in a very short amount of time - leaving me with distorted eating and exercising habits. I also find it hard to concentrate and focus which has affected my studies at university. Ultimately setting me back several months in graduating from my science degree which I commenced before the events took place.
Being cut off from all my family and friends for such a long time has meant I have had to rebuild all relationships from virtually scratch. I have had to try my best to rebuild trust within these relationships, especially with my Dad, two older brothers, and Aunty. The crime has had huge negative impact on my family. My father and two brothers still feel fearful of the perpetrator and what the aftermath of the court proceedings could mean. I have felt very lonely and isolated since leaving the relationship and my extreme levels of social anxiety have made it hard to make new friends, while also making it difficult to reconnect with old friends whom I was cut off from throughout the relationship.
The events that occurred at the end of September 2019 left me with bruising all over my body. I was in severe for weeks after escaping. I experienced difficulties with my memory following the strangulation. I had to have a CAT scan along with several MRIs on my brain because medical specialists believed my brain was deprived of oxygen at the time leading to memory loss.
Because my finances were also controlled and monitored for a long period it meant I was unable to work and did not have anything to my name financially. This meant I had to start from scratch once the relationship ended.
I no longer see the world as a safe place, even though I am living in Australia. Knowing I am living in the same city as him makes me still, to this day, very fearful of my life. Despite paying for lots of on-going medical expenses following the violence, I am trying hard to save up enough money to move interstate to hopefully gain some sort of normality. I am truly fearful that he still lives in Brisbane and in close proximity to my home and also to the university where I am currently studying and likely to be for several years to come.
[Name of victim redacted]
Date: 26/10/20’[39]
[Emphasis in original]
[39] R2, pp 456-457.
The second cumulative effect of his offending is to be found in his refusal to accept the lawful authority represented by official documents compelling him to do or refrain from doing something. Domestic violence orders are put in place to prevent the risk of further violence between the original perpetrator of the violence and the aggrieved. The Applicant has contravened domestic violence orders on at least three occasions and has been sentenced for those breaches. An analogous finding can be made with reference to his failure to observe bail conditions previously imposed upon him. He has breached bail conditions on two occasions and has been sentenced for both of those breaches.
A third cumulative effect of the Applicant’s offending derives from the second. His refusal to follow lawful authority extends to his repeated failure to observe the laws and regulation governing the operation of a motor vehicle on Australian carriageways. His traffic history appears in the material.[40] The traffic history runs for a period of three years. It discloses:
·at least six speeding offences;
·one offence of driving while using a mobile telephone (on 15 April 2017);
·driving while under the influence of alcohol with a blood-alcohol reading of .138 which is over two and a half times (almost three times) the legal limit (on 13 December 2018);
·his disqualification from driving for eight months consequent upon the immediately preceding drink-driving offence charged as mid-level but not over the high alcohol drink-driving limit (effective from 13 December 2018);
·the suspension of his driving privileges in or about April 2019 consequent on further significant speeding offences.
[40] Ibid, pp 458-460.
I am satisfied that the Applicant’s traffic history is confirmatory of the predominant theme in his offending of refusing to respect lawful authority. I have previously found that traffic offending has the potential to seriously injure and even claim the lives of other road users:
‘The Applicant’s driving offences may, at first blush, be considered relatively minor when viewed against the balance of his history. However, the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant. Indeed laws that protect road users “go to the essential safety of the community.”[41]
[41] Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1571 at [45] citing: Apire and Minister for Immigration and Border Protection [2014] AATA 193 at [16].
The above-described cumulative effects of the Applicant’s repeated offending must militate in favour of a finding that the totality of his offending in this country has been of a very serious nature.
Paragraphs 8.1.1(1)(f) and (g)
I am not aware of any reference in the material to the Applicant’s provision of false or misleading information to the Respondent’s department. Indeed, the Applicant’s history was committed after the date of his most recent arrival in Australia. Therefore, there is no possibility that he could have falsely completed an incoming passenger card, for example, at the time of seeking re-entry into Australia. Sub-paragraph 8.1.1(1)(f) is not relevant.
Likewise with sub-paragraph 8.1.1(1)(g) the material is silent about any formal warning issued to the Applicant in terms of the impact of his repeated offending on his visa status to remain in this country. This sub-paragraph should be put to one side and rendered irrelevant for present purposes.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have sought to apply each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction. With particular reference to the relevant and applicable paragraphs to which I have referred, I am of the view that the totality of this Applicant’s unlawful conduct in Australia can be readily characterised as very serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that, in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that, in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Paragraph 8.1.2(2)(a) compels an assessment of the nature of the harm to individuals or the Australian community in the event of this Applicant engaging in further criminal or other serious conduct. It can be safely concluded that:
·were the Applicant to offend in a similar brutally violent way against another female victim, one need look no further than the harm suffered by the abovementioned female victim of his offending for an indication of the nature of the harm that any future victim would suffer;
·were the Applicant to again ignore the lawful requirements of official documents compelling him to do or refrain from doing something, then such conduct would involve the consumption of the community’s law enforcement and judicial sentencing apparatuses;
·were the Applicant again to involve himself of wilfully damaging the property of others, those victims would suffer quantifiable economic loss and damage as a result of that conduct;
·were the Applicant again to involve himself in the possession and consumption of illicit drugs, the community’s law enforcement and judicial sentencing apparatuses would again be engaged. Further, any future offending in the realm of illicit drugs would, again, so skew the Applicant’s moral compass such as to pre-dispose him to the commission of further very serious offences;
·were the Applicant again to operate a motor vehicle on an Australian carriageway in flagrant disregard of the laws and regulations governing that activity, other road users could suffer serious and significant injury with quite conceivably fatal consequences.
I am therefore satisfied (and I find) that were this Applicant to reoffend, the nature of the harm to individuals and/or the Australian community would be very serious and would likely involve physical, psychological and quantifiable economic harm to its victims including, quite conceivably, harm to a catastrophic level.
The likelihood of the non-citizen engaging in further criminal or other serious conduct (paragraph 8.1.2(2)(b))
(i) Information and evidence on the risk of the Applicant re-offending
Evidence of the Applicant
In his Personal Circumstances Form (‘PCF’) the Applicant provided the following information as to his belief about the risk of his offending in the future;
‘He believes that after attending and completing counselling and other courses his remorse and appreciation that he has not only caused hurt to his former partner but to his family as well. He feel [sic] ashamed. But he is determined to turn his life around by taking all necessary steps to be a better person that will make his parents proud.’[42]
[42] R2, p 64.
In his statutory declaration made on 12 December 2020 the Applicant said:
‘I say that I pose no risk to the Australian community because besides these relationship-related matter [sic], I have not committed any crime nor am I going to ever do anything wrong.’[43]
[43] Ibid, p 82, para [34].
In his oral evidence at the Hearing before me, the Applicant’s evidence-in-chief was exclusively limited to him confirming the content of a more recent statement he made on 14 November 2022 as being true and correct.[44] The difficulty with this evidence is that the statement of 14 November 2022 says nothing about the Applicant’s recidivist risk.
[44] A2; see also Transcript, p 6, lines 36-47.
During cross-examination, the Applicant was taken to his offending history and accepted his commission of those offences and confirmed that he did not disagree with the content of that history.[45] He further confirmed that he had no issues with any of the offending described in that criminal history.[46] He accepted that in the past he had been a smoker of marijuana once or twice a week and that he had also used methamphetamine in the past.
[45] Ibid, p 7, lines 26-28.
[46] Ibid, p 10, lines 42-45.
It emerged during the cross-examination that the Applicant sought to introduce a level of obfuscation around the evidence concerning the very serious violent conduct resulting in his respective convictions on 2 November 2020. He sought to suggest that, for example, he did not actually choke the victim and instead sought to characterize his conduct in these obfuscatory terms:
‘[THE APPLICANT]: …I - I pushed her away. I didn’t choke her but everything came up to choking and I accept the blame. Not the blame but my actions, sorry. Wrong word. Wrong word I used.
MR BYRNES: So, in terms of you just mentioned the choking there. Can you clarify what you mean about - it seems like you said you didn’t choke her?
THE APPLICANT: I brushed her off by pushing her off - off of me and she feel down the ground and I accept by (indistinct) and things because my mouth was bleeding but in putting my hands and choking her, my hands wasn’t on her neck. But I accept - I accept it. I accepted my actions due to there was mark on her skin and me acting by pushing her away and shoving her which that wasn’t the way - if you love someone you don’t act like that towards them and I’m truly ashamed of my actions with that.
MR BYRNES Just to clarify that, it sounds like you are saying that you did not think you choked her?
THE APPLICANT: I did not lay my hands on her neck. That’s what I am ‑ ‑ ‑
MR BYRNES: It is pretty simple - do you think you choked her?
THE APPLICANT: No, I didn’t, but I accepted the consequences due to the marks on her skin and everything, which - you know, it wasn’t a good look.’[47]
[47] Transcript, p 11, lines 41-47; p 12, lines 1-13.
The Applicant then reconfigured his evidence and purported to attribute his very serious and violent conduct on two other bases: (1) his abuse of illicit substances; and (2) ‘other pressures’. This is what he said in cross-examination:
‘MR BYRNES: Okay. Now, do you think [victim’s name redacted]’ violence towards you gives some excuse to your behaviour?
THE APPLICANT: No, not at all. It was due to me taking substances, too, which I am not blaming me taking the substances for leading to that but it was other (indistinct) stressors from supporting her, helping her, and being there for her.
…
MR BYRNES As part of your answer, you referred to “Other pressures”. Are you saying that was what caused you to inflict violence against [victim’s name redacted]?
THE APPLICANT: No, it was more to do with me trapping everything inside and not really speaking to anyone…
…
MR BYRNES: In terms of the external pressures, I just want to revisit that. At the least [sic] hearing, it seemed like you said that the outside pressure was something that caused you to be violent towards [victim’s name redacted], or to that effect. I am just trying to find out what outside pressures you were facing at the time?
THE APPLICANT: The outside pressures was like - [victim’s name redacted] wasn’t working, for starters, and she was lying to her family by saying she has been living by herself, but she was living under my roof as I was supporting her; paying for rent; going to university to try and finish university; and still supporting her, which the appreciation from her family wasn’t pleasant or likable towards me.’[48]
[48] Ibid, p 12, lines 15-19; Lines 27-30; p 13, lines 25-33.

The Applicant was then asked about the extent whatever counselling he had undertaken. It emerged that the extent of his counselling in PNG involved speaking to parish priests:
‘MR BYRNES: It seems like your interaction with counsellors is something that you consider important to not act violently in the future. Is that fair?
THE APPLICANT: Yes. I understand that speaking to a counsellors and actually going to men’s health meetings like once a week or twice a week to hear other stories and other people’s breakthroughs…
…
MR BYRNES: Have you been undertaking counselling in Papua New Guinea?
THE APPLICANT: I have been undertaking counselling. I have been speaking to parish priests, because there is not much counselling or mental health help over here…
…
MR BYRNES: That’s a Catholic parish priest, is that right?
THE APPLICANT: Yes.
…
MR BYRNES: Yes. Mr Mamatta, I was asking about counselling in Papua New Guinea. I will just continue in that vein. I think mid-question, when the power cut out, I think you were talking about the availability of counselling in Papua New Guinea?
THE APPLICANT: Yes, I was speaking about how private counsellors are far, being in other provinces, and I have tried going in and seeing the doctors, and they have told me that only specialists that they have here are the ones that deal with people in the mental institute, which you need to be diagnosed with something to go and see them. The only recommendation they gave to me was speaking with a parish priest or an elder, so I decided to go speak to my parish priest.
MR BYRNES: Did you try any counselling via the internet or other electronic means?
THE APPLICANT: Yes, I did. I did try calling my old counsellors and things, but their availability slots were really filled up, so I couldn’t get into any contact with many counsellors over here, which led me to talking to my parish priest, and due to commitment with work, I tried to balance that. I would go after work and see the parish priest.’[49]
[49] Transcript, p 14, lines 8-12; lines 22-24; line 24; p 15, lines 35-47; p 16, lines 1-4.
He was then taken to the evidence in the material about him and his current partner having undertaken couples counselling and he responded thus:
‘MR BYRNES: As I understand it, this is a summary of visits you did to the Centre of Human Potential, I think it is?
THE APPLICANT: Yes.
MR BYRNES: That is counselling that you attended in 2021, yes?
THE APPLICANT: Yes. I was doing it through video-calls with Lauren - couples counselling.
MR BYRNES: That’s the couples counselling?
THE APPLICANT: Yes, and I did another counsel there, too, which is on page 84 on the back - with Denzil. That was private, between me and Denzil. (Indistinct words) in detention, with me and Denzil, privately.
MR BYRNES: Let’s just deal with the couples counselling, please. That stops in July 2021, and you did not attend further couples counselling, is that right?
THE APPLICANT: Yes, due to me speaking to the other counsellor.’[50]
[50] Transcript, p 16, lines 9-21.
The Applicant referred to his fulsome participation in couples counselling and also spoke about how that assisted him to obtain insight into his offending and to more appropriately conduct his domestic relationship with his current partner, Ms Lauren David:
‘MR BYRNES: Do you feel like you were participating fully in that couples counselling?
THE APPLICANT: Yes, I was. As I learnt more about myself and got to hear more about Lauren and how she felt, what really meant the most to her, I got to understand her deeply, too, which for me was something which, as I said in our previous conversation, I needed to vent and speak to someone and actually be open with my feelings instead of trapping them in the bottle. For me, it brought me out more; I speak to Lauren every time and I tell her how I feel, what is going on. I open up more than what I did before, and it was thanks to counselling, couples counselling, and programs that we both did that brought us out from our nest and actually focused on what was more important to both of us, which was the girls’ wellbeing and how we can be together as a family - to move past the dilemma that happened when I was young. I was a bit immature, wasn’t really thinking right towards my actions, and every day I try proving to her and telling her that I don’t want to go back to that dark time. No one wants to be treated, which I am truly ashamed of.’[51]
[51] Ibid, p 17, lines 4-17.
The Applicant was then taken to a specific page in the material that referred to the completion of a series of seven courses in August 2021.[52] He agreed that this list comprises the total extent of the courses he had completed.[53]
[52] R2, p 102.
[53] See transcript, p 17, lines 20-24.
He was then taken to a report from a psychologist called Mr Denzil Hildebrand whose report dated 21 August 2021 appears in the material.[54] He agreed that he attended four sessions with Mr Hildebrand.[55] He denied undertaking the abovementioned seven courses (in August 2021) and the four sessions with Mr Hildebrand (also in August 2021) for the specific purposes of compiling evidence of rehabilitation for this matter’s first ventilation in this Tribunal that occurred on 7 and 8 December 2021:
‘MR BYRNES: When you were undertaking these courses and visiting with Mr Hildebrand, was the purpose in doing that to pull together evidence for migration proceedings?
APPLICANT: No, not at all. It was for me to better myself and to focus on my past and how I can actually mould myself so I can be a better man; to be there for Lauren and the two girls.’[56]
[54] R2, pp 84-85.
[55] See transcript, p 17, lines 37-38.
[56] Transcript, p 17, lines 44-46; p 18, lines 1-2.
The Applicant was then taken to a letter from Anglicare addressed to him and dated 21 October 2021. The relevant portion of that letter is as follows:
‘This letter is to confirm that you have contacted Anglicare on 21/10/2021 and expressed an interest in participating in the Living Without Violence group program for men. Due to current high demand, you have been placed on our Waiting List, and will be contacted before the commencement of the next available group, to schedule an initial assessment interview. Assessment interviews generally run over two consecutive sessions.’[57]
[57] R2, p 370.
It transpired that the Applicant had left Australia and gone to PNG prior to having any opportunity to engage with the sessions offered by Anglicare:
‘MR BYRNES: From what I gather from that, you were put on a waiting list for Anglicare counselling?
THE APPLICANT: Yes.
MR BYRNES: Now, did anything come of that?
THE APPLICANT: I am still on the waiting list; they had been calling me every two weeks just to update me where my placing was in the waiting list, and still today I haven’t gotten any call from them. I left Australia and came to Papua New Guinea, and I haven’t gotten any call from them or anything, but I am still on the waiting list as per the emails and messages from them.’[58]
[58] Transcript, p 18, lines 7-15.
The next topic of the Applicant’s cross-examination involved two letters of apology that he respectively wrote to the female victim of his very serious and violent offending and her family. With reference to the apology letter addressed to the victim,[59] that letter is worth quoting in full:
[59] R2, p 229.
‘
‘Apology Letter
To: [Name of victim redacted]
Date: 10/10/2021
Dear [Name of victim redacted]
Please allow me to apologize for what I done and for what I have put you through the duration of our relationship from 2016-2019. Mostly from the timeframe of 2018-2019 My behaviours were extremely inappropriate, violent, selfish, full of pride, immature, and lacked the respect to you and your family/friends who only deserved love, understanding, respect and appreciation.
I am deeply sorry and remorseful for actions that I have put you through in the past and for what you might be going through now. Once again, I am deeply sorry and embarrassed of my own behaviour.
When coming to realisation the seriousness of the charges and my actions I could only imagine the catastrophic impact that I have course on you and your family/friends. It was embarrassing, but I learned that nobody deserves to be treated or to undergo such poor behaviours I portrayed. In the future, I have every intention of curbing my thoughtless actions and learn to adjust my behaviours befitting the environment and situation.
With the behavioural courses I currently am undergoing with weekly psychologist appointments and family counselling with my new partner for the betterment of myself as an individual and for my future of my family and my partner and kids.
Again, I am sorry for my actions, and I hope that we can put this matter behind us. I look forward for you to find peace in your heart and for us to helping each other out in any possible way or from and to have more of a sense of clarity with each other. If you have any thoughts in this, please feel free to share.
Sincerely
Ila Mamatta Jnr’[60]
[Emphasis in original]
[60] R2, p 229.
With reference to this letter the Applicant was asked why he waited until 10 October 2021 to forward this letter, and he responded thus:
‘MR BYRNES: Okay. Now, why did you wait until 10 October 2021 to issue this letter?
THE APPLICANT: The letter was - the letter was written before the date but I reworded it, changed it, and gave it to my lawyer to pass it on. Due to they went - we had zero communication so if I had to send the letter to her mail, as an email or using a third person to talk, I would’ve breached my conditions which it was very hard for me to give the letter towards her without breaching my conditions. I had to speak to a legal operator to actually ask how should I go about it.
…
MR BYRNES: Okay. All right. So, you still could’ve issued this earlier though. Do you accept that?
THE APPLICANT: Yes. Yes. I accept that.’[61]
[61] Transcript, p 19, lines 19-25; lines 45-46
The Applicant denied that his reason for sending this letter of apology (dated 10 October 2021) was to gather evidence for the first ventilation of this matter in this Tribunal which proceeded on 7 and 8 December 2021.[62]
[62] Transcript, p 20, lines 10-11.
The Applicant was then taken to the second abovementioned letter of apology addressed to the victim’s family. It is worth quoting that letter in full:
‘Apology Letter
To: [Name of victim family redacted]
Date: 10/10/21
Dear [Name of victim family redacted]
This is a difficult letter to write, and I am sure it's even harder to receive, but I have to tell you how deeply sorry and remorseful of my actions and catastrophic impact I inflicted on the family and [victim’s name redacted] especially. My violent behaviours were Truly injustice and utterly disgusting, I am truly ashamed of my actions and wholeheartedly take Full accountability of the punishment of my disgraceful actions. I took this more to heart now as a father realise that I did not just hurt [victim’s name redacted], but I permanently damaged the lives of all of you, and all of [victim’s name redacted] friends and co-workers as well.
I'm ashamed and sickened by what I've done. My cruelty and carelessness have caused more pain than I can ever repair. I know that this letter is too little and too late, but I want you to know how much I regret my actions.
I am deeply so sorry for the suffering and pain I've caused you. I truly can only imagine how traumatised she would be mentally, physically and emotionally affected with the trauma I caused therefore I fully Take responsibility in supporting Financially for her medical, counselling, and psychology treatments that [victim’s name redacted] is undergoing as I am truly ashamed and disgusted of myself of my actions. Again, I am deeply sorry of my immature actions with the catastrophic impact I have left on the family and [victim’s name redacted].
Sincerely
Ila Mamatta junior’[63]
[Emphasis in original]
[63] R2, p 230.
In cross-examination, the Applicant spoke about this second letter of apology in these terms:
‘MR BYRNES: I suppose if I ask the same things you would have the same answers about this letter, about the previous letter?
THE APPLICANT: That letter was drafted the same way as - I knew how catastrophic it would be for the family to deal with the aftermath of what I’ve done so I needed to put my sincere to the family too, at the same time to the victim, because they all were under the same trauma that I’ve caused and how I’ve hurt them as a family. So, I really am sorry and ashamed of it.
…
MR BYRNES: I’ll rephrase. Did you do anything other than send these letter in order to show your remorse to [victim’s name redacted]?
THE APPLICANT: I - I did it to show remorse and take ownership of my actions firstly, and secondly I could just imagine like how through my experience of going through gaol and detention how painful it felt, like felt, which for her it would’ve been on a different side which she is going through her own trauma and the pain of what I’ve caused…’[64]
[64] Transcript, p 20, lines 16-22; lines 27-32.
The Applicant also confirmed that he does not have any criminal history in PNG.[65] Due to administrative delay, he was not able to produce a written copy of that criminal history. The Applicant could vaguely recall having a traffic history in PNG, but due to administrative delay he was not able to produce a copy of that PNG traffic history.[66] To my mind, I do not think there will be anything remarkable in the Applicant’s traffic history in PNG. I am prepared to accept his evidence (without documentary proof) that he does not have a criminal history in PNG. He otherwise accepted the traffic history he has compiled in Australia.[67]
[65] See transcript, p 22, lines 43-47; p 23, lines 1-12.
[66] Ibid, p 23, lines 14-41.
[67] Ibid, p 22 , lines 24-41.
(ii) Evidence of the Applicant’s rehabilitation achieved by the time of the Decision
I have earlier discussed the extent of the Applicant’s counselling in PNG involving him speaking to local parish priests in the Catholic Church. I have also referred to whatever attempts he has made to undergo couples counselling with his current partner, Ms David. As will also be recalled, there is reference in the material to a series of rehabilitative sessions the Applicant undertook in August 2021 and of the four sessions he had with Mr Denzil Hildebrand.[68] As will further be recalled, the Applicant made contact with Anglicare for certain counselling but got no further than being placed on their waiting list.[69]
Report of Dr Sam Minge, Clinical Psychologist
[68] R2, p.84.
[69] Ibid, p. 370.
There is before the Tribunal a report from Dr Sam Minge dating from 30 November 2021.[70] Dr Minge assessed the Applicant on 22 and 25 November 2021. Dr Minge conducted a mental state examination and noted that the Applicant denied any history of mental health problems. He thought there were ‘…no indicators of current psychiatric symptoms aside from anxiety about his situation.’[71] Dr Minge made a detailed summary of the Applicant’s personal history and included elements such as ‘childhood and family history’, ‘education and employment history’, ‘relationship history’, ‘mental health and “drug, and alcohol history”’.
[70] Ibid, pp 207-228.
[71] Ibid, p 208, para [11].
In terms of the Applicant’s offending history, Dr Minge made a similarly detailed summary of the Applicant’s ‘forensic and violence history’ and looked at elements such as the Applicant’s ‘indexed domestic violence offences’; and his ‘other offending’. Dr Minge conducted three psychometric testing methodologies upon the Applicant and reached the following provisional diagnosis:
‘Provisional Diagnosis
On the basis of Mr Mamatta’s self-report, psychometric questionnaires, collateral documents, and presentation at interview, I do not consider him to meet criteria for a mental health diagnosis. He met criteria for cannabis dependence in the past but does not currently. He presents with some acute anxiety, but I consider this to likely be situational; that is, his anxiety is an understandable response to his current predicament and will likely resolve when his legal situation does.
Mr Mamatta possesses some dysfunctional personality traits but it is not clear whether these are sufficiently strong to warrant diagnosis of a personality disorder. He has some traits of borderline personality disorder (emotional instability, impulsivity, fear of abandonment in relationships), avoidant personality disorder (fear and anticipation of social rejection, avoidance of social situations, fear of embarrassment), and obsessive-compulsive personality disorder (perfectionism, preoccupation with details, rigidity, and stubbornness about ethical or moral issues).
Mr Mamatta does not exhibit antisocial personality features such as lack of remorse, deceitfulness, or general callous disregard for the wellbeing of others.’[72]
[Emphasis in original]
[72] R2, p 217, paras [73]-[75].
Dr Minge also conducted a ‘domestic violence risk assessment’ on the Applicant. He made this assessment via his use of the ‘Spousal Assault Risk Assessment Guide (“SARA”)’ which is a checklist-type tool that screens for the presence of risk factors related to spousal or family-related assault. Dr Minge thought the Applicant scored as follows on the SARA testing methodology:
‘Mr Mamatta’s total score on the SARA was 14 out of 40. This places him in the ‘moderate or low risk’ group. Compared with a sample of offenders on probation, his score places him in the 62nd percentile (i.e., higher than 62% of the sample).’[73]
[73] R2, p 217, para [80].
Dr Minge then made the following finding about the Applicant’s level of risk of committing further offences in a domestic context:
‘Risk Statement
After considering Mr Mamatta’s domestic violence risk factors along with the results of my assessment, I estimate that he presents a low risk of domestic violence reoffending in future. He committed his offences in the context of a difficult and highly conflictual relationship. Since being remanded and then breaching bail by liking the victim’s Instagram posts, it seems he served the rest of his (approximately one year) bail period without contacting the victim again. He has participated in counselling and completed courses related to domestic violence and anger management. He expresses a willingness to continue undergoing counselling into the future re to ensure he does not reoffend. He does not express attitudes supportive of violence nor antisocial attitudes more generally, and he presents as remorseful and ashamed of his behaviour. He is currently in an intimate relationship that both parties describe as supportive and committed.’[74]
[Emphasis in original]
[74] Ibid, p 218, para [81].
Dr Minge then concluded his report with the following summary and opinion:
‘Summary and Opinion
Mr Mamatta is a 24-year-old man from PNG who is seeking revocation of his visa cancellation. He was convicted of serious domestic violence offences against a partner in November 2020 and it seems he was violent for much of the relationship. After his arrest and charge, he twice breached the conditions of domestic violence orders (and bail) by contacting his ex-partner. He also has a conviction for drug possession as well as for an assault against a stranger that occurred around the time of his domestic violence offending.
Mr Mamatta is assessed as a low risk of reoffending.
Mr Mamatta presents as ashamed and remorseful for his offences.
Mr Mamatta has some dysfunctional personality traits including emotional instability, impulsivity, fear of abandonment in relationships, proneness to anger, anticipation of social rejection, moral rigidity, and perfectionism. These traits have made both intimate and nonintimate relationships difficult for him.
Mr Mamatta does not have antisocial personality disorder and is a generally prosocial man. He is rigidly moralistic and has strong Christian faith and family values.
Mr Mamatta’s offences occurred in the context of a difficult and conflictual relationship with an intimate partner. He was stressed about his academic progress and had recently discovered he was adopted. His grandmother in PNG was dying at the time. The interaction of his personality style, these stressful life events, his youth and relationship inexperience, and his conflictual relationship go some way towards explaining his emotional instability at the time and his use of violence in his relationship.
Mr Mamatta does not demonstrate strong self-awareness generally. This is related to his dysfunctional personality traits and (in my estimation) his low average verbal intelligence. He also has a strong sense of shame about his offending. He therefore struggled to identify the internal dynamics of his domestic violence offences. He was, however, with repeated questioning able to nominate that he felt unappreciated by his then-partner, rejected by her family, resentful about what he perceived as her trying to control him, completely unsure how to deal with her mental health problems and anger outbursts, and unsure how to meet her needs. He acknowledged that he tended to bottle his grievances up and then explode during arguments.’[75]
[Heading emphasis in original; remaining emphasis in the text is by me]
[75] R2, p 219, paras [90]-[95], p 220, para [96].

In her written statement, the Applicant’s mother does not expressly talk about the impact on her in the event of the Applicant’s removal to PNG. She was not called to give oral evidence. In her written statement before the Tribunal she says the following:
‘I know Ila Junior Mamatta is a totally changed person. He will be no harm to his current partner Miss Laura Davis and her two daughters [Child AR] (five years old) and [Child AV](one year old). Ila loves kids and having these two is a blessing to him and our family. Ila is not a threat to the community or the country. Our family does not condone or defend any of his unlawful behaviour toward [victims name redacted]. Our family pass our deepest sympathy for any pain our son has caused her in any way. We hope and pray that she will remain well and stay in God’s grace and blessing. I plead you to allow Ila Juniour Mamatta to stay in Australia to finish his studies and remain with his civil partner Miss Davis and her two daughters. I know Ila is a changed person, I only ask that he be granted a second chance.’[147]
[147] R2, p 179.
It is clear from both the oral and written evidence of Ms David that she would be impacted by the Applicant’s continued absence from Australia in PNG and/or his continued inability to return to Australia. presence in PNG. At the Hearing I inquired whether relocation of Ms David and her two children to PNG was a feasible proposition. She responded thus:
‘SENIOR MEMBER: All right, just one question from me. Let’s just say this doesn’t go well for your partner and he is compelled, I suppose, to stay in Papua New Guinea, have you given thought to relocating there with the children? Because we have heard that you have travelled there?
MS DAVID: Yes, I have been there three times this year and in December I will go again with the girls ‑ ‑ ‑
SENIOR MEMBER: Why?
MS DAVID: Well, because I am committed to the relationship and I love him ‑ ‑ ‑
SENIOR MEMBER: Well, think about the question. If you are going to go back in December - what, to see his family with the girls because is it fair to say that you are now well-known to them?
MS DAVID: Yes, definitely.
SENIOR MEMBER: You are going there in December - next month - to visit his family with your children?
MS DAVID: Yes.
SENIOR MEMBER: Because you consider that you have a close relationship with his family?
MS DAVID: Yes, very. I would love them to meet the girls and for Ila to spend quality time with them for three weeks, but I could not relocate them permanently. I don’t think it is right for them; they deserve to be here in Australia ‑ ‑ ‑
SENIOR MEMBER: Would there be an objection from their father?
MS DAVID: Yes, absolutely. It wouldn’t be okay, but if he is not allowed back then we will devastated; I don’t know how we are going to cope.’[148]
[148] Transcript, p 43, lines 5-29.
Having regard to the evidence of the Applicant’s mother and Ms David, I am safely led to the view (and finding) that the strength, nature and duration of the Applicant’s ties to these two immediate family members in Australia carries a moderate level of weight in favour of setting aside the decision under review. I make this finding conditional on the presumption that both the Applicant’s mother and Ms David are Australian citizens, Australians permanent residents, or people who have a right to remain in Australia indefinitely.
ii. Strength, nature, and duration of “other ties” – length of residence
There are two necessary enquiries referable to the extent of the Applicant’s ‘other ties’ to Australia. The first of those involves the question of how long he has resided in Australia, including whether he came here as a young child. As mentioned earlier, the Applicant first came to Australia in 2007 and then resided here on a more or less permanent basis from 2013 until his voluntary departure in March 2022. It can be found that he has spent something like 11-12 years of his life in Australia. It can be safely found that the Applicant has spent a long period of his life in this country.
I will now make reference to the two tempering sub-elements in paragraph 9.4.1(2)(a) of the Direction. The first of those compels me to allocate less weight if the Applicant began offending soon after arriving here. I have found that he commenced residing in Australia on a more or less permanent basis in 2013. His first conviction in an Australian court occurred in September 2019 for an offence he committed he committed in December 2018. A period of 5-6 years post-arrival should not be construed as being ‘soon after arriving in Australia’. The first of these two tempering sub-elements should be put to one side and rendered neutral.
The second of the two tempering sub-elements at 9.4.1(2)(a) of the Direction compels an assessment of the extent of the Applicant’s positive contributions to the Australian community. As I have mentioned earlier, in his PCF there is no reference the Applicant having engaged in remunerative employment.[149] The PCF contains scant reference to community contributions.[150] He has spent much of his time in Australia as a student. I am mindful of Dr Minge’s comments about the Applicant’s work in Australia to this effect:
‘Mr Mamatta said that his paid employment has chiefly been for his father’s engineering company. He said that he began working for the company in 2015 (age 17 to 18 years). He took a break to work as a bartender in 2016 for about seven months because he was studying hospitality in year 12 and needed to obtain his Responsible Service of Alcohol Certificate. He returned to work for the family business as a soil technician in 2017 until his incarceration in late 2020. He described himself as a hard worker and denied any concerns being raised about his work performance.’[151]
[149] R2, p 65.
[150] Ibid, p 66.
[151] R2, p 210.
The Applicant can, therefore, demonstrate a certain level of participation in remunerative employment here and thus has made some measure of a contribution towards this country’s coffers from which the Australian community is sustained. This second tempering sub-element moderately militates in the Applicant’s favour pursuant to this Other Consideration (d) for the setting aside the decision under review.
Only the second of the two tempering sub-elements assists the Applicant and it confers a moderate but not determinative, level of weight in the Applicant’s favour.
iii. Strength, nature, and duration of “other ties” – family and other social links
The Applicant’s PCF is silent about any other ties he may have to Australia via extended family or other social links. I sought to clarify this issue with the Applicant’s representative during closing submissions. There followed an exchange between me and the Applicant’s representative which resulted in some level of uncertainty about any such ties the Applicant may have. I granted a requested adjournment so that the Applicant’s representative could provide the Tribunal with a list of such ‘other ties’ the Applicant may have to this country.[152]
[152] As will be noted from the Transcript (see generally p 73, lines 7-46; p 74, lines 1-46; p 75, lines 1-31) it was open to the Respondent to object to the receipt of any such list so late in the proceeding. The Tribunal is obliged and thankful for the approach of the Respondent’s representative in agreeing to the adjournment and the provision of the subject list from the Bar table.
When the matter resumed, the Tribunal was provided with the following list of people possibly comprising ‘other ties’.[153] It should be noted that in addition to the below
[153] See Transcript, p 75, lines 41-47; p 76, lines 1-47, p 77, lines 1-46; p 78, lines 1-22.
[154] With the exception of below-mentioned ‘Joshua Ban’.
dot-pointed people to which the Tribunal was referred in closing submissions, the statements of other people who know the Applicant also appear in the material. It seems the below dot-pointed people to whom the Tribunal was referred are based in Australia[154] while the remaining statement-makers whose statements appear in the material are not.
I will go through each of the names provided to the Tribunal when the matter resumed:
·Chaplain John Kewa: whose statement appears in the material and is dated
1 November 2020.[155] The Chaplain has known the Applicant since about 2007. He was shocked to learn of the Applicant’s offending in Australia and thought it was out of character for the Applicant. He says that he speaks with the Applicant ‘at least once a fortnight’. It should be noted that this statement was provided in November 2020 and was intended for use at the Applicant’s sentencing hearing. It has nothing to say about how Mr Kewa would be impacted by the Applicant’s removal. Mr Kewa was not called to give evidence at the Hearing;
[155] R2, p 94.
·Aunty Mary Belle: there is no statement from this person before the Tribunal;
·The children of Aunty Mary Belle: there are no statements from those children before the Tribunal;
·Robert Abernethy: his report appears in the material and is undated.[156] Mr Abernethy says he has known the Applicant for 10 years and is in disbelief about the nature of his convictions. He regards the Applicant as a very kind hearted person with a willingness to help others. He is of the view that ‘if there is any chance Ila can remain in Australia, I believe it will not be regretted. Ila is truly a gentle, kind and humble young man who deserves to be here in Australia’.[157] Mr Abernethy’s statement has nothing to say about how he would be impacted by the Applicant’s removal. Mr Abernethy was not called to give evidence at the Hearing;
·Jim (James) Abernethy: the Tribunal was told there was no statement from this person.[158] I think this is incorrect. There is a two page statement in the material from ‘James Abernethy’ made on 9 November 2021.[159] He has known the Applicant for about 10 years and is aware of the Applicant’s very serious criminal conduct in Australia. He considers the Applicant has experienced contrition and that he ‘…has learnt a terrible lesson’. Mr Abernethy is aware of the Applicant’s domestic relationship with Ms David and considers that he has been rehabilitated from the previous elements that caused him to very seriously offend. Mr Abernethy has career experience in law enforcement and judicial administration. He was not called to give evidence at the Hearing before me;
·Aunty Rivo (wife of Jim/James Abernethy): there is no statement from this person before the Tribunal;
·Mr Ian Smith is a geomorphological engineer based in Brisbane. He has known the Applicant’s family since around 1990 and has enjoyed a continuous relationship between his firm and that of the Applicant’s father since 2002. Mr Smith has provided certain instruction and education to the Applicant in the field of geotechnics. He says the firm/company of the Applicant’s father is the leading company in PNG in the field of geotechnics. Mr Smith was not called to give oral evidence at the Hearing before me;
·Peter Abernethy is currently employed as a public servant in the Queensland Government. He has provided an undated support letter for the Applicant, which appears in the material.[160] He has known the Applicant for over 10 years and was shocked to learn of his criminal offending. He says that he had ‘never heard or seen Ila to be a violent person…’ he does not regard the Applicant as a violent or dishonest person and thinks he would be a ‘valuable individual’ to the Australian community. He has nothing to say about how he would be adversely impacted by the Applicant’s removal. He was not called to give evidence at the Hearing before me;
·Joshua Ban describes himself as a ‘cousin brother’ of the Applicant and says that he has personally known the Applicant for almost his entire life because they grew up together in PNG. Mr Ban’s statement is dated 29 October 2021 and appears in the material.[161] Mr Ban speaks positively about the Applicant but has nothing to say about how he would be adversely impacted by his removal. He was not called to give evidence at the Hearing;
·Gregory Leahy is a long term friend of the Applicant. His statement appears in the material and is dated 22 June 2021.[162] Mr Leahy met the Applicant about 12 years ago when they both attended Indooroopilly State High School. He says ‘I truly believe that Ila staying in Australia will be beneficial for the development and vision of the country.’[163] He says that the Applicant loves Australia and that by being allowed to remain in Australia would allow him to make ‘an impact on the country’.[164] Mr Leahy’s statement is otherwise silent about how he would be adversely affected by the Applicant’s removal from Australia. He was not called to give evidence at the Hearing before me;
·Mr Vijay Vekariya is a high school teacher working in the Queensland education system. His statement dated 19 June 2021 appears in the material.[165] He says that he has known the Applicant for something like 13 years because they both attended Indooroopilly State High School together where they jointly participated in many sporting and cultural events put on by the school. He talks about the Applicant’s attributes ‘…such as kindness, generosity, dedication and mateship…’. He thinks the Applicant would ‘…be a great citizen of this nation’. His statement is otherwise silent on how he would be impacted in the event of the Applicant’s removal. He was not called to give evidence in the Hearing before me;
·Michele Carrett is the mother of Ms David. Her reference dated 10 November 2021 appears in the material.[166] She says ‘I have spoken to Ila numerous times over the past year and he has come across as polite, caring and respectful young man. He has been open and honest with me.’[167] While she speaks of the necessity for the Applicant to be in Australia as the de facto partner of her daughter, her statement has little to say about how she would personally be affected if he is not allowed to remain here. She was not called to give evidence at the Hearing before me.
[156] R2, p 197.
[157] Ibid.
[158] Transcript, p 76, line 40.
[159] R2, pp 184-185.
[160] R2, p 239.
[161] R2, p 200.
[162] R2, p 93.
[163] R2, p 93.
[164] Ibid.
[165] R2, p 95.
[166] R2, p 196.
[167] Ibid.
Having regard to the extent of the evidence around the Applicant’s ‘other ties’ to (1) extended family members; and (2) social links, I am of the view (and I find) that the strength, nature and duration of the Applicant’s ties to these extended family members and social links carries a moderate level of weight in favour of setting aside the decision under review. This finding is conditional upon each of these above dot-pointed social links being Australia citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Impact on Australian business interests
Paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on, “Australian business interests”. I am of the view (and I find) that this component of Other Consideration (d) is not relevant.
Weight allocable to Other Consideration (d): links to the Australian community
With reference to the first part of this Other Consideration (d) (the strength, nature and duration of the Applicant’s ties to Australia), I am of the view – after having analysed its three above referred elements – that the totality of the evidence points to the allocation of a moderate, but not determinative, level of weight in favour of the Applicant. The second part of this Other Consideration (impact on Australian business interests) is not relevant. Overall, the Applicant’s links to the Australian community confers a moderate, but not determinative, level of weight in favour of setting aside the decision under review.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)extent of impediments if removed: confers only a slight, but not determinative amount of weight in favour of setting aside the decision under review;
(c)impact on victims: not relevant; and
(d)links to the Australian community: confers a moderate, but not determinative, level of weight in favour of setting aside the decision under review.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: confers a very heavy level of weight in favour of affirming the decision under review;
·Primary Consideration 2: confers a very heavy level of weight in favour of affirming the decision under review;
·Primary Consideration 3: confers a moderate, but not determinative level of weight in favour of setting aside the decision under review;
·Primary Consideration 4: confers a heavy level of weight in favour of affirming the decision under review;
·I have outlined the weight attributable to the Other Considerations. I am of the view (and I find) that the combined weights I have allocated to each of Primary Consideration 3 and Other Considerations (b) and (d), respectively, are not sufficient to outweigh the combined weight I have allocated to Primary Considerations 1, 2 and 4;
·A holistic view of the evidence relevant to the Primary and Other Considerations in the Direction therefore favours affirmation of the Respondent’s decision under review made on 11 October 2021.
Decision
Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent, dated 11 October 2021 not to revoke the mandatory cancellation of the Applicant’s Class TU Subclass 500 Student visa.

I certify that the preceding 228 (two hundred and twenty-eight ) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

.............................[SGD].......................................
Associate
Dated: 10 February 2023

Date(s) of hearing: 17 November 2022

Counsel for the Applicant: Arron Hartnett

Solicitor for the Applicant: Nilesh Nadan

MyVisa (Immigration Law Advisory)

Counsel for the Respondent: James Byrnes

Solicitor for the Respondent: Chris West

Sparke Helmore Lawyers
Annexure A

EXHIBIT DESCRIPTION OF EVIDENCE DATE OF DOCUMENT DATE RECEIVED

R1 ~~Section 501 G-Documents (bookmarked G1- G28, paged 1 - 164)~~ ~~Various~~ ~~31 August 2022~~[168]

R2 Respondent’s Remittal Bundle (bookmarked 1-46, paged 1-810) Various 31 August 2022

A1 Applicant’s Statement of Facts, Issues and Contentions 28 September 2022 28 September 2022

R3 Respondent’s Statement of Facts, Issues and Contentions (paged 1- 23) 24 October 2022 24 October 2022

A2 Applicant’s Statement 14 November 2022 14 November 2022

A3 Ms Lauren David’s Statement 14 November 2022 14 November 2022

A4 Report by Department of Foreign Affairs and Trade on Papua New Guinea 6 September 2022 14 November 2022

A5 Further submissions by the Applicant (paged 1-4) Undated 14 November 2022

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
R1	~~Section 501 G-Documents (bookmarked G1- G28, paged 1 - 164)~~	~~Various~~	~~31 August 2022~~[168]
R2	Respondent’s Remittal Bundle (bookmarked 1-46, paged 1-810)	Various	31 August 2022
A1	Applicant’s Statement of Facts, Issues and Contentions	28 September 2022	28 September 2022
R3	Respondent’s Statement of Facts, Issues and Contentions (paged 1- 23)	24 October 2022	24 October 2022
A2	Applicant’s Statement	14 November 2022	14 November 2022
A3	Ms Lauren David’s Statement	14 November 2022	14 November 2022
A4	Report by Department of Foreign Affairs and Trade on Papua New Guinea	6 September 2022	14 November 2022
A5	Further submissions by the Applicant (paged 1-4)	Undated	14 November 2022

[168] See Transcript, p 45, lines 18-26 as to the basis of why this Exhibit R1 was deleted from the Exhibit List.

Court	Date	Offence	Result
Brisbane Magistrates Court	23/02/2021	Common assault	Conviction recorded Sentenced imprisonment: 4MO To be suspended for: 9MO
Brisbane Magistrates Court	23/02/2021	Contravention of domestic violence order Possess utensils or pipes etc that had been used Possessing dangerous drugs Contravention of domestic violence order Breach of bail conditions	Concurrent on all charges Conviction recorded Not further punished
Brisbane District Court	02/11/2020	Choking suffocation strangulation domestic relationship – domestic violence offence	Conviction recorded Sentenced imprisonment: 2Y 6MO To be suspended for: 3Y after serving: 6MO
		Assaults occasioning bodily harm – domestic violence offence	On all charges conviction recorded Sentenced imprisonment: 18MO To be suspended for: 3Y after serving: 6MO
		Common assault domestic violence offence	Conviction recorded Sentenced imprisonment: 6MO all terms of imprisonment to be served concurrently declare that time spent in pre-sentence custody be deemed as time already served under this sentence: 30 DAYS
Brisbane Magistrates Court	31/08/2020	Breach of bail condition Contravention of domestic violence order	On all charges no conviction recorded recognisance: $100.00 good behaviour period: 12MO
Brisbane Magistrates Court	12/09/2019	Wilful damage	No conviction recorded Fined: $200.00 Time to pay: 28D Recognisance: $450.00 Good behaviour period: 9MO Restitution: $600.00 Time to pay: 1MO

Date(s) of hearing:	17 November 2022
Counsel for the Applicant:	Arron Hartnett
Solicitor for the Applicant:	Nilesh Nadan
MyVisa (Immigration Law Advisory)
Counsel for the Respondent:	James Byrnes
Solicitor for the Respondent:	Chris West
Sparke Helmore Lawyers