Marson (Hanley) and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 2114

Marson (Hanley) and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 2114 (27 May 2024)
Division:GENERAL DIVISION
File Number: 2024/1514
Re:Mark Marson (Hanley)
APPLICANT

Minister for Immigration, Citizenship and Multicultural AffairsAnd
RESPONDENT

DECISION
Tribunal:Member D. Cosgrave
Date:27 May 2024
Date of written reasons: 27 June 2024
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 4 March 2024 not to revoke the cancellation of Mr Marson’s visa.
.............[SGD].............
Member D. Cosgrave
Catchwords
MIGRATION – mandatory visa cancellation – failure to pass character test – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 99 applied – Class BS Subclass 801 Partner visa – United Kingdom (UK) Citizen – Tribunal finding risk of reoffending unacceptable – where Applicant has limited ties in Australia – Tribunal finding factors in favour of revocation outweighed by those against revocation – Tribunal finding there is not another reason to revoke the mandatory cancellation decision – decision under review affirmed
Legislation
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
Cases
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
Bartlett v Minister for Immigration and Border Protection [2017] AATA 1561
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Bushell v Repatriation Commission (1992) 175 CLR 408
Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588
Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870
Dharma v Minister for Home Affairs [2018] AATA 2757
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Garland v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 144
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
GJJF v Minister for Home Affairs (Migration) [2019] AATA 930
Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Kayo Rerekura v Minister for Home Affairs (Migration) [2019] AATA 153
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs [2022] HCA 26
Roberts v Minister for Home Affairs (Migration) [2018] AATA 3970
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Tera Euna v Minister for Immigration and Border Protection [2016] AATA 301
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Secondary Materials
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Member D. Cosgrave
27 June 2024
INTRODUCTION

Mr Marson seeks review of the Respondent’s delegate’s 4 March 2024 decision not to revoke the mandatory cancellation of his Class BS Subclass 801 Partner visa (the Visa).[1]
[1] Exhibit R1: Section 501 G-Documents, page 5.
This matter was originally set down for hearing on 13 May 2024 and 14 May 2024.
On 9 May 2024, the Respondent’s representative raised a procedural fairness point with the Tribunal after Mr Marson disclosed in an email to the Tribunal that he could have produced more evidence with additional time.
On 10 May 2024, the Tribunal convened a directions hearing and clarified that Mr Marson could produce more evidence. As a consequence of this, the original hearing date was vacated and the matter was re-listed to be heard on 20 May 2024 and 21 May 2024.[2]
[2] Please see ‘Annexure B’ for a detailed view of the procedural changes that occurred before the hearing.
On 21 May 2024, based on the testimony already heard, the Tribunal decided to call Mr Marson’s mother, Mrs Dodson, as a witness. The hearing was extended by two more days. Mrs Dodson gave oral evidence of the third day of the hearing and parties gave closing submission on the fourth day.
The hearing was held at the Brisbane Registry on 20 and 21 May 2024. The third and fourth day of the hearing proceeded via audio visual link. Mr Marson represented himself. Mr Zhang of Clayton Utz represented the Respondent.
On 27 May 2024, the Tribunal met its 84-day statutory obligation[3] by providing a short form decision in which it affirmed the decision under review.[4] The Tribunal now gives its reasons for its decision.
[3] Pursuant to s 500(6L) of the Migration Act 1958 (Cth).
[4] Khalil v Minister for Home Affairs (2019) 271 FCR 326, [41] – ⁠[48].
Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.
FACTS
Mr Marson is a 48-year-old[5] citizen of the United Kingdom (UK) who first arrived in Australia on 24 April 2015.[6]
[5] Exhibit R1: G2, page 25.
[6] Exhibit R1: G5, page 232.
On 7 September 2023, Mr Marson's Visa was cancelled under s501(3A) of the Migration Act 1958 (Cth) (the Act) [7] because he did not pass the character test given his ‘substantial criminal record’.[8]
[7] Exhibit R1: G2, page 7.
[8] As defined in ss 501(6)(a) and 501(7)(c) of the Act.
Section 501(7)(c) of the Act provides that for the purposes of the character test a person has a 'substantial criminal record' if the person has been sentenced to a term of imprisonment of 12 months or more.
On 20 April 2023, Mr Marson was convicted of four offences (the Index Offences) and sentenced to 12 months’ imprisonment for each offence, the sentences running concurrently.[9]
[9] Exhibit R1: G2, page 26.
OFFENDING HISTORY
Mr Marson’s Index Offences are:
·Contravention Of Domestic Violence Order (On 5 December 2022)
·Obstruct Police Officer (On 6 December 2022)
·Serious Assault Police Officer Whilst Pretending / Is Armed With A Weapon (On 6 December 2022)
·Contravention Of Domestic Violence Order (On 6 December 2022).[10]
[10] Exhibit R1: G2, page 26.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Migration Act 1958 (Cth) (the Act) relevantly provides that the Minister must cancel a visa that has been granted to a person if:
·the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a), on the basis of paragraph (7)(a), (b) or (c); and
·the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Under s 501(6)(a) of the Act, a person will not pass the character test if they have ‘a substantial criminal record’. Section 501(7)(c) of the Act relevantly provides that a person has a substantial criminal record if they have ‘been sentenced to a term of imprisonment of 12 months or more’. On 20 April 2023, Mr Marson was sentenced to imprisonment for four concurrent terms of 12 months.
On 4 October 2023 Mr Marson made written representations to the Respondent requesting revocation of the cancellation of his visa (revocation request). Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act which provides:
The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The Respondent decided not to revoke the cancellation (the reviewable decision). Mr Marson lodged an application in the Tribunal for review of that decision. The Tribunal has jurisdiction to review the decision pursuant to s 500(1)(BA) of the Act.
The Tribunal is satisfied that Mr Marson made the representations required by s 501CA(4)(a) of the Act and that he does not pass the character test. Thus, the sole issue is whether there is another reason to revoke the mandatory cancellation of Mr Marson’s visa. If there is, the Tribunal should set aside the original decision.[11]
[11] Minister for Home Affairs v Buadromo [2018] FCAFC 151.
In applying s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) applies.
For the purposes of deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several guiding principles. Those principles, as far as they relate to this matter, follow:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) [sic] (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
This matter enlivened all the considerations in paragraphs 8 and 9.
Paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations, and paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.
MATTERS FOR CONSIDERATION
Mr Marson’s Visa was cancelled on the basis that he had failed the character test once the delegate considered and then applied section 501(6)(a).
The first issue for the Tribunal to consider is whether Mr Marson fails to pass the character test.
If Mr Marson fails the character test, then the second issue for the Tribunal to consider under section 501CA(4)(b)(ii) of the Act is whether the Tribunal is satisfied of there being another reason to revoke the cancellation decision.[12] The Tribunal ‘stands in the shoes of the original decision-maker’ but with regard for the situation as at the time of its consideration.[13]
[12] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
[13] Nathanson v Minister for Home Affairs [2022] HCA 26 (‘Nathanson’); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40], 315 [100], 324-325 [134]; Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ).
To assist its assessment, the Tribunal has created the following chronology of events, including Mr Marson’s convictions, visa cancellations and rehabilitation efforts:

Date

Event

22 November 2022

Mr Marson’s former wife applies for a protection order. In applying for a protection order she alleges verbal and emotional abuse, sexual abuse, financial abuse, as well as alleging that Mr Marson attempted to kill his father in the United Kingdom in June 2022. A temporary protection order is granted. The Magistrates Court of Queensland at Brisbane grants a Temporary Domestic Violence (DV) protection order against Mr Marson.[14]

29 November 2022

Mr Marson was served with a copy of the 22 November 2022 DV protection order by a police officer.[15]

5 – 6 December 2022

Mr Marson conducts a protest by remaining at the former matrimonial home in Labrador after 3 December 2022 when he was required under the DV protection order to leave, which resulted in the Index Offences.[16]

7 December 2022

Mr Marson is charged and taken into custody.[17]

16 February 2023

The Southport Magistrates Court varies the DV protection order.[18]

20 April 2023

Mr Marson is convicted and sentenced. As he has served 128 Days of pre-sentence custody he is released on parole.[19] The Southport Magistrates Court also issues a further DV protection order.

21 April 2023

Mr Marson’s parole order is amended to include additional conditions pertaining to substance use, mental health, domestic and family violence, and accommodation. Mr Marson did not agree to or sign these conditions.[20]

16 May 2023

The Southport Magistrates Court varies the DV protection order, which is valid until 2028.[21]

28 June 2023

The Parole Board Queensland suspends the Mr Marson's Parole Order.[22]

24 July 2023

Mr Marson is returned to custody for breach of parole.[23]

22 November 2023

Mr Marson is discharged to immigration detention.[24]

[14] Exhibit R6: Pages 30-42 and Exhibit R1: G2, page 9.
[15] Exhibit R1: G2, page 9.
[16] Exhibit R1: G2, page 27.
[17] Exhibit R1: G2, page 26.
[18] Exhibit R6: SM2, pages 168 – 171.
[19] Exhibit R1: G2, page 27 and Exhibit R6: Pages 2-4.
[20] Exhibit R1: G2, page 140.
[21] Exhibit R1: G2, page 105 and Exhibit R6: Page 1-2.
[22] Exhibit R1: G2, page 140.
[23] Exhibit R1: G2, pages 11, 55 & 140.
[24] Exhibit R1: G2, page 140.
IS THERE ANOTHER REASON WHY MR MARSON’S VISA CANCELLATION SHOULD BE REVOKED?

When considering whether there is another reason, the Tribunal must comply with the Direction.[25] In doing so, the Tribunal has regard to the Federal Court’s identification of principles in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 at [27], approving the reasoning in Viane.[26]
[25] See Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, [38].
[26] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
THE DIRECTION
The Direction, as referenced above, contains mandatory and aspirational considerations guiding the exercise of statutory power under the Act.[27]
[27] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, at [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, at [45].
The Tribunal is not precluded from finding that a consideration specified under Paragraph 9 of the Direction has equivalent or greater weight than a consideration specified under Paragraph 8 of the Direction. This depends on each matter’s specific circumstances.[28] The weighing process is substantively left to the individual decision maker exercising the relevant power under section 501 of the Act.[29]
[28] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
[29] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57].
EVIDENCE
The following is an overview of the evidence tendered or adduced before the Tribunal. The evidence referred to below includes documentary evidence collated for the purposes of section 501G of the Act, documents tendered by the Respondent and Mr Marson and testimony given by Mr Marson, his former wife, M, and his mother, Mrs Dodson.
Documentary Evidence
The Tribunal received written evidence during the hearing, which is attached to this Decision and marked ‘Annexure A’.
The Tribunal’s assessment of the witnesses
As noted above, the Tribunal heard oral testimony from Mr Marson, his former wife, M, and his mother, Mrs Dodson.
Mrs Dodson
Mrs Dodson gave responsive, careful, and considered evidence. The absence of an express and unambiguous declaration of support on her part relative to M’s allegations about the events on 22 June 2022 in the UK is consequently of some weight.
Mr Marson and M
The Tribunal finds it necessary to assess the credit and reliability of both Mr Marson and M circumspectly. Their respective testimony showed that they have different views of events. This situation is aggravated by the absence at many points of either contemporaneous documentary evidence or testimony from more impartial witnesses.

As to reliability, the Tribunal must not only take account of the well-known general features of human memory, but also the mental state of both Mr Marson and M in what were likely times of great stress for both of them.
Before stating its finding on the credibility and reliability of Mr Marson and M as witnesses, the Tribunal notes the following examples of oral testimony that it considered in particular regarding each of Mr Marson and M, as well as their separate views on events they shared, before making its findings.
Mr Marson testifying about his 27 March 2016 trespass charge:[30]
[30] Exhibit R6: SM1, pages 7 – 8.
·In examination-in-chief:
‘Tribunal: Could you tell the tribunal the background to the 2016 trespassing offence in Brisbane?
Mr Marson: Yes, I had been walking around Brisbane – I think there’s a pool near there that I used to go to. Witness M used to go to it as well. It’s a 50-metre pool. And there was a big, abandoned house, which I was quite baffled by, because it had been abandoned for a long time. So I was just – I was hanging out there, and I don’t know, just trying to figure out what was happening, and the police turned up. Yes.
Tribunal: The police alleged that you told them that you knew the owner or that you were there to do a job for the owner?
Mr Marson: Well, I have spoken to some guy about it, but that wasn’t I think – that came to nothing.
Tribunal: Right. And you had the key to the padlock on the back door?
Mr Marson: Yes. I mean, it was completely abandoned. It was baffling. And deteriorating. Yes. They took that off me without asking.’[31]
[31] Transcript, page 12, line 42 – page13, line 10.
·In cross-examination:
‘Mr Zhang: Were you actually asked to fix things at the house?
Mr Marson: The guy in question, I can’t remember what I said to him but I don’t think he had – in hindsight, I don’t think he had anything to do with the owner. That’s why they brought the trespass charge. But they had to drop it. They had to …
Mr Zhang: So were you asked by anyone to fix up things inside the house?
Mr Marson: I’m assuming it was by the guy I spoke to, but I can’t remember what exactly we said. It was a long time ago. But I don’t think he had any connection with the owner, that’s why…
Mr Zhang: So you’re suggesting that someone who had no connection with the owner asked you to go inside and fix things inside the house. Is that what you’re saying?
Mr Marson: I think that’s what happened. If that’s what they’re saying – like I said, it was a long time ago, I don’t remember what we said exactly to each other, yes. Yes, but they had to drop the charge; they were going to lose.
Mr Zhang: You had a key to the padlock?
Mr Marson: Yes.
Mr Zhang: How did you acquire the key to the padlock?
Mr Marson: I screwed the padlock onto the door.
Mr Zhang: You screwed the padlock onto the door?
Mr Marson: Yes. It was abandoned. It was derelict. I mean, at the hasp – it’s called a hasp. That’s the thing that I …
Tribunal: It’s the metal device that goes over a little metal loop and you - - -?
Mr Marson: That’s it. …
Tribunal: put the padlock through the loop once the hasp is shut, is that correct?
Mr Marson: Correct, yes. They – yes. like I said, they had to drop that charge; there was a fundamental flaw in their case. They don’t – they wouldn’t have said what that was. They wouldn’t explain that.
Mr Zhang: So initially you said you were walking around in Brisbane, you were trying to figure out what was happening in this house. Did you also just have a lock with you at the time that you were able to fix onto the property whilst you were just walking around?
Mr Marson: No.
Mr Zhang: No, okay. So were you actually just walking around or did you have some purpose in mind that you were coming to this house to fix a lock onto the house?
Mr Marson: After the – after I met that guy, you know, it was a very brief conversation but it was – it happened after that.
Mr Zhang: So were you just walking around casually with a lock and some tools to fix the lock?
Mr Marson: Are you asking if I took possession of the property?
Mr Zhang: No, no, no. The question was were you just walking around with the lock?
Mr Marson: No. I don’t think it all happened on the same day, yes. I don’t know why I gave that impression. But they don’t say why they dropped the charges, that’s the thing, yes. They were going to lose.
Mr Zhang: Was your intention to just take possession of the property, is that why you affixed the lock?
Mr Marson: It was an investigation. You know, it was completely baffling. This house was very derelict, yes. That’s the best word for it, an investigation.’[32]
[32] Transcript, page 56, line 24 – page 57, line 30.
Mr Marson giving evidence as to the events leading to the Index Offences:
‘Tribunal: Okay. And you and your former spouse spoke previously that day when she came round to the house?
Mr Marson: So Witness M turned up one day and, you know, we almost haven’t had a conversation, but we did. She got angry and she phoned the police. So the police turned up the next day, and yes. So like I said, I’d been trying to figure out a way that I could live and still keep my job, it just wasn’t possible, and I was very annoyed that they hadn’t taken all these factors into account.
Tribunal: Can you recall what you said to your former spouse when she – at that time?
Mr Marson: Yes. I said, ‘Why are you doing this, Witness M?’, and she said, ‘You’ve been completely unreasonable since the beginning’, and to me, that’s projection. I think she’s the one being unreasonable. Yes.’[33]
[33] Transcript, page 18, lines 29 – 43.
Mr Marson on his actions during the Index Offences:
‘Mr Zhang: So you barricaded the door with pieces of wood, is that correct?
Mr Marson Yes, yes, and screws, yes.
Mr Zhang : So why did you do that?
Mr Marson: Like I said, it was instinctive. You get very defensive if you’re under attack, whatever the reason is. You can’t re-analyse it more. I don’t think it can be analysed much more than that, yes. Once these things begin they have a life of their own. The trick is to not be in that situation in the first place. And I have said that, you know, I will avoid such situations. Because it’s already happened once, it does not need to happen again. So if it needed to happen in the first place, I don’t know, but it certainly doesn’t need to happen again.’[34]
[34] Transcript, page 34, line 39 – page 35, line 2.
and
‘Mr Zhang: I suppose you also said in your statement that the siege can only be viewed as an act of symbolic(indistinct) [defence].[35] That was in your reply (indistinct), I believe. What do you mean by that?
[35] Exhibit A5: Statement in Response to Home Affairs Final Submission, page 14.
Mr Marson: Yes.
Mr Zhang: Let me frame it differently. Are you saying that the siege was somehow justified?
Mr Marson: So what I think I meant by that was that what Witness M was engaged in was coercive control, to use a fashionable term. And the – I think one of the ones on your team, the lawyers on your team said that he saw my actions during the siege as coercive control, but actually they were in response to coercive control, so that’s what I was protesting against. I wouldn’t say it was justified. I wouldn’t say it was unjustified. It was an instinct. I tried to – I thought of every possible way to, like, leave the house and still maintain my job, but I just couldn’t figure out how to do that. So yes. So the morality of it, I have no idea. That’s someone else’s question. No, I’ve done – I had a prison sentence. I’ve served a prison sentence. I have no interest in doing anything like that again, for any reason. It’s part of the historical record now, I suppose. I don’t know what more to say about it, you know.’[36]
and
‘Mr Zhang: Who would you say have been impacted by your conduct on the 5th to 7 December?
Mr Marson: Well, there’s Witness M and there’s Child L. Child L would be less impacted if Witness M had facilitated contact between me and Child L. During the parole period, by showing her my letters I maybe could have brought Child L to jail. That would have been great. That would have been lovely. She didn’t do any of that. Has it impacted Witness M? I don’t know. Is she any happier because of the way it’s turned out? Again, I don’t know. Her emotions are up and down.
Mr Zhang: For example, you don’t accept that you have impacted on the neighbours or the police or the first response personnel who attended on the day?
Mr Marson: I think it was – well, when I got arrested, the first thing I said was ‘This is a good training exercise for you guys.’
Mr Zhang: Sorry, you said that?
Mr Marson: I said that to the TRO. I said – because one of them landed on me with a shield, and I just said ‘This is a good training exercise for you guys.’ So I don’t think it negatively affected any of the responders who were there. I think it was either a training exercise or it was overtime or it was part of their job. And - - -
Mr Zhang: So you felt like it was a drill. It wasn’t quite serious to you. Is that what you’re suggesting?
Mr Marson: Well, it wasn’t. It wasn’t serious, yes. Protests are not meant to be serious. But yes, it was a one-off event. Whether it’s got any broader significance, I just don’t know. Yes, because it’s not an area that I spend much time thinking about.’[37]
[36] Transcript, page 36, lines 9 – 26.
[37] Transcript, page 38, line 29 – page 39, line 6.
Mr Marson in relation to his alcohol consumption at the time of the Index Offences and the impact of his Index Offences on his neighbours:
‘Tribunal: Over that time of the siege, the 5th and the 6th, how much alcohol do you think you had consumed?
Mr Marson: Yes, a lot. Yes.
Tribunal: Any estimate?
Mr Marson: I wasn’t holding back, you know, it was – it could’ve been five or six cans of beer, maybe wine on top of that. Yes. Probably whiskey as well, you know, a lot. Yes.
Tribunal: And what do you think your neighbours there in Labrador felt having to be evacuated at that time?
Mr Marson: Well, I hope they weren’t worried, you know. And it’s a break from the routine. Maybe the children found it a bit exciting, if I was a child, I probably would. But I’d hope they weren’t worried, you know. Nothing was directed at them. We got on well with our neighbours. Yes.’[38]
[38] Transcript, page 19, lines 32 – 43.
Mr Marson in relation to his breaches of parole:
‘Mr Zhang: So then you went to – you were arrested and the matter was heard in court. On 20 April, you were then released on parole. Is that correct?
Mr Marson: Yes, yes.
Mr Zhang: Yes. And where did you actually live after you were released on parole?
Mr Marson: Various addresses. You know, nothing that could be checked by the parole board. You know, like I said, it was difficult to stay at Nick Ralph’s place. He was unreliable. Yes. It was quite disappointing, actually. Yes. But then I was going to get arrested when they cancelled my visa anyway, so the only difference was it was a few – it was a month or two earlier, so yes.
Mr Zhang: So at the time on the – sorry, not at the time, but on 11 May, you were asked about your co-resident’s contact details, and you didn’t provide these details to the parole board. Do you accept that?
Mr Marson: Well, I can’t remember exactly what happened. I’m not sure whose number they wanted. It was Nick or his ex-wife. I can’t remember the details, yes. I think – were they married? I’m not even sure if they were married, but they certainly had children. Yes.
Mr Zhang: Do you accept that you were asked for the contact details of your co-residents?
Mr Marson: Was I asked?
Mr Zhang: On 11 May 2023?
Mr Marson: Of course, yes, they would ask.
Mr Zhang: And you failed to provide these details?
Mr Marson: Well, I can’t remember why I gave them – why I didn’t, but it – I mean, I can’t dispute the breach. All I can say is that I’m not sure you can claim the moral high ground if you make someone homeless and then complain about their housing arrangements.
Mr Zhang: So - - -?
Mr Marson: Yes. So there you go.
Mr Zhang: Let me put this formally to you: so on page 76 of SM2, there is a reference that said ‘On 11 May 2023,’ and then it goes on to say ‘Mr Marson was again asked on this date for his co-resident details, which he further failed to provide.’ Do you have any comments?
Mr Marson: Yes, I mean, I’m not disputing – the breach was legal, yes. The claim that there had been a breach was legal.
Mr Zhang: As in - - -?
Mr Marson: It was above board. They were within their legal rights to claim that I had breached the parole, yes.
Mr Zhang: And then on 17 May, you were sent a text message again requesting details of the co-resident and you didn’t do that. Is that correct?
Mr Marson: I mean, I’m not going to dispute that. Like I said, I was trying to get a job so I could earn money before arranging alternative accommodation. You know, if – how do you deal with this kind of uncertain housing situation? The thing is, in the future, it’s not really – I would argue it’s not applicable because I’ve got – there are six weeks still on parole. So if I get out of detention, six weeks – I could stay in a motel for six weeks. There’s no big deal. Yes. It was a big deal before because I had run out of money. So you can’t do that if you have run out of money, but it wouldn’t be an issue in the future, yes.
Mr Zhang: So would it be fair to say you were a repeatedly ask to provide details of your co-resident, but you didn’t provide those details?
Mr Marson: What can I say? I’d been made homeless. I’d been made homeless. I mean - - -
Mr Zhang: Sorry, can you not answer the question? Would it be correct to say that?
Mr Marson: I don’t know. I don’t know. I can’t remember. I mean, I’m pretty sure they had his number. He wouldn’t necessarily answer his phone if it was an unrecognised number, and the moment he found out it was the parole board – no, the – yes, the parole office, he would have hung up anyway. I don’t even know if they tried to phone him. Yes.
Mr Zhang: So on 7 June, you met up – on about 7 June, you met up with a parole officer and you reported that you were still living at 85 85 Begonia Court. That’s in Browns Plains. Is that correct? Do you recall that?
Mr Marson: I don’t recall that.
Mr Zhang: Do you dispute that?
Mr Marson: I don’t dispute it or recall it. This is a long time ago.’[39]
[39] Transcript, page 40, line 8 – page 41, line 6.
One example of the divergent views of Mr Marson and M arises from their respective evidence on the details of Mr Marson’s claim that he was a stay-at-home father.
Mr Marson says
‘Tribunal: When you were looking after Child L when she was an infant - - -?
Mr Marson: Yes.
Tribunal: I presume that’s from when your former spouse went back to work after delivering Child L till later - - -?
Mr Marson: Yes. So that would – I mean, we were both carers before that, and after that I was the daytime carer.
Tribunal: Carer?
Mr Marson: I would say the sole carer. No, I would say the primary carer, but Witness M would disagree with that, but you know. We both were contributed. Yes.
Tribunal: Okay. Could you tell the tribunal what you did? Describe your typical day with Child L, and I appreciate there’d be a lot of change because they go from a lot from - - -?
Mr Marson: Yes.
Tribunal: preborn through to infant?
Mr Marson: Yes. So we started off with a few days – Child L was at kinder for a few days, after she was one years old. And then eventually that became four days, and it was the minimum subsidised hours that we could get. And my philosophy on that is that young children benefit from the social aspects of kindergarten, but they don’t – apart from that, they only need that for a few hours per day to get those benefits. I mean, what they – I think what they mainly benefit from is the close personal attention that a parent can give them, so, and, you know, we had the subsidised hours, but you know, any more than that it – we tried to not to go with that. So in other words, a typical day would be: we’d wake up, I always made coffee and brought it to Witness M, and so we’d have coffee in bed. I did that throughout our marriage. Often, I’d make breakfast. So, you know, we had – we often had avocadoes, so avocado, feta on – smashed on toast. That – Child L could join in with that, obviously. And then I would take Witness M to work and then come back to the house, and then play and hang out with Child L, and then I’d take her to kinder. And I’d – one – we did – we got into a place at a local kinder, [kindergarten name]. Before that, for a while we were then we switched to [kindergarten name], because it was very convenient, and there’s a very nice walk to take her to kinder. It was through the park land. So I tried to walk there with her in the pram, or she would be on my shoulders, there and back every day. I often took her in late, because – you know, an hour or two late, because, like I said, I think she benefits from close personal attention. So she would go to the kinder, then I would do housework. There was – there’s a project I was working on at the same time, I think I mentioned in some of my papers, but academic work. I think that was quite valuable, you know, in the sense that I had spare time, you know, it was a good way of using it. And then in the afternoon, I would pick up Child L first, because of, you know, kinder, and it was quite early. And we would go to the – I would take her back, and I would often take her to the pool in our complex. And I think I mentioned this in one of the emails, she would suggest this herself, because she loved it. She would come up to me with her swimming gear and then I’d take her to the pool. And then, you know, we’d hang out there for a bit, and then I would go to pick up Witness M. It didn’t always follow that pattern, because sometimes Witness M finished early, so I would pick up Child L and, you know, go to a park between kinder and [workplace] where Witness M works, and, you know, we’d hang out there for twenty minutes, and then I’d go and pick up Witness M, and then we’d go back to the house. That actually saved us quite a bit of money, because Witness M didn’t have to pay for parking. And then in the evening – so that was – so four days a week was Child L’s schedule at kinder. So there’s one day when during the week, when I could take her somewhere on a trip to some beach or to Sea World. We got a year pass to Sea World. Sometimes I took – there were playgrounds, there was one in Nerang, which is like an adventure playground for kids, so I often took her there. Helensvale had events for small kids, I took her there as well – the shopping centre. A few times I took her up to Tamborine Mountain, one of the photos shows that she’s climbing on some netting. Yes. And then in the evenings, I would take Child L to the playground, and that would be four or five days a week, for an hour or two, until it got dark, which was very enjoyable. Then she’d come home, and then we’d have dinner and watch dinner, play, read to her, and then bed. So that was a typical day.’[40]
[40] Transcript, page 13, line 16 – page 14, line 35.
In relation to this aspect, M says:
‘Tribunal: Would Mr Marson not have had a significant role in caring for her after you returned to work?
M: Yes, but not in my estimation what he always said to people at that time and still continues to say, which is that he was a stay-at-home father. He was a stay-at-home person who had a child that went to kindy four days-a-week. So he was there for her in the morning. He was there for her in the afternoon and on Thursdays, however my recollection is that the second I walked through the door or the second I was on the scene he checked out. Emotionally availability wise. He may physically have been present in the house but it’s like I would go from work to – you know there was no break for me of parenting. There was no – like if I was on the scene, I was it. So I believe that in an emotional sense that’s, you know, and I’ve explained other duties that fell to me over time increasingly.
Tribunal: Going to your comment that he would ‘check out’ when you arrived home. Would it also be plausible that he might well be fatigued after the previous bout of childcare and you’re back so that it’s time for you to take over and he’s going to sit down, however one thinks of that?
M: My estimation of his bout of childcare was an hour or so before I came home and he had six hours prior to that to do whatever he wanted because most of the time it certainly wasn’t keeping the house under control or cooking dinner. So he had a lot of free time. So if an hour was about that meant, that’s it, you’re on duty for the rest of the night. Then, you know, that built resentment over years.’[41]
[41] Transcript, page 105, lines 1 – 22.

Another example involves a meeting between Mr Marson and M with Child L on 10 November 2022:
‘Mr Zhang: There is one further reference to an incident on 10 November 2022. Witness M and you agreed to meet at a park for you to spend some time with presumably Child L?
Mr Marson: Yes.
Mr Zhang: She said that you started to verbally abuse her until she became very upset. Do you recall verbally abusing her?
Mr Marson: I remember the meeting and I did not verbally abuse her at all, not one bit. I think I raised the issue of how we should separate and she got annoyed by that. But there was no verbal abuse, you know, from me. After I raised that point she just did not want to talk about it and she took Child L away. And I think I took a photo of that moment and Child L is in the car looking a bit worried. That was that day, yes.
Mr Zhang: She described you as having pushed into the car from the back passenger door and kept trying to pat and hug Child L and tell her that you loved her, and she was trying to get you out of the car. Do you remember any of this?
Mr Marson: So I wasn’t trying to remove Child L from the car because what would be the point?
Mr Zhang: No?
Mr Marson: Okay. She does say I pushed into the car. That doesn’t make sense. You can open a car door easily, you don’t have to push it open. You can pull it open. I was probably trying to say goodbye to Child L and reassure her. Witness M’s putting her own spin on that event. But, you know, it was getting increasingly difficult for me to see Child L because Witness M was obstructing us meeting.’[42]
[42] Transcript, page 62, line 29 – page 63, line 8.
Witness M in cross-examination from Mr Marson:
‘Mr Marson: Yes. Indeed. And can you confirm there was a dispute over his will in 2022 where you had to basically confront your mother because she would have cut you out of the will which had been changed without his consent? Can you confirm that?
M: You want me to say there was a dispute about the will however my recollection is that you had a dispute with the will. I was concerned about Stanley’s welfare. I’m not really sure I understand what this has to do…’[43]
[43] Transcript, page 86, lines 34 – 40.
M’s antagonistic actions towards Mr Marson:
‘Mr Marson: Right. Okay. I’ll move on. So Witness M, I was released from Arthur Gorrie, I think on April 20 last year and can I just confirm that after that happened the police phoned you and told you that I had been released?
M: Do you mean when you were released on bail?
Mr Marson: Correct?
M: Yes.
Mr Marson: Okay. And we had a joint account. In the days following my release from Arthur Gorrie, did you go into the joint account and empty it of over $300 plus a few cents interest?
M: I believe I did.
Mr Marson: Yes. Okay. That was my entire final pay cheque from Topgolf.[44]
[44] Transcript, page 93, lines 17 – 28.
M’s responses to Mr Marson’s efforts to see Child L:
‘Mr Marson: Did you not think at the time that taking out the DVO would have a significant effect of me not being able to see Child L?
M: No. It wasn’t worded that way. It was to prevent random showing up at kindy and, yes, that’s what worried me at that time. Child L is not actually listed directly on that protection order.
Mr Marson: Yes. And it does say that I can contact you in order to arrange visits with Child L?
M: Correct.
Mr Marson: Via text or email. Even phone maybe?
M: Yes.
Mr Marson: However when I was on parole, I did try that. I sent a number of texts. You ignored those. You implied harassment could be accused against me. You directed me to your lawyer to make, to try and get a visit with Child L and then you instructed your lawyer to say that it is not in Child L’s best interests 5 for me to see her. So can you confirm that those events happened?
M: Yes.’[45]
[45] Transcript, page 93, line 37 – page 94, line 5.
and
‘Mr Marson: Yes, fair enough. So for the record soon after that I ran out of time, so I did not have time to get a court order to actually enforce visits. Now you’ve also said, Witness M, that you did not show Child L the Christmas card I sent her in 2022. Is that correct?
M: Yes.
Mr Marson: Now I tried to see her on parole which was in the middle of last year. I sent her a Christmas card in December last year. Did you show her that one?
M: No.
Mr Marson: I sent another one more recently. Did you show her that one?
M: No.
Mr Marson: My sister received a photo of Child L from you recently and I asked my sister if she could give it to me and without me prompting my sister then asked you. Now that’s not me communicating with you because I didn’t ask my sister to do that. Again I just have to be within the terms of the DVO.
Tribunal: I appreciate that. The question could be somewhat simplified.
Mr Marson: No worries. Yes. So the question is did you receive that email and did you decide not to give my sister permission to give the photo to me, or have you not made that decision yet?
Tribunal: Multiple questions.
Mr Marson: Yes.
Tribunal: Can I suggest, I’m hesitant to put questions into the mouth of a witness, but a first question could be ‘was there an email exchange between you and my sister’?
Mr Marson: Yes, was there an email exchange between you and my sister?
M: No. There was a text and phone call.
Mr Marson: Okay. But did you decide not to give her permission to give me the photo?
M: Yes.
Mr Marson: And why was that?
M: I’ve had a lot of time to reflect on what is in Child L’s best interests and I have sought an incredibly large amount of advice on this point due to my own lack of experience in this ongoing nightmare trauma of an experience that has been the last two years. And based on advice from my lawyer and various trusted doctors what children need is consistency and because the DVO gives permission for something such as contact with Child L, that is quite different from entitling a person to contact Child L. What I needed to see was a consistent self-reflecting individual who had the ability to acknowledge the harm they had caused. I needed to see evidence of that before I was willing to allow the hard work in keeping Child L’s life stable and dealing with the grief of losing her father. I did not want intermittent contact. I did not want her seeing letters and then having to go through the whole range of questions again and again and again about ‘Where is Daddy? What has happened? Why can’t we see Daddy?’ I didn’t want to have to have those conversations again because it’s very painful for me. It’s difficult for her and until I was able to get some sense that there was a person who was willing to engage in the normal legal procedure of having custody access which would, per the advice I was given involve a mental health assessment at the very least as well as parenting and DV courses, until that happened it’s not safe for me for there to be casual contact with Child L. That’s why I have refused.
Mr Marson: That’s your opinion, yes?
M: That’s my opinion. Correct. And that’s an informed opinion from many other experts in that area.’[46]
[46] Transcript, page 94, line 35 – page 95, line 47.
and
‘Tribunal: Now, in your evidence-in-chief in response to questions regarding a photograph of Child L that you sent to Mr Marson’s sister, you explained that you had requested it not be given to Mr Marson for the basis of Child L maintaining consistency in her world view, in my words. I’m just curious, how does Mr Marson getting a photo of Child L affect that consistency?
M: I do not trust anything that comes from the applicant. So I had a feeling that he wished to have a recent photograph of her, not because he cared for her or wanted a photograph of her or why had he not requested such a thing months before. I believed it was potentially in preparation for this hearing to prove a level of contact and consistency and cooperation regarding Child L.
Tribunal: Again however, how would that affect consistency for Child L? That’s what you cited when you gave the answer earlier today?
M: Consistency for Child L? Well I guess it doesn’t affect Child L. Yes.’[47]
[47] Transcript, page 102, line 33 – line 47.
and
‘Tribunal: Now turning to exhibit R3, which is your email to the AAT dated 7 March 2024?
M: Yes.
Tribunal: So in that first paragraph, last two sentences:
“I’m enquiring about the appeals process in terms of whether I am permitted or required to provide evidence to the AAT regarding his overall lack of effort in keeping in touch with our daughter. He has made little effort to stay in touch with her but is building an argument to remain in Australia on the basis of being her father. I have evidence to show how little he has tried to stay in touch.”
Tribunal: Now, Mr Marson gave extensive evidence yesterday that he’s made efforts directly to you and through your lawyer to arrange some sort of communication with Child L. Would you say that evidence is incorrect?
M: It’s not incorrect. It’s just that, can I elaborate?
Tribunal: Certainly.
M: To my way of thinking as a mother who is with this child every day and madly in love with her and trying to do everything for her it had felt to me as though three letters, one of which was pointedly not appropriate for a child and a few attempts at random casual contact in the context of what he had done in the UK and my wanting to resolve that. Like to me it was sporadic contact and it was not committed, and it was not enough to show a commitment to Child L. So I guess I was applying my own standard. Like, if I had been incarcerated or kept away from my child, I would be writing every day. So it’s a judgment. I recognise that. That’s why I say that, because I believe in my heart that, you know, I live with this little girl who wants a daddy and three letters and some casual attempts through a lawyer which appeared to mostly revolve around having a car from what I could tell does not constitute the kind of effort that that little girl deserves.’[48]
[48] Transcript, page 101, lines 13 – 42.
In relation to M’s 22 November 2022 Application for a Protection Order[49] (this order was granted, subsequently served on Mr Marson and formed the basis for his two Index Offences that relate to breaching it), it is pertinent to consider the grounds M provided compared to her testimony. The listed grounds are:[50] [51]
·Verbal and emotional abuse
·Sexual abuse
·Financial abuse
·Harassing phone calls
·Control or use of technology
·Incident of 10 November 2022
·Attendance at childcare centre
·Urgency
[49] Exhibit R6: SM1, pages 30 – 42.
[50] Exhibit R6: SM1, pages 38 – 42.
[51] Exhibit R5: Witness statement, paragraph [7].
M also answered affirmatively to the question in the Protection Order application ‘Did the respondent use, or threaten to use, a weapon or another thing as a weapon, during any incident of domestic violence?’[52] In her testimony M qualified this answer:
‘Tribunal: This is aimed at, you’re the one seeking protection here so my assumption is the question’s aimed at something that’s been used against you or something in the immediate family here?
M: Okay. I may have been thinking of the question differently, but I don’t remember Mark ever threatening me physically with a weapon.’ [53]
[52] Exhibit R6: SM1, page 35.
[53] Transcript, page 108, lines 13 – 17.
In relation to the allegation of verbal and emotional abuse, M’s statement in the Protection Order application says that:
‘Verbal and emotional abuse
The Respondent abuses me, telling me that I am "full of shit", "completely fucking ridiculous", that I am "crazy", and should "get my head together", because "people like me are the fucking problem", "disgusting" and "a waste of time".
The Respondent speaks of his father in similar terms.
The Respondent tells me that no-one would believe me, as there are no witnesses to these conversations.
At times I believe the Respondent provoked conversations that ended in this kind of abuse. For example, he would tell me on the way home that he had done certain household tasks. When we got home I would see that he had not, and if I mentioned this he would accuse me of complaining unreasonably, and launch into a tirade of abuse against me.
This kind of abuse started after [Child L] was born. I had been managing my anxiety with meditation for several years before that, but I had to go back onto medication prescribed by my GP for the first time since my 20s.
For the past several months, this abuse has been happening every second day.
It has been triggered by anything. If we had any conversation beyond "what's for dinner", the Respondent would become angry at me and the abuse would start.
[Child L] was often present and within earshot during these incidents. She would become upset and start crying until I was able to remove her and calm her.
Since separation, I have been trying to arrange phone calls between [Child L] and the Respondent. This has been difficult, as [Child L] talks for a short time then wanders away. The Respondent then starts to discuss financial matters with me, and tells me I am "full of shit" and "completely fucking ridiculous".’[54]
[54] Exhibit R6: SM1, page 39.
When this was put to Mr Marson in cross-examination, his testimony was as follows:
‘Mr Zhang: On page 39 of SM1, that’s exhibit R6, Witness M alleged that you said that she is “full of shit” and “completely fucking ridiculous” and “crazy, disgusting, a waste of time”. Have you ever called her such things?
Mr Marson: Certainly not disgusting. I’ve never used that word, not once.
Mr Zhang: Crazy, waste of time?
Mr Marson: That would depend entirely on the context. If she – after the separation started if she was saying things to me that were outrageous I may have said that was crazy or, “That is crazy.” Obviously “waste of time” – again, what is the context? I didn’t think talking to her about the terms of the separation was a waste of time. I thought that was something we should do. That sounds like the sort of thing she would say.
Mr Zhang: What about “full of shit” and “completely fucking ridiculous”? Are these terms that you’ve ever used to talk to her?
Mr Marson: I don’t think I would have said “full of shit” to Witness M, yes. Completely ridiculous? Her way of dealing with the divorce was ridiculous. You know, she just didn’t want to talk about anything. She didn’t want to negotiate about anything, that is ridiculous. It’s difficult to say how relevant any of this is if it’s completely out of context. But she’s done that on purpose. She just picks out words and then planted them, you know, in isolation and then put them together to make it sound like there wasn’t an argument and this was just me having a go at her. But it would have been – you know, I certainly didn’t use the word “disgusting”, you know.
Mr Zhang: Okay?
Mr Marson: But it would have been part of an argument where I was trying to get her to agree to a reasonable separation process according to the law, you know. What the – you know.’[55]
[55] Transcript, page 57, line 38 – page 58, line 25.
and
‘Mr Zhang: So on page 40 of SM1 there are a number of references to you making what Witness M described as harassing phone calls. She stated that you have on occasions attempted to call her repeatedly on 31 October - - -?
Mr Marson: 2022.
Mr Zhang: - - - 2022. You rang twice and texted her leaving messages saying, “Answer your fucking phone. You have to be available.” The issue was your inability to use the blender. Does that sound familiar to you?
Mr Marson: That wording – you know, I dispute that wording.
Mr Zhang: Okay. But you called her repetitively? Were you frustrated with - - -?
Mr Marson: It was – that was an emergency, yes. But I really dispute that wording. I don’t think I would have used that wording. I mean, I could be wrong. She – but again, it was an emergency. That was not normal. I was making a big batch of chutney and it changes – if you cut apples they change colour if you leave them out in the open so I had had to get the blender working, and there was one little fiddly thing that I didn’t do and so I thought, “This is going to change the nature of the whole batch.” But, yes, so I was panicking. But then I got a – I, you know, turned it in some way and then I got it working and then it was fine. But, yes that was a one-off. I wouldn’t normally panic to that extent, yes.
Mr Zhang: Were you frustrated that she wasn’t answering your call?
Mr Marson: Yes, well, if I was, it was a one-off, you know. That was very rare, that sort of thing, yes. And it was - - -
Mr Zhang: It refers to 5 November 2022, it says that you called her twice and left two messages and send two texts and you – sorry, all of them telling her that she had to answer her phone, and that was in relation to the return of her mother’s car which you had been using. Do you recall any of those?
Mr Marson: Well, I don’t know what the circumstances were. Does she – I don’t know what she alleges there.
Mr Zhang: She alleged that you called her twice and left two messages and you told her that she had to answer her phone, and that was in relation to the return of her mother’s car?
Mr Marson: It may have been an emergency of some kind or urgent, you know. None of this – there was no pattern of me harassing her. It was – these were urgent situations.
Mr Zhang: There is a further reference to on one occasion without a particular date you called her at work very upset about a USB drive that you could not find. It was alleged that you rang and messaged her repeatedly about it, and when she spoke to you, you appeared to be drunk and said that you were going to collect [Child L], and you kept ranting at her about the missing USB. And she told you that she was scared and you laughed. Do you recall this particular incident?
Mr Marson: I remember losing the flash drive, yes.
Mr Zhang: Do you remember the call?
Mr Marson: No, I don’t remember the call.
Mr Zhang: Do you remember becoming angry at her?
Mr Marson: I don’t think I was angry at her. Why would I be? I lost it. It turned up again. You know, I was panicking because losing a lot of data can be stressful so – but, you know, again, there was a good reason. The situation was resolved. If she was worried about that, you know, I’m a bit, you know, concerned about that because that wasn’t my intention because why would it be? It was my mistake.
Mr Zhang: So if you were panicking do you think you might have ranted at her about it?
Mr Marson: No. Why would I? No.
Mr Zhang: There appears to be – and I’m putting this to you. There appears to be a number of events where you either panicked or where you think there were some – where you thought there was some sort of an emergency and then you would make repeated calls and demand Witness M to answer those calls. Do you accept that?
Mr Marson: We were married for six or seven years. I mean - - -
Mr Zhang: Sorry, do you accept that or do you not accept that?
Mr Marson: I don’t accept the emphasis you’re putting on it.
Mr Zhang: In what way?
Mr Marson: Well, if you’re married for six or seven years then, you know, sometimes things go wrong and you try to fix it and you try to get a hold fixing it. I mean, it’s nothing compared to the amount of agro she has subjected me to, you know, due to her mood swings which I accepted as par for the course, you know. I don’t think – and there was no – there’s no pattern there, you know. These were situations which were urgent or emergencies. You know, there’s no behaviour pattern there, I think.
Mr Zhang: I’m putting it to you that the incident with the blender, it can’t really be accepted as an emergency. What would you say about that?
Mr Marson: Apples do change colour if you leave them out exposed.
Mr Zhang: Okay?
Mr Marson: And I think they probably – you may lose a bit of the acidity as well there would be neutralised, so it may actually change the taste of the batch if they were left exposed, yes.
Mr Zhang: On the same page, page 40, Witness M referred to a number of incidents where she noticed various changes to her IT devices, that they had been logged out, the calendar on her phone had been wiped, and certain emails going missing. And she suspected that you might have used a key logger or a GPS tracker on her phone?
Mr Marson: Yes, I can illuminate that. The only thing that happened was that we had Google accounts on a Chromebook, and I logged out of her account because she – after she moved out of the house she left the computer but she was still logged in, so I logged out. I logged her out. Now, I think she – there was some – that had some kind of effect and she noticed it. I didn’t look through her files. I haven’t used a key logger or GPS tracking; I’ve never done any of that. Yes, I’ve never done anything vaguely related to hacking of Witness M’s electronic devices or her accounts. Yes, nothing. Nothing at all. I just logged her out and I think she thought it meant something else, yes.
Mr Zhang: On page 41 she said that you used Google for searching pornography and dating sites, and if she mentioned this to you, you told her that it was her fault?
Mr Marson: So that would have been after we separated. And if someone is logged into Google and the computer is open, anyone can use the – can search for anything. I don’t know why she says I accused her of it being her fault. I don’t know what she said that made – would make me say that. But the remedy is to log her out, which is what I did, yes.’[56]
[56] Transcript, page 60, line 17 – page 62, line 27.

In relation to the allegation of financial abuse, M’s statement in the Protection Order application says that:
‘Throughout our relationship I have worked full-time as the sole income-earner in our household. The Respondent did not hold paid employment while we were together.
The Respondent was controlling about our finances. He would pressure me not to spend money, even on small things or special occasions. He refused to buy me birthday or Christmas presents. He complained if he found out I had made a small purchase, such as a facial, until I felt guilty about it, even though I knew we could afford it. If I proposed making a purchase, he would refuse, and tell me we should not do it.
In February 2022, my uncle died. He had previously named me as a beneficiary, but changed his will to leave his estate to my mother and a friend. I loved my uncle and had been his guardian. I did not care about the money, especially as it was not a large estate. The Respondent was excessively angry about this. He drafted an agreement for my mother and my uncle's friend to sign, to pay part of their inheritance to me. He was relentless in badgering me to do this. When I was due to see my mother and my uncle's friend, he rang me repeatedly to insist I get them to sign.’[57]
[57] Exhibit R6: SM1, page 39.
When this was put to Mr Marson in cross-examination, his testimony was as follows:
‘Mr Zhang: Witness M also refers to an incident in 2002 you touched on it earlier today when her uncle died she was previously named as the beneficiary, but ultimately she was taken out?
Mr Marson: But her share was reinstated with an out of court agreement which we got signed by her mother and perhaps the housemate. I don’t know if she says that there.
Mr Zhang: She says that – so referring to herself:
“I did not care about the money, especially as it was not a large estate. The respondent was incessantly angry about the – ”
the respondent in that case being you?
Mr Marson: Yes.
Mr Zhang:“- was excessively angry about this. He drafted an agreement for my mother and my uncle’s friend to sign to pay part of their inheritance to me. He was relentless in badgering me to do this.”
Mr Marson: So we both drafted agreements. These were – this was just one side of A4 paper. They both said the same thing. We actually went with Witness M’s version, not mine. Now, she says she wasn’t interested in, you know, the estate. So I’ve described the buildup to this earlier, and there was a three-year period where we were going back and forth to Newcastle, and then after Stan moved to Murwillumbah going back and forth to Murwillumbah. And the will had been changed without his consent, cutting Witness M out. Now, when Pat changed the will – well, I should say that she had lived with Stan on the basis of them being housemates because that was beneficial for her in terms of what she got from Centrelink. So they couldn’t be partners, they didn’t sleep in the same bedroom, so she was being accurate as well, so therefore they were housemates. And when it became inevitable that Stan was going to go into a nursing home she really started to worry about where she was going to live, so she thought, “It would be better if we were actually husband and wife.” So that’s why she changed the will without his consent. Like, dragging him, a very confused old man, to the lawyer’s office. The lawyer then started the process which got his assets put under the trusteeship.
Mr Zhang: And you say without his consent?
Mr Marson: Yes.
Mr Zhang: That’s not the finding of the court, was it?
Mr Marson: It kind of is actually because the lawyer whose office they turned up at reported it and started a legal process in motion which – and he was assessed as part of that process and there were hearings. And we even had a trial period where he stayed at Linda’s house to see if he could live outside a nursing home. The conclusion of all this was that the dementia was too bad, you know, so he had to go to a nursing home. And because the dementia had begun, you know, months before – maybe a year before - and there were consequences to that; loss of bladder control, crashing his car. Because of that we can say he did not actually – he wasn’t able to consent when he – the will was changed. Anyway, the point was three years later Pat did not cause any trouble when Witness M suggested to her that she should be reinstated because Witness M – this was one trip where Witness M and Linda went down to Newcastle to meet with Pat – this was after Stan had died – and I stayed looking after Child L. And Witness M, you know, had the document ready, the out of court agreement ready, and when Linda left the room expressed her concerns to Pat. And Pat was – understood it perfectly and agreed to sign it. And I think she was much happier that Witness M’s share, 25 per cent, was being reinstated because she probably felt a bit guilty about it herself so that it made her feel much better. And then Linda came in and then Linda agreed to it because Pat had already agreed to it. Like I said before, it was facing up to her mother that worried Witness M, yes.
Mr Zhang: I think the point, Mr Marson, is that Witness M accused you of being excessively angry about this matter?
Mr Marson: Yes.
Mr Zhang: And you badgered her to take an agreement for her mother and her uncle’s friend to sign as a part of the inheritance. What do you say about that in relation to your conduct?
Mr Marson: Yes, I wouldn’t – I don’t think I got angry. I didn’t want to see her get ripped off, you know. Because we had – because like I said, the original – Pat had lived as the housemate for years and got extra benefits from Centrelink for that purpose. To turn around and say, ‘No, we’re actually partners, de facto, man and wife,’ you know, that’s not kosher. That’s very dubious legally. So when this was reversed and Witness M’s share was reinstated, well, Pat was okay with it for a start. But I thought that’s appropriate because we had both put a lot of effort into Stan in the last three and a bit years of his life. We had been very involved, me, Witness M, Linda. Linda not so much because she kept leaving to go to the UK for, you know, four months every year apart from one year when at the height of COVID. And what I saw was Witness M getting ripped off by her own mother, that was what was really disturbing about it. You know, her mum has said various things like she’s going to spend all of her money before she dies and, you know, there won’t be anything left and, you know, now she was trying to rip off her own daughter. Because she didn’t even seem to understand the very simple arguments that we were putting forward. She seemed to think because there was one final will that was the authoritative document on the subject without looking into the context of, you know, how it was changed, why it was changed, what the will was before, what Witness M had done in the three and a bit years leading up to, you know, before Stan passed away. She didn’t want to look at any of that, it was just, ‘Here’s a document which says I should get money, therefore I should get more money and I don’t even want to think about what my daughter’s situation is,’ you know. So, yes, I didn’t want to see her getting ripped off by her own mother. We can all ask – we can ask her this tomorrow if any – if you doubt any of this.’[58]
[58] Transcript, page 58, line 18 – page 60, line 15.
In relation to the allegation of sexual abuse, M gave the following testimony:
‘Mr Marson: Okay. So I would put it to you that this relates to one incident in either August or September 2022. We were going through a separation, and I suppose my attitude was well maybe sex would help and I thought you felt the same way. And I think we were having marriage counselling at the same time, around about that time. And on the face of it it was normal. So I just want to ask, do you remember that incident?
M: Yes.
Mr Marson: Did you consent to sex at that time?
M: I complied with the repeated requests for sex. It was in the context of being visibly upset and scared which I had vocalised and expressed. Just by looking at me it was obvious that I was very fearful. I did comply with that request for sex because I was afraid that if I didn’t that would break a longstanding pattern in the relationship where I basically never said no to sex. And my thinking was if I don’t say yes now, he’s going to know that I’m serious about this separation and I was frankly terrified of what that meant. After what I had witnessed in the UK and the subsequent response to my distress which was unmoved and dismissive, I didn’t feel safe to say no. So I consented by way of having sex, but I did not want to. I did it to placate. I did it out of fear.
Mr Marson: Okay, but there was nothing that I could have picked up on to realise that? Can you think of any actual words or emotions?
M: I believe I’ve answered that question.’[59]
(Emphasis added)
[59] Transcript, page 88, lines 19 – 40.
In relation to the allegation of Mr Marson making harassing telephone calls, M gave the testimony:
‘Tribunal: Could you give details of what you mean by harassing phone calls?
M: Yes, so these mostly refer to the period of time after the UK and prior to the siege. So that was a very difficult time for me. When I was not living in the house with Child L anymore. Even I think on one occasion when I simply came to spend an evening with a friend. Child L was left in the applicant’s care, and he phoned, voice was raised, raving about something to do with an internet connection. Again, these sorts of things were very triggering to me. I found any raised voice threatening in the context of what I’d seen, what he was able to do, and I could hear Child L kind of screaming and crying in the background and, you know, was forced to say, “Look, just, can you just comfort Child L?” “I don’t know what to do.” You know, say, “Well, just give her a cuddle”. You know, and it felt as though I’d gone out for the night, which I didn’t do very often – certainly at that point, you know – and as soon as I was out with my friend it was like, “Everything’s fallen apart here. I don’t know what to do.” You know, the phone calls about the chutney or whatever. I didn’t know that’s what they were about. Again, I wasn’t living at home. I was staying with my friends. And I just had message after message saying, “Answer your fucking phone. Pick up. We have to be in contact.” You know, “You need to answer your phone.” And to me unless it was a direct request to speak with Child L, I was like, I’m not going to respond. Then to find out it was about chutney. You know, these are not like the worst harassing phone calls a person could ever have, but in the context of what I had been through with him it was part of an escalating behaviour.
Tribunal: And I’m gathering from what you’ve just said that these occurred after you’d left the Labrador residence in September 2022?
M: Yes.’[60]
[60] Transcript, page 103, lines 8 – 34.
In relation to the allegation of Mr Marson’s control or use of technology, M gave the following testimony:
‘Tribunal: You’ve made mention there that he contacted you regarding – well previously today you mentioned the USB key and you just gave in your answer then, the internet connection?
M: M’mm.
Tribunal: It’s the first the tribunal’s heard of it, but you’ve also made mention in your statement his control of technology and you’ve made further allegations that you believe he had tampered with your phone and used technology skills. Help me here, please, because the tribunal is somewhat confused. It appears on one hand you’re saying he didn’t really know where USB keys were and internet connections. On the other hand he has advanced skills in putting programs on phones?
M: M’mm.
Tribunal: What do you think his IT skills are?
M: I don’t really know, because Mark always had a very complicated and changing set of passwords that were involved on all of his documents and accounts and things. I don’t believe that ringing me up and saying, “I don’t know how to log-on to the internet” et cetera is necessarily an indication of lack of skill as much as there was a lot of flustered behaviour from him when we returned from the UK because of the severity of the incident that occurred and my ongoing lack of cooperation in just letting it go. So I don’t know that that really reflects a skill per se as just a general flustered state of mind. I didn’t know if he was accessing my phone, but there just seemed to be a lot of weird stuff happening on my phone. Phone calls when it was five minutes before a calendar meeting in my phone with my lawyer at a court, saying, “Hi, how are you? Where are you? What’s going on?” There was another phone call right after I couldn’t log-on to Child L’s tablet which I believe even involved something along the lines of, “Hi, is Child L’s tablet working okay?” I phoned ID Care which the company that, they will do a sweep of all the devices. I got them to sweep the devices. They didn’t find anything. I had changed all of my passwords and after going to the UK a second time trying to get answers as to why what happened had happened, shortly into that trip even though I had changed all my passwords, I felt as though my phone had been accessed because my calendar was wiped. Nothing else was touched, really. Just the calendar was wiped which had a long set of records. My own personal records of the previous months. And when I tried to log out and log back in to all of my Google accounts, they were already logged in on another device even though there all new passwords. Now, I could not explain that, and I was extremely panicked. I ended up simply shutting everything down and going and buying a new phone and a new tablet for Child L because it just – I couldn’t understand how I could be already logged in on other devices when I had changed all the passwords, and I knew he knew how to login under my Google account because he did that intentionally to Google dating sites shortly after we talked about separating.
Tribunal: Do you agree it’s plausible that it wasn’t so much him as just coincidence and third parties?
M: Yes.
Tribunal: Not technology issues?
M: Yes. I mean I never knew for sure.’[61]
(Emphasis added)
[61] Transcript, page 103, line 36 – page 104, line 36.
In relation to the allegations of an incident on 10 November 2022, M gave the following testimony:
‘Mr Marson: Okay. Just one final question. So there were two meetings in November 2022 that I recall. There may have been three. I think you mentioned a third one, but there are two that I recall. One the last time I saw Child L, when I went to her kindy. But before that it was in a park and Child L – I was waiting in the park, and you drove and parked and got out of the car and can you describe Child L’s reaction to seeing me?
M: I believe she was quite excited.
Mr Marson: Yes. I think she ran up to me for a hug. And we were there for a while. As I recall unfortunately the question of the divorce and the divorce settlement came up and at that point, I said I would need enough for a deposit on an apartment and at that point you got annoyed and you left, taking Child L with you. I do have a photo of the moment where Child L is in the car. It’s in there. Everyone’s seen it.
Tribunal: Correct.
Mr Marson: Is that your recollection as well?
M: Is what my recollection? Sorry, can you be clear?
Mr Marson: Did we raise the subject of a general divorce settlement and is that why you left the park at that time?
M: My recollection was that I had once again asked you to leave home so that me, the person with the job, and Child L the person with the kindy could remain close to our job and our kindy and I had suggested that you could potentially go into share accommodation. I was prepared to offer you $80,000 to leave. You said that wasn’t enough. You said moving into share accommodation was ‘a step backward’. These were conversations that we seemed to have repeatedly whenever I tried to make headway. So, yes, I became very frustrated and upset very quickly because I also had to drive through an hour-and-a-half of traffic to get back to where we were staying because we weren’t able to safely be at home. And that was very upsetting to me.
Mr Marson: For the record, I recall Witness M’s offer as 60,000, not 80,000. That’s quite a significant difference.’[62]
[62] Transcript, page 99, line 21 – page 100, line 8.
In relation to the allegation about Mr Marson’s attendance at Child L’s childcare centre, M had written in the Protection Order application as follows:[63]
‘Q 11 Conditions sought in the order
…
(E) Do you want to prohibit the respondent’s presence at or in a place associated with any child (e.g. school, day care etc.)
I have asked the Respondent to give me one day's notice anytime he wants to spend time with [Child L] so we can agree on a time or place. He has only done this once. Then on Friday 18 November 2022 he attended at [Childcare Centre] at the time I usually collect her. l had picked her up early that day. A staff member told me that he was not happy that [Child L] and I were not there. Staff advised me on Monday 21 November that he attended again and spent 2 hours there.’
[63] Exhibit R6: SM1, pages 35 – 36.
In cross-examination M gave the following testimony on this aspect:
‘Mr Marson: So you’ve also said in your statement that I visited Child L at her kindy in November 2022 and as a result you took out the DVO the next day. So is that correct so far?
M: Yes.
Mr Marson: Did you not think at the time that taking out the DVO would have a significant effect of me not being able to see Child L?
M: No. It wasn’t worded that way. It was to prevent random showing up at kindy and, yes, that’s what worried me at that time. Child L is not actually listed directly on that protection order.[64]
Mr Marson: Yes. And it does say that I can contact you in order to arrange visits with Child L?
M: Correct.
Mr Marson: Via text or email. Even phone maybe?
M: Yes.’[65]
[64] Note that this comment is in direct contradiction to the order, see Exhibit R6: SM1, page 33.
[65] Transcript, page 93, lines 33 – 46.
27 June 2022
M alleges in her Protection Order application statement that she observed Mr Marson attempting to kill his father on the morning of 27 June 2022.
M also addressed this aspect in her testimony:
‘Tribunal: Now just going to page 38 of R6. This details your allegations about what happened in England and for the record I’ll note you’ve just said previously that what you alleged occurred on the morning before you departed the UK?
M: The morning of our departure. Yes.
Tribunal: Thank you. Now these allegations are quite serious. Did you tell anyone at the time? Anyone? Did you tell anyone about what you’d witnessed?
M: Yes. Eventually I worked up to tell his mother while Mark was upstairs in the shower. She was in disbelief, but I provided her with various bits of evidence that I found around the house, like the plastic bag with the tea towel in it and the gloves. I described what had happened. She believed me.
Tribunal: Appreciating one doesn’t always act as one would want to in hindsight but it’s all happening at the time, but did you think about taking a photo of what you saw?
M: No, I did not think about taking a photo.
Tribunal: Did you consider reporting it to the UK police?
M: No, I was in absolute shock and disbelief. Remember, we had a little girl with a broken arm at that point too and I was focussed on just getting us the hell out of there. I couldn’t – I couldn’t understand what was happening. It’s very difficult to describe the level of dislocated reality. Mark had had some kind of raving explanation to me that morning about what was going on and part of me tried to be sympathetic toward him. I did report the incident when I returned to Australia. I reported it to Queensland police.
Tribunal: Who observed correctly it occurred in another country (indistinct)?
M: Yes. They said I’m very – yes.
Tribunal: There’s a principle in evidence that extraordinary claims require extraordinary evidence. It’s in your statement. It’s a part of the evidence that’s before this tribunal. Would, in your belief, Mr Marson’s mother if contacted by the tribunal and she gave evidence, would she confirm that you’d contacted her and told her on the day?
M: I would hope so. Yes. She has said to me in the past that she would stand up for me in this situation. I’m not sure if I believe that, but, you know, by all means you could ask her. I insisted that Mark indeed ring her and confess to her that what I was saying was the truth because there seemed to be this erosion of what had happened and it sort of became, “Oh, we had an argument too. I was drunk. I don’t remember.” But I know what I saw. I know what I witnessed. I wrote a statement to myself mere days afterwards because it was torturing me. It was the only thing I could think about and yet it was the one thing I didn’t want to think about. And it’s the reason that my whole life fell apart, so I didn’t make it up, I didn’t – see what I mean, like, it’s not the sort of thing that you would wish for as a reason to, like, somehow separate from your husband or, you know – I don’t know what to say about that.
Tribunal: Do you still have a copy of that statement you wrote to yourself?
M: Yes.’[66]
[66] Transcript, page 108, line 19 – page 109, line 19.
and
‘Mr Marson: Yes. Very good. Okay. Just a few and simple questions, Witness M. So this about the alleged incident in June 2022. Now, where were you before you witnessed the incident?
M: In bed.
Mr Marson: And where was the bed? Where was the bedroom?
M: Upstairs, in the house.
Mr Marson: Okay. Why did you come downstairs?
M: Because I awoke to sound of a raised voice, which sounded like an argument, but I didn’t hear the applicant’s mother taking part in the conversation. Which was confusing enough to kind of rouse me from sleep, because I hadn’t heard the applicant really address his father for the entire, and I thought, “Well, you can’t have an argument with somebody who can’t hear”, so that was the thinking that kind of – yes.
Mr Marson: Yes. Okay. When you say you witnessed an incident, what did you see with your eyes?
M: After hearing certain frightening statements through the door to the downstairs loungeroom, which was closed, I went through the kitchen and round through the dining room where I had a clear view of yourself with your arms outstretched – plastic red bags and a neat tea towel inside of it – advancing on your father saying, “It doesn’t matter if you can’t hear me, just lie down and let me put this over your face”.
Mr Marson: You didn’t actually see me, allegedly, actually physically touch my father then?
M: I told what I just saw. I said what I saw.
Mr Marson: Okay?
M: There was a context of verbal comments and some ravings prior to that that I had heard as well, which convinced me the situation was no joke.
Mr Marson: But no actual physical contact, allegedly. Was there any threat, in any sense? Any verbal threat?
Tribunal: You might want to clarify that, Mr Marson. The witness has given an account of what you allegedly said.
Mr Marson: Your statement was – it sounds like a suggestion, the way you put it?
M: That’s what I heard.
Mr Marson: Okay?
M: I also had heard from upstairs, and as I came down the stairs and listened to the door to understand what I was hearing, “This has to be resolved right now”, and your father saying, “Stop. Get away from me. I don’t want that. I can’t hear you”. I heard what seemed like a mildly jovial laugh and, “Doesn’t matter if you can’t hear me, this has to be fixed. Just lie down and let me put this over your face”.
Mr Marson: But I didn’t allegedly do anything?
M: When I saw what I saw, which is arms outstretched moving towards him backing away into the bed, I very quickly rushed around and slammed open the door to stop whatever was happening, at which point I got a giddy drunk smile and a very quick flick of the arm like this - - -
Tribunal: Excuse me. Are you indicating the applicant - - -?
M: The applicant very quickly flicked something behind him, which is the plastic bag – red bag with tea towel folded in it. And then the applicant stood with his arms like this – across the door, so I couldn’t enter, and I was looking around - - -
Tribunal: Excuse me. For the transcript, the witness is placing her arms out outstretched?
M: Yes. And there was – the applicant was wearing fitted blue gardening gloves.
Mr Marson: And how long had this ranting – or however you would describe it, how long did it go on for, do you think?
M: I awoke at about half past five, approximately. I had heard the ranting as I awoke. I sort of listened, thought something weird, stepped out, continued to listen, thinking, “It’s not really any of my business, but there’s something weird going on”. I heard the, “Stop. Get away from me. I don’t want this”, and then half put some clothes on, crept down the stairs – a wooden creaky stair, listened to the door, kept hearing what I was hearing in disbelief. So it was several minutes of processing that before I saw what I saw and confronted you about it.
Mr Marson: Okay. And you were back in the UK back in October 2022 for about four weeks?
M: Yes.
Mr Marson: Why didn’t you – if you thought there was an actual offence had been committed, why didn’t you report it to the police then?
M: Well, that’s a good question. I was very confused and traumatised, and I – honestly I didn’t think that anybody would back me up there. By the time I got there, on that morning, I had spoken to the applicant’s father to check on him to make sure he was okay. I had even said to the applicant, “Is it okay?”, because I was scared or just freaked out. So I said, “Is it okay if I go and check on your dad?”. Checked on him, and he said to me, “I’m really sorry you had to see that. I won’t ever tell anybody about this”. So between that and the intervening several months of communicating with the applicant’s mother who whilst was supportive in some ways in the sense that she believed me of what had happened, because she saw things that morning. She saw my behaviour, my fear that was evident, and I had asked the applicant to phone her and confirm that I wasn’t making anything up, you know, because I could see there was this pressure to just pretend like nothing had happened. I just wasn’t convinced that it would do any good, because the man himself had said, “I won’t tell anybody”.’[67]
[67] Transcript, page 117, line 6 – page 119, line 2.

Mr Marson provided the following testimony in relation to this allegation after being advised of his privilege against self-incrimination:
‘Tribunal: Mr Marson, do you wish to give any further evidence in any form?
Mr Marson: Not so much, just the comments that – I don’t think any offence actually took place. Arguably, no offence was going to take place.
Tribunal: I’d be careful again, and I give you the - - -
Mr Marson: Allegedly.
Tribunal: Yes.
Mr Marson: Yes.
Tribunal: You’ve got the right not to self-incriminate.
Mr Marson: Yes. So everything I’ve said so far about this is allegedly. So based on Witness M’s account, it’s not clear to me that the alleged incident would’ve led to an offence. Witness M herself has said that apparently I had drunk a bottle of whiskey. That’s what she has said. And made a lot of noise. So - - -
Tribunal: I’m not sure if she said that you’ve consumed a bottle of whiskey. Can you point to where that is in the evidence?
Mr Marson: Yes, I made a note of it. That’s what she said in (indistinct).
Tribunal: This morning?
Mr Marson: Yes. Yes. I mean, I couldn’t physically drink a bottle of whiskey. Some people can. But, yes. But my only point is it’s not clear to me that based on her allegations, those allegations could possibly lead to a charge. That’s all I’m saying on that.
Tribunal: Thank you, Mr Marson.
Mr Marson: Yes.
Tribunal: Anything further, Mr Zhang?
Mr Zhang: No further questions, Member. I just wish to (indistinct) when there was a reference earlier today from Witness M that that morning in the UK, he (indistinct) referring to the applicant - - -
Tribunal: Couldn’t.
Mr Zhang: - - - had an entire bottle of spirits, or something to that effect.
Tribunal: Sorry, I must’ve missed it at the time. My apologies.’[68]
[68] Transcript, page 119, line 27 – page 120, line 28.
Mrs Dodson gave the following testimony on this aspect of the matter:
‘Mrs Dodson: That is right, yes.
Tribunal: So, my first question for you is – first of all, do you recall 22 June 2022 or what happened that day?
Mrs Dodson: I recall it reasonably well. I can’t say it is all clear in my head. It was early morning and I had just got out of bed.
Tribunal: Thank you. Did you have a conversation with your former daughter-in-law, Witness M, that day?
Mrs Dodson: I did, yes.
Tribunal: And did she tell you about what she said she saw between your son and your husband that morning?
Mrs Dodson: She did, yes.
Tribunal: Okay. Now, apologies for the next question but do you believe what your former daughter-in-law, Witness M, told you?
Mrs Dodson: I find it very, very, very difficult but she did tell me and she was distressed about it at the time.
Tribunal: Thank you. I am sorry to put you through that but I needed that confirmation.
Mrs Dodson: M’mm.
Tribunal: Right. How long did you and Witness M talk about this for?
Mrs Dodson: In – there was some things – if I remember, you know, Child L needed breakfast. She – I – we didn’t talk about it for very long, yes. But on the course of – in the course of the day, I think it kind of loomed heavily around the household.’[69]
[69] Transcript, page 125, line 47 – page 127, line 2.
and
‘Mr Marson: Right. Okay. Do you have ailments yourself, Mum?
Mrs Dodson: Do I have what?
Mr Marson: Physical ailments, problems getting around?
Mrs Dodson: Do I have?
Mr Marson: Yes?
Mrs Dodson: I have a myriad of physical ailments at this moment but, you know, I get around with a stick. I have had a couple of strokes and that have – excuse me – that hasn’t helped mobility but I do get around, yes, with a stick.
Mr Marson: Yes, yes. And was it, at any point, considered that - - -?
Mrs Dodson: And can I say for that proports to anything at all but I don’t know where all these questions are leading. But there is not a day I go in to visit Gordon that he doesn’t send love to you personally and ask how you are.
Mr Marson: Yes. Yes?
Mrs Dodson: It never fails. He might not ask me how I am but he does ask for you.
Mr Marson: Yes?
Mrs Dodson: So, I’ll just put that in there while I remember to mention it.’[70]
[70] Transcript, page 128, lines 27 – 44.
M’s written allegations about this incident are in evidence.[71] Her view of the alleged incident appears to have been a causative element in her seeking a divorce and applying for the DV protection order. Consequently, her view of the alleged incident likely plays a role in the context of Mr Marson committing the Index Offences.
[71] Exhibit R6: SM1, page 38.
The allegations are very serious. The Tribunal finds that the net effect of the testimony of M and Mr Marson, together with Mrs Dodson’s answers, does not rise to the same level of proof.[72] It makes no findings as to whether the 27 June 2022 incident occurred.
[72] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
That said, there are inconsistencies in M’s evidence that support the Tribunal’s view of her credibility and reliability. The first inconsistency is her failure to talk with the UK police about her allegations when she returned to the UK in either September or October 2022. The second is her delayed reporting of the matter to the Queensland police when a reasonable observer would likely conclude that the Queensland police had no jurisdiction in the matter. The third inconsistency, given the relative seriousness of both her allegations regarding the incident and her reporting that Mr Marson had breached the Protection Order and was still in residence at the former matrimonial home, was the differential speed of reporting. She reported the latter issue apparently on the same day – 5 December 2022 – as she discovered it.
Mr Marson
The Tribunal, after observing Mr Marson’s demeanour giving evidence, has doubts about Mr Marson’s credibility and reliability.
In terms of credibility, while much of his testimony had a consistent internal narrative sometimes at odds with the documentary evidence, often his answers became discursive and deflective (for example, in relation to the 2016 trespassing charge). Some answers tapered off without addressing the question at hand. His answers were at times scattered in service to a narrative that sought to persuade the Tribunal that his circumstances are nowhere near as bad as the reviewable decision makes out.
In terms of reliability, Mr Marson’s evidence is often in direct or indirect conflict with M’s evidence, making it problematic.
M
The Tribunal also has doubts about M’s credibility and reliability.
While Mr Marson’s answers were at times scattered and distributed, M’s answers appeared organised and generally had a common thread regarding antipathy to Mr Marson and advancing her apprehensions about him.
Her demeanour was also of interest. While she delivered considered and at times, lengthy, answers and was willing at times to concede points, she often refused eye contact – not just with Mr Marson, which is understandable, but also with Mr Zhang and the Tribunal.
It would also be fair to describe her as a complex, and, in some respects, an unsatisfactory witness. Nuance was applied in evaluating her evidence. Any contentious or uncorroborated aspects of her evidence require careful scrutiny.
One example of this came out of the questions directed to her 22 November 2022 DV protection order application. Acknowledging that these allegations were not immediately tested in court at the time, it is evident that some of her claims in that document, such as Mr Marson’s use of a weapon and his alleged hacking skills, do not survive considered forensic attention.
Another example, being her refusal to allow her sister-in-law to forward a photograph of Child L to Mr Marson, reveals more bias and animus than expected. It is clear from her evidence that she imposed this restriction more to handicap Mr Marson’s possible Visa case than to protect Child L.
As with Mr Marson, her evidence is often in direct or indirect conflict with Mr Marson’s evidence, making its reliability problematic.
Conclusion
The result, to the Tribunal’s mind, is that much of Mr Marson’s and M’s testimony is skewed.
There is a significant difference between the skewed testimony of Mr Marson and M. In the case of Mr Marson, his testimony appears to have been guided by his strong views on – in no particular order – Australia’s family law and domestic violence legislation, his desire to make his voice heard and at times his proclivity to protest what he disagreed with. M’s testimony and views appear to have been guided and shaped by a common antagonistic thread that continues to the present.
PRIMARY CONSIDERATIONS
Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct
When considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind that the Australian Government is committed to protecting the Australian community from harm because 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 with the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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.
Tribunal’s Consideration: The nature and seriousness of Mr Marson’s conduct
Paragraph 8.1.1(1)
This paragraph states that, in considering the nature and seriousness of the non-citizen’s ‘criminal offending or other conduct to date’, decision-makers ‘must have regard to the following’:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     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 197 A 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 reoffended 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).
(h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Tribunal has considered both parties’ respective submissions on Paragraph 8.1.1 of the Direction.
In essence the Respondent contends that:
·Mr Marson was sentenced to 12 months of imprisonment on each offence, to be served concurrently.[73] He was released on parole on 20 April 2023, however was returned to custody on 24 July 2023 for breach of his parole.[74]
[73] Exhibit R1: G2, pages 26 – 27.
[74] Exhibit R1: G2, page 140.
·In addition to Mr Marson's criminal offending, the Respondent contends that his misconduct to date in relation to his parole order is also serious and should be considered as per paragraph 8.1.1(2)(a) of the Direction.
·Mr Marson’s misconduct includes acting in a deceptive and uncooperative manner to his parole agency by continuously refusing to provide his accommodation details, and not residing at the nominated address in contravention of the residential condition attached to his parole order.[75] As a result of his conduct, on 28 June 2023, the Parole Board suspended Mr Marson's parole order, stating that he was ‘considered to pose an unacceptable risk of committing an offence and had failed to comply with the order.’[76]
[75] Exhibit R1: G2, page 140.
[76] Ibid.
·Mr Marson was reported to have been ‘deceptive’ in his disclosures to the parole agency and was ‘unwilling to comply with his parole conditions’.[77] For example, after a text message to Mr Marson requesting his accommodation details on 18 May 2023, Mr Marson replies ‘it was your people who violently invaded my territory and gave me no chance to argue against it’. A report by Senior Practitioner Belinda Cronje at Specialised Clinical Services notes that Mr Marson's risk factors include ‘deceptive behaviour … reluctance to engage in intervention … no support network … [c]urrent deceptive, hostile, and evasive behaviour towards Community Corrections’.[78]
[77] Exhibit R6: SM2, page 76.
[78] Exhibit R6: SM2, page 166.
·Addressing the nature and seriousness of Mr Marson’s conduct, the Respondent contends that Mr Marson's conduct, which involves violence against police officers during the course of their duties and breaches of domestic violence orders protecting his ex-wife and their child, should be viewed as very serious pursuant to paragraph 8.1.1(a) and 8.1.1(b)(ii) of the Direction.
·In his sentencing remarks, Magistrate Bamberry describes Mr Marson's offending as ‘very serious’, highlighting to Mr Marson that his ‘criminal history will start with a term of imprisonment’ whilst ‘most people start with fines’.[79]
·The Respondent submits that the factors surrounding Mr Marson's offending make his offence particularly concerning. These factors include Mr Marson releasing gas from a gas cannister in a residential neighbourhood stating that he would ‘go out in a blaze of glory’, nailing around 50 nails to the door, barricading himself with wooden planks, and failing to surrender himself to police resulting in his forced removal after 15 hours by the Police Public Riot Squad.
·The Respondent also submits that the consequences of Mr Marson's conduct highlight the very seriousness of his criminal offending. Not only did Mr Marson's conduct lead to public resource costs that will ultimately be borne by the wider Australian community, more significantly, his conduct put the safety of the people in his community at risk. This included police officers and emergency services who were called out and remained overnight during the siege situation that he created. The police prosecutor stated in proceedings that ‘there was approximately eight different types of police crews in attendance: senior police officers, PRCT officers, Queensland Ambulance, Fire and other emergency services.’[80] Mr Marson's conduct also caused fear to, and disrupted the daily lives of, persons and families residing in the neighbourhood, who had to be evacuated to temporary accommodation. Notably, his conduct was so significant that it was reported by the local media.[81]
·In relation to Mr Marson's failure to comply with his parole order and ‘deceptive’ behaviour towards the Parole Agency, the Respondent submits that such conduct should be viewed as serious. Taken in conjunction with Mr Marson's two breaches of domestic violence orders (one breach of which he describes as a ‘harmless act’.[82] Mr Marson's conduct to date indicates a concerning lack of respect for the law in circumstances where the court had allowed him the leniency of parole. The Respondent submits that offences committed while an individual is conditionally at liberty ought to be viewed particularly seriously.[83] Such offending reveals a tendency of Mr Marson to take advantage of the leniency of Australian authorities. In circumstances where Mr Marson comes before this Tribunal asking for yet another chance, Mr Marson's history of exploiting such second chances ought to cause the Tribunal real concern.
·Addressing 8.1.1(1)(c) – sentence imposed by the Court - The Respondent further contends that the very serious nature of Mr Marson's offending is reflected in his sentence of imprisonment of 12 months for each of his four offences to be served concurrently. The Respondent refers to the Tribunal's comments on PNLB and Minister for Immigration and Border Protection [2018] AATA 162, that '[s]entences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved'. The Respondent submits that the custodial sentence imposed by the Court reflects the objective seriousness of Mr Marson's offending.
·The Respondent notes that although Mr Marson was granted immediate parole at the time of sentencing (which he eventually breached leading to time in custody), Magistrate Bamberry stated in his sentencing remarks that the immediate parole order was only granted as Mr Marson had already served four months in pre-sentence custody.[84]Further, Mr Marson was taken into custody on 24 July 2023 after his parole order was suspended.[85]
·Additionally, the Respondent also notes that crimes of a violent nature against women and acts of family violence are to be viewed as very serious, regardless of the sentence imposed (paragraph 8.1.1(c)).
·Addressing 8.1.1(1)(d) - frequency of offending and any trend of increasing seriousness - The Respondent acknowledges that Mr Marson does not have a history of criminal offending, though notes that Mr Marson has repeatedly breached court orders including two domestic violence orders and his parole order.
·In summary, the Respondent contends that Mr Marson's offending should be viewed as very serious.
[79] Exhibit R1: G2, pages 43 – 44.
[80] Exhibit R1: G2, page 36.
[81] Exhibit R1: G2, pages 221-222.
[82] Exhibit R1: G2, page 122.
[83] DGPZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 115 at [79].
[84] Exhibit R1: G2, page 43.
[85] Exhibit R1: G2, page 140.
As the Tribunal understands his argument, Mr Marson contends in relation to this consideration:[86]
[86] Exhibits A3, A4, A5 and A5.1.
·17 March 2016 - The Trespass charge was dropped because the Prosecution knew they would lose.
·22 November 2022 - I contested those accusations - the details are given later.
·6 December 2022 - I did not commit two assaults - the prosecution dropped one of those charges because it made no sense. The other was only assault in the statutory sense that I ‘hindered’ the police.
·24 July 2023 - I was actually arrested on the 19th, not the 24th.
·30 October 2023 - The term ‘perpetrator’ does not do justice to what happened - it was collective self defence. I signed a statement after the incident because the situation was so clear cut.
·In Part V, starting at Section 13,[87] by my reading the Respondent does not express an opinion until Sections 18 and 19. ‘The Respondent contends that Mr Marson’s misconduct to date in relation to his parole order is also serious.’ This is simply incorrect - the parole breach was caused by a trivial problem (housing) in turn caused entirely by the police/prosecution. Since the Respondent’s side are responsible for making me ‘homeless’ they have zero moral authority to complain about me being homeless (or at least not veriﬁably homed). This is such a simple point that I contend that it is impossible for the Respondent to be stupid enough to fail to understand it. They are therefore, yet again, being dishonest. The Respondent quotes me on this issue in Section 20 and quotes a psychologist who lists risk factors (as she sees it). Note that despite these risk factors, after initial problems, life was going very well for me on parole - and there is every reason to believe that will continue. But I want my daughter to enjoy all the beneﬁts of having a successful and dedicated second parent nearby.
·Section 21 states that ‘The Respondent contends that Mr Marson’s conduct, which involves violence [sic] against police... should be viewed as very serious.’ This contention does not bear scrutiny: ﬁrstly, I only threatened myself; secondly, the ‘assault’ was nominal only (a general act which hindered); thirdly, I went out of my way to minimize risk before the police entered; and fourthly, when the TRO landed on me with his shield at the end I said ‘This is a good training exercise for you guys’ (in practise that’s all it was). In other words - it bore the hallmarks of a protest more than anything else. The Respondent is deeply shocked by this because they are horriﬁed that anyone would come up with a thoughtful response to the human rights violations which have become a part of excessive DV enforcement.
·Section 22 states that Magistrate Bamberry described my offending as ‘very serious.’ Magistrate Bamberry also did not accuse me of DV against M (merely asking a question) and refused to listen to my uncontested accusation of DV including actual physical assault against M, so he obviously does not want to rock the boat either. But inevitably at some point someone was going to call out the excessive DV enforcement in Australia for what it really is.
·Section 23 lists various factors of concern to the Respondent, including ‘releasing gas from a gas cannister in a residential neighbourhood.’ By this they mean to imply that the neighbours were at risk. From a scientiﬁc perspective this is simply false - if there was such a risk I would not have done it. We were on good terms with our neighbours. The decision of the police to evacuate nearby houses was in reality for practical reasons.
·Section 24 lists more factors of concern to the Respondent. The accusation that I caused a risk has been addressed in my replies to Sections 21 and 23; I do not believe that any of my neighbours were at any point in ‘fear’. The Respondent also mention the cost of the siege to public ﬁnances. Note that my presence in Australia has so far been entirely beneﬁcial to the country, and this legal case will be no exception. If I, as someone with an innate and deeply held appreciation of critical thinking and natural philosophy, can make a good case that people should take an objective approach to DV - then maybe policies will be adopted that actually do reduce DV, rather than those which fall into the ‘If all you have is a hammer’ policy trap (this becomes increasingly difficult at low per capita DV levels). Note that the idea that current policies may actually make DV worse, which I explained in my previous paper, originally came from another inmate who was exasperated at the insanity of the DV system. Naturally, this kind of thinking freezes the Respondent’s soul - because modern politicians must (apparently) be able to solve any problem anyone ever comes up with. They cannot - I have to point that out because the Respondent seems to exist in an alternative universe. The Respondent also points out that the siege was reported in the local media - yes, that was the point. Hopefully, I can play this so that it leads (through better policies) to fewer women getting killed. I am heterosexual. That outcome would very much be in my best interests.
·In Section 25 the Respondents seems to imply that there were DVO violations while I was on parole - this was not the case, they were part of the protest - and also omits a closing parenthesis. The Respondent uses this falsity to come to a (by deﬁnition) false conclusion: ‘the Applicant’s conduct to date indicates a concerning lack of respect for the law in circumstances where the court had allowed him the leniency of parole... Such offending reveals a tendency of the Applicant to take advantage of the leniency of Australian authorities... the Applicant comes before this Tribunal asking for yet another [sic] chance, the Applicant’s history of exploiting such second chances ought to cause the Tribunal real concern.’ Here we witness the pinnacle of the crescendo of dishonesty perpetrated by the Respondent. They clumsily transpose events forward in time; they blow up the one parole problem (caused entirely by themselves) into an ongoing concern in shameless deﬁance of all logical analysis; and, they describe revocation as ‘yet another’ chance, when obviously the problem during parole (veriﬁable housing) would cease to even be a problem after parole (and for the six weeks before that - motels exist). This is the actual ‘substance’ of the Respondent’s main argument against revocation - that there is a non-negligible risk of reoffending. And they based it on a lie. They could not even manage to make it grammatical.
·Section 26 is entirely subjective and arbitrary. If the police deﬁne any hindrance as ‘serious’ then any such hindrance is by deﬁnition serious. The Respondent uses the word ‘objective’ because they know it is not. As expected, the Respondent makes no reference whatever to my contention - validated by the false cover story told to the media by the police - that pre-emptive ouster clauses almost always represent a human rights violation.
·Section 27 does not make a clear point while in Section 28 the Respondent notes that ‘crimes of a violent nature against women and acts of family violence are to be viewed as very serious.’ But I have no tendency to commit those. In particular, violence against women baffles me. Section 29 misdescribes my court order breaches with the word ‘repeatedly’ - two of the breaches were in the same incident, so the breach was repeated once only. Section 30 again repeats that they think my offending should be viewed as serious. My offending was an act of protest, causing no actual harm, against a truly disturbing sector of law enforcement in Australia. Maybe the Respondent is not ready to have that epiphany - but they need to have it.
[87] The Tribunal understands this as a reference to paragraphs [13] of Exhibit R4, the Respondent’s Statement of Facts, Issues and Contentions.
Paragraphs 8.1.1(1)(a)(i), 8.1.1(1)(a)(ii) and 8.1.1(1)(a)(iii)

The Respondent contends:[169]
·Consistent with the expectations of the community prescribed by Direction 99, the Respondent contends that the Australian community would expect Mr Marson's visa to be cancelled, given that the nature of his offending constitutes serious offending, as well as his family violence conduct. In the Respondent's submission, the community's expectations ought to weigh heavily against revocation.
[169] Exhibit R4: Respondent’s SFIC, page 21 at [79].
Mr Marson contends that:[170]
·Sections 77, 78 and 79 cover the expectations of the Australian community and how they relate to my case. I contend here that anyone in the Australian community or any other community who understood my bond with Child L would expect me to stay in Australia and would appreciate that there is a negligible risk of reoffending.
·The Respondent disagrees with this, but it is not normal people (or anyone else I meet in person) who are offended by me - only phantoms who I seem to endlessly converse with through the legal system. Lawyers and those politicians hopelessly captured by absurd ideologies do not constitute the Australian community. I therefore advocate that Primary Consideration 5 be weighted in favour of revocation.
[170] Exhibit A5: Statement in Response to Home Affairs Final Submission, page 13.
The next question is whether there are any factors which modify the Australian community’s expectations.
This question is informed by the principles in paragraphs 5.2(4) to (6) of the Direction. In summary these are:
·Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa.
·The Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time.
·In relation to decisions to refuse, cancel and revoke cancellations of visas, Australia will generally 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.
·The level of this tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
·The nature of a 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 a visa outcome that is not adverse to the non-citizen.
·In particular, the inherent nature of certain types of conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Paragraph 8.5(3) provides that the Australian community's expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. The Direction further explains at Paragraph 8.5(4):
‘This consideration is about the expectations of the Australian community as a whole, and in this respect, decision–makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.’
Sub-paragraph 5.2(4) uses the term ‘limited stay visa’ which is not defined in the Act. The Act does however create a taxonomy of visas. Relevantly for present purposes, section 30 of the Act contemplates both (1) ‘permanent’ visas, which permit a right to remain, ‘indefinitely’; and (2) ‘temporary visas’, which provide a conditional right to remain. ‘Limited stay’, as used in the Direction, seems to be a reference to non-permanent or ‘temporary’ visas.
Tribunal’s Consideration
Mr Marson held a Class BS Subclass 801 Partner visa. This is a permanent visa permitting the holder to travel to and enter Australia for 5 years from the date the visa was granted.[171]
[171] Migration Regulations 1994 (Cth), reg 801.511.
This implies that sub-paragraph 5.2(4)’s low tolerance does not apply.
Mr Marson has lived in Australia since he was 40 and began offending seven years later. Mr Marson has made some modest contributions to the Australian community as a worker.
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. This is not the case with Mr Marson.
The Tribunal has also found Mr Marson’s offending conduct to be very serious.
In particular, the Tribunal has found that he committed an act of family violence[172] and committed crimes against police officers in the performance of their duties[173].
[172] The Direction, paragraph 8.5(2)(a).
[173] The Direction, paragraph 8.5(2)(d).
The Tribunal also observes the requirements of paragraph 8.4(3) of the Direction which dictate that the expectations of the Australian community apply regardless of whether a non-citizen poses a measurable risk of causing physical harm to the Australian community. The Tribunal has found above that Mr Marson poses a risk of re-offending.
The Tribunal is satisfied that Mr Marson has breached the Australian community’s expectations by his criminal offending which involved serious breaches of Australian laws. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.
Conclusion: Primary Consideration 5: Expectations of the Australian community
This consideration carries significant weight in favour of affirming the reviewable decision.
OTHER CONSIDERATIONS
The Tribunal now considers each of the four sub-paragraphs (a), (b), (c) and (d) set out in Other Considerations listed in paragraph 9 of the Direction.
Other Consideration (a): Legal consequences of the decision
Mr Marson has not made any contentions that he is owed non-refoulement obligations. There is no evidence before the Tribunal to suggest that non-refoulement obligations are owed to Mr Marson.
Accordingly, the Respondent contends that this other consideration should be afforded neutral weight. Mr Marson did not make a submission on this consideration.
Tribunal’s Consideration
Affirming the reviewable decision would mean that:
·Mr Marson would be liable to be removed from Australia as soon as reasonably practicable and he would be held in immigration detention until that time;[174]
·the only foreseeable matter that would delay his removal is an appeal against the decision; and
·he would not be able to apply for another visa while in Australia (with the exception of a protection visa or a bridging visa).[175]
[174] Sections 189 and 198 of the Act.
[175] Section 501E of the Act.
This is the way that this legislative scheme is intended to work.
No particular hardship was raised or identified with respect to Mr Marson’s accommodation in immigration detention.
Tribunal’s Finding: Other Consideration (a): Legal consequences of the decision
The Tribunal considers that Other Consideration (a) carries a neutral weight.
Other Consideration (b): Extent of impediments if removed
Clause 9.2(1) of the Direction provides:
1Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to them in that country.
Mr Marson’s contentions
Mr Marson contends that the idea of being separated from Child L is unthinkable.[176] The Tribunal understands this to mean that Mr Marson will suffer emotionally and psychologically if he returns to the UK due to his physical separation from Child L.
[176] Exhibit A5: Applicant’s Statement in Response to Home Affairs Final Submission, page 13.
The Respondent’s contentions
The Respondent contends:[177]
[177] Exhibit R4: Respondent’s SFIC, [74] – [78].
·Mr Marson is aged 48 and has no known health issues.
·Accordingly, based on the current evidence he is unlikely to face any health impediments to his removal. In making this contention the Respondent notes that although Mr Marson has made threats of self-harm/suicide he has been assessed as a minimal risk of engaging in suicide/self-harm behaviours.[178]
·Mr Marson has lived the significant majority of his life in the UK, having resided in UK until the age of 40.[179] The Respondent contends that he is not likely to face any language or cultural barriers to impede his return into the UK community. The Respondent further contends that Mr Marson will have transferrable skills to find a job in the UK as well as the support of his parents, a sister and a cousin who all live in the UK.[180]
·Mr Marson has contended that he will face emotional hardship upon a return to the UK due to the separation of his daughter.[181] The Respondent contends that limited weight should be placed on this emotional hardship in the following circumstances:
owhere emotional hardship is not contemplated as a stated an impediment to removal in Direction 99; and
owhere Mr Marson has had limited involvement with his daughter’s life and has not seen his daughter since November 2022.[182]
·In summary, the Respondent contends that there are no impediments to removal and that this consideration should be given neutral weight.
[178] Exhibit R6: SM2, page 65.
[179] Exhibit R1: G2, page 232.
[180] Exhibit R1: G2, page 92.
[181] Exhibit R1: G2, pages 85 – 97.
[182] Exhibit R5: Witness Statement at [19] – [20].
Tribunal’s Consideration
This aspect of the Direction requires the Tribunal to assess and consider the extent of any impediments that Mr Marson, if removed from Australia to the UK, will face in establishing himself and maintaining basic living standards taking the specific factors below into account.
Sub-paragraph 9.2(1)(a) – the non-citizen’s age and health
Mr Marson is 48 years old, appears in good health and gave no evidence of any health condition.
The Tribunal concludes, after looking holistically at the available evidence of Mr Marson’s general state of health in the past and currently, that he is healthy and does not appear to suffer from any chronic physical health issue that would currently impede his ability to re-settle and maintain basic living standards in the UK.
The Tribunal acknowledges that Mr Marson will likely suffer emotionally and psychologically if he is deported because he will be physically separated from Child L.
Sub-paragraph 9.2(1)(b) – any substantial language or cultural barriers
The Tribunal considers that Mr Marson, based on his oral testimony and the fact that he lived in the UK until he was 40 and has subsequently travelled back there, would not face any linguistic difficulties if he returned to the UK.
The Tribunal also considers that Mr Marson is unlikely to face significant cultural issues for the same reason. The Tribunal acknowledges Mr Marson’s contentions of emotional distress but observes that these are more personal than cultural.
Sub-paragraph 9.2(1)(c) – any social, medical and/or economic support available to them in that country
The Tribunal considers that, based on the evidence, Mr Marson would have medical, social and economic support available to him in the UK to the same extent as any other UK citizen, with potentially additional support from his sister. Mrs Dodson’s testimony suggests that she may not be in a position to offer significant support to Mr Marson.
Tribunal’s analysis and consideration
The Tribunal has considered above the extent of any impediments that Mr Marson, if removed from Australia to the UK, will face in establishing himself and maintaining basic living standards, considering the specific factors set out in paragraph 9.2(1), the evidence before the Tribunal and the parties’ respective contentions.
Tribunal Finding: Other Consideration (b): Extent of impediments if removed
Having regard to the analysis referrable to each of the three sub-paragraph components of this other consideration (b), the Tribunal finds that Mr Marson would face a level of emotional and psychological hardship if he was returned to the UK. This situation would be aggravated by M’s attitude on allowing communication between Child L and Mr Marson.
This hardship would be aggravated by the likely short-term difficulties he would face in re-establishing himself in the UK, ameliorated by his family network there.
While there are risks that these difficulties and hardship may affect Mr Marson’s mental health, the Tribunal considers that his age, cultural propinquity to the UK and support from his family in the UK are protective risk management factors that mitigate and manage these risks.
This consideration carries moderate weight in favour of setting the reviewable decision aside.
Other Consideration (c): Impact on victims
Clause 9.3(1) of the Direction states:
1. ‘Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.’
Summarising the Respondent’s contentions as the Tribunal understands them:
·The Tribunal is referred to the statement of M, Mr Marson’s former wife.[183] As M is a victim of Mr Marson’s offending, the Tribunal may wish to consider her statement and her other evidence that is before the Tribunal, as well as the decision in Blake and Minister for Immigration, Citizenship and Multicultural Affairs.[184]
·The Respondent contends that based on the current evidence this consideration weighs against the Applicant.
[183] Exhibit R5: Witness Statement.
[184] Blake and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 492 at [144] – [147].
Mr Marson contends:[185]
·Sections 89 to 92[186] cover the potential impact on victims (presumed or real). Note that I was the recipient of prolonged verbal, emotional, and sometimes physical abuse from M - but this is just a normal part of life with someone who is mentally ill. Note also that the ﬁnancial abuse she alleges must be set against other relevant events - like me giving her a deposit to buy a house (17)(18).[187] M is often not safe to be around - she has a highly volatile temperament. She talks of my effect on her and Child L’s life, but does she talk about the terrible effect she is having on mine and Child L’s life? Child L is an Australian citizen too - the idea that Child L should be trapped with her mother irrespective of what mood M is in is a nightmare. Any impartial observer would conclude that leaving a vulnerable four year girl in the sole care of a mentally ill mother would cause psychological harm to that child. Note that M would beneﬁt massively from me being present (although she would not admit it) because with another dedicated parent available she would get time off from childcare responsibilities to do her own thing. I therefore advocate that this Consideration be weighted in favour of revocation.
[185] Exhibit A5: Statement in Response to Home Affairs Final Submission, page 13.
[186] The Tribunal understands this as a reference to paragraphs [89] to [92] of Exhibit R4, the Respondent’s Statement of Facts, Issues and Contentions.
[187] Exhibit A6: Collated Applicant Bundle One, pages 17 – 18.
There is some evidence before the Tribunal as to the impact of Mr Marson’s Index Offences on his neighbours in Labrador. This includes His Honour Magistrate Bamberry’s sentencing decision[188] and a media report on the Index Offences.[189] The Tribunal considers that the forced unplanned evacuation had a considerable impact but is unable to ascertain from the evidence before it how many people were impacted by Mr Marson’s offending in Labrador.
Tribunal’s Finding: Other Consideration (c): Impact on victims
[188] Exhibit R1: G2, page 43.
[189] Exhibit R1: G4, pages 221 – 222.
Even with the reservations the Tribunal has about M’s evidence, Mr Marson’s Index Offences clearly had an adverse impact on both her and her feelings about the former matrimonial home.
It is probable that the Index Offences had a lesser but still adverse impact on Mr Marson’s neighbours.
Based on the abovementioned statements, the Tribunal finds that this Other Consideration (c) carries moderate weight in favour of affirming the reviewable decision.
Other Consideration (d): Impact on Australian business interests if Mr Marson cannot remain here
Paragraph 9.4 (1) says the Tribunal must consider any impact of a decision to affirm the reviewable decision on Australian business interests. The Direction makes clear that this consideration would generally only be given weight where an employment link is involved and a decision to cancel Mr Marson’s visa ‘would significantly compromise the delivery of a major project, or delivery of an important service in Australia’.
Mr Marson provided evidence of his self-published papers.[190] He also testified about these papers and how he intended progressing the matters he raised in these.[191]
[190] Exhibit A5: Statement in Response to Home Affairs Final Submission, pages 9 and 10. For links please see page 76 of these reasons and footnotes 143 – 145.
[191] Transcript: page 30, line 20 – page 32, line 44.
Mr Marson provided evidence of his employment history in Australia, having worked as a stevedore, handyman, operations and maintenance staff member and as a kitchenhand.[192]
[192] Exhibit R1: G2, page 94 and Transcript, page 25, line 7 – page 26, line 6.
The Respondent contends that there is no evidence that the Applicant's removal from Australia would significantly compromise the delivery of a major project, or delivery of an important service in Australia. Consequently this consideration should be given neutral weight.
Assessing this consideration the Tribunal notes that the site where Mr Marson has published his papers is an independent digital repository that involves no moderation procedure and does not require endorsement or peer review.[193] Parsing his testimony and evidence, Mr Marson did not provide any evidence of any form of research funding or research collaboration to support the possibility that his ideas could lead to further research by an Australian institution. There is no evidence that his papers have been peer-reviewed. There is no evidence that Mr Marson has any supporting tertiary science or mathematics qualifications. There is no evidence that any of Mr Marson’s past employers would face difficulty in hiring somebody else to replace Mr Marson. There is no evidence that Mr Marson's removal from Australia would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Tribunal’s Finding: Other Consideration (d): The impact on Australian business interests if Mr Marson cannot remain here
[193] See
The Tribunal finds that Other Consideration (d) carries neutral weight.
Findings: Other Considerations
The Tribunal now summarises the respective weights it has allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:
Other Consideration (a): Legal consequences of the decision:
·This consideration has a neutral weight.
Other Consideration (b): Extent of impediments if removed:
·This consideration has moderate weight in favour of setting aside the reviewable decision.
Other Consideration (c): Impact on victims:
·This consideration has moderate weight in favour of affirming the reviewable decision.
Other Consideration (d): Impact on Australian business interests:
·This consideration has neutral weight.
ADDITIONAL CONSIDERATIONS

The Direction does not limit the other considerations to those listed in the Direction (paragraph 9(1) of the Direction).[194]
[194] Per Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471.
There are no additional considerations before the Tribunal in this matter.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, Mr Marson does not pass the character test.
In determining whether there is ‘another reason’ to revoke the cancellation decision, the Tribunal has applied the Direction to this matter’s specific circumstances.
The Tribunal find as follows:
Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct:
·This consideration weighs very heavily in favour of affirming the reviewable decision.
Primary Consideration 2: Whether the conduct engaged in constituted family violence:
·This consideration has a moderate weight in favour of affirming the reviewable decision.
Primary Consideration 3: The strength, nature and duration of ties to Australia:
·This consideration carries moderate weight towards setting aside the reviewable decision.
Primary Consideration 4: Best interests of minor children in Australia affected by the decision:
·This consideration has a strong weight in favour of setting aside the reviewable decision.
Primary Consideration 5: Expectations of the Australian Community:
·This consideration carries significant weight in favour of affirming the reviewable decision.
The Tribunal has also set out above the weight attributable to the other considerations and the additional consideration and applied the process outlined in Demir v Minister for Immigration, Citizenship and Multicultural Affairs at [21]:[195]
The metaphor of “weighing” relevant considerations should not be taken too literally. The exercise is not mathematical and cannot depend on the simple aggregation of factors on each side of a ledger. The conclusion as to whether there is “another reason” for the purposes of s 501CA(4)(b)(ii) necessarily involves persuasion of a human decision-maker, whose thought processes cannot be reflected in lines of code, as to what is the right result in the circumstances. That persuasion flows from the decision-maker’s personal understanding as to the significance of each of the factors they are required or permitted to take into account, in the light of all the material they have considered. So much is consistent with the decision-maker’s duty to “call his own attention to the matters which he is bound to consider” (Peko-Wallsend at 39 (Mason J), quoting Wednesbury at 229 (Lord Greene MR)) and to give “proper, genuine and realistic consideration to the merits of the case” (Khan v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Gummow J, 11 December 1987; noted [1987] FCA 457; (1987) 14 ALD 291, 292). Correspondingly, the statutory specification of mandatory considerations requires those considerations to be taken into account, but not necessarily to be given any particular degree of weight: Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1758; 176 FCR 153 at [110] (Rares J) (varied on appeal (Australian Competition and Consumer Commission v Telstra Corporation Ltd [2009] FCAFC 68; 176 FCR 203), but not on this point).
[195] Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870.
Mr Marson summarises his argument with:[196]
·In conclusion (Section 93)[197] and for all the reasons given, my analysis is that the Respondent’s arguments are entirely without merit. The Respondent has failed to make even the simplest point in their favour, indeed the [sic] sometimes make the opposite point. In other places their arguments disintegrate upon the most cursory analysis. The worst ﬂaw in the Respondent’s case is their point blank refusal to accept my reasons for the events of December 2022, even though my reasons make perfect sense. Instead, they ignore me, they ignore the litany of lies told by their own side, and they assume exactly what they need to. To quote Bertrand Russell: ‘We believe, ﬁrst and foremost, what makes us feel that we are ﬁne fellows.’ But the Respondent is not behaving like a ‘ﬁne fellow’, their adopted ideology is the real menace to society; for me meanwhile the risk of reoffending is negligible. Most importantly I have to be with or near my daughter. In my family children are never abandoned. I am not just passing on a family tradition - it is genetically hardwired into my thinking. There is not even a question of doing something contrary to this. Finally, we should note that the Respondent has failed to offer any convincing argument to the effect that the siege was an act of coercive control. Since M was unarguably trying to coerce me out of a fair divorce settlement the siege can only be viewed as an act of symbolic defence.
·In response to Section 94 I reaffirm my position from 12 April 2024 (with bracketed edit): ‘I ask the Tribunal to set aside the decision under review in accordance with Section 43[1(c)(i)] of the AAT Act 1975 to the effect that I be granted a Subclass 103 - Parent Visa or if the Tribunal cannot do that to grant me the appropriate bridging visa [or reinstate the Partner visa]. Please note that any visa so granted should last for at least fourteen years without renewal from now, that is until Child L is eighteen years old.’
[196] Exhibit A5: Statement in Response to Home Affairs Final Submission, page 14.
[197] The Tribunal understands this as a reference to paragraphs [93] of Exhibit R4, the Respondent’s Statement of Facts, Issues and Contentions.
The Respondent’s concluding contention is:
·The Respondent contends that, having regard to the primary and other considerations in Direction 99, the Tribunal should not exercise the discretion in s 501CA(4) of the Migration Act to revoke the cancellation of the Applicant's visa. The Respondent contends that, to the extent that the Tribunal finds that Primary Considerations 3 and 4 (and any other considerations) weigh in the Applicant's favour, they are outweighed by Primary Considerations 1, 2 and 5 and the other consideration of impact on the victims. Accordingly, and having regard to the guiding principles expressed at paragraph 5.2 of the Direction, the Respondent contends that there is not another reason why the cancellation decision should be revoked.
A comprehensive, holistic and integrated view of the weights allocated to the Primary Considerations and the Other Considerations leads this Tribunal to a finding that the weights allocated to Primary Considerations 1, 2 and 5 and Other Consideration (c) outweigh the weights allocated to Primary Considerations 3 and 4 and Other Consideration (b). This leads the Tribunal to be satisfied of there not being another reason to revoke the mandatory cancellation of Mr Marson’s Visa. Accordingly, the Tribunal makes a finding of affirming the reviewable decision.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 4 March 2024 to not revoke the cancellation of Mr Marson’s Visa.

I certify that the preceding two-hundred and forty three paragraphs (243) paragraphs are a true copy of the reasons for the decision herein of Member D. Cosgrave

..............[SGD].............
Associate
Dated: 27 June 2024

Dates of hearing: 20, 21, 22 and 23 May 2024

Representation for the Applicant: Self-represented

Solicitor for the Respondent:
Mr Alex Zhang
Clayton Utz

ANNEXURE A – EXHIBIT REGISTER

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

APPLICANT’S SUBMISSIONS

A1

QLD Crime Rates 2001 to 2023

A

09.04.2024

12.04.2024

A2

DV Homicides in QLD

A

09.04.2024

12.04.2024

A3

Applicant’s Statement of Facts Issues and Contentions (‘SFIC’)

A

12.04.2024

12.04.2024

A4

Updated Applicant’s Statement of Facts Issues and Contentions

A

12.04.2024

06.05.2024

A5

Statement in Response to Home Affairs Final Submission

A

08.05.2024

08.05.2024

A5.1

(Updated - very minor edit) Statement in Response to Home Affairs Final Submission

A

08.05.2024

08.05.2024

A6

Collated Applicant Bundle One

A

Various

08.05.2024

A7

Collated Applicant Bundle Two (Evidence 2015-2016)

A

Various

15.05.2024

A8

Collated Applicant Bundle Three (Evidence 2017-2019)

A

Various

15.05.2024

A9

Collated Applicant Bundle Four (Evidence 2020-2021)

A

Various

15.05.2024

A10

AAT Evidence Contents

A

N/A

15.05.2024

A11

Video Evidence – ‘11 VID_20210203_122040_r’ – Video of Applicant’s daughter at a playground slide

A

N/A

15.05.2024

A12

Video Evidence – Home Video YouTube Link

A

N/A

29.03.2024

A13

The Significance of a Father’s Influence – Focus on the Family

A

15.05.2024

15.05.2024

RESPONDENT’S SUBMISSIONS

R1

Section 501 G-Documents

R

Various

25.03.2024

R2

Supplementary G Documents

R

Various

25.03.2024

R3

Submission from Third Party - Redacted

R

n/a

07.03.2024

R4

Respondent’s Statement of Facts Issues and Contentions (‘RSFIC’)

R

01.05.2024

01.05.2024

R5

Witness Statement M Marson

R

30.04.2024

01.05.2024

R6

Bundle of Material Produced Under Summons

R

Various

01.05.2024

ANNEXURE B – PROCEDURAL CHRONOLOGY

Date

Event

Description

29/04/2024

Respondent requests an extension of time

The Respondent's representative made a request for a two-day extension to submit their Statement of Facts, Issues and Contentions (SFIC). The original deadline was 29 April, the requested extension was until 1 May.

29/04/2024

Applicant denies the Respondent's request for an extension of time.

The Applicant notifies the Tribunal that he opposes the Respondent's request for an extension of time.

30/04/2024

Tribunal grants an EoT to the Respondent.

The Tribunal granted an EoT request to the Respondent's representative based on the following;

The Respondent not being in a position to file their SFIC, and the evidence they which to rely upon

The hearing is set for the 13 and 14 May, giving the Applicant enough time to view the Respondent's materials and respond.

The SFIC is a key document in s501 Visa-Ex hearings.

If the Applicant seeks additional time to respond to the Respondent's SFIC, the Tribunal would be willing to consider a request.

The Tribunal granted a commensurate two day extension to the Applicant to file their submissions-in-reply. The original deadline was 8 May, the extension was granted until the 10 May.

01/05/2024

Respondent notifies the Tribunal about potential issues with the Tribunal's Direction dated 30/05/2024

The Respondent's representative, raised the following concerns with the Applicant and the Tribunal;

the Tribunal granted a commensurate extension to the Applicant on its Directions dated the 30/05/2024.

While granting commensurate extensions are Tribunal practice to ensure one party is not negatively affected by extensions granted to the other party, in this instance, the Applicant's extension will be inconsistent with the two-day rule (in breach of s500(6J) of the Migration Act).

To ensure the two-day rule is met for the hearing dates set for 13 and 14 May, the final date the Applicant may file evidence will be 8 May (due to a weekend), this would still give the Applicant seven (7) days to respond, noting that submissions-in-reply are meant to be brief in nature.

01/05/2024

Respondent files SFIC and additional materials

The Respondent's representative, files with the Tribunal the Respondent's SFIC and additional materials which include a bundle of summons materials.

02/05/2024

Tribunal makes multiple attempts to contact the Applicant via phone

A Tribunal officer attempted to contact the Applicant in relation to the issues raised by the Respondent's representative in regards to the two-day rule being breached (since the Applicant did not reply to the Respondent's concerns). The Tribunal also intended to clarify the following:

if the Applicant intends to file their submissions-in-reply on 10 May.

If the Applicant is aware of the issues raised by the Respondent, and if he has a response.

If the Applicant is aware of the two-day rule (s500(6J) of the Migration Act) and its application.

If the Applicant is aware of the nature of submissions-in-reply

If the Applicant is aware that he would still have seven (7) days to reply if his submissions were consistent with the two-day rule

Applicant was unreachable when contacted at multiple times throughout the day.

02/05/2024

Tribunal amends its Direction dated 30/05/2024

The Tribunal published a Direction to update its Direction dated 30/05/2024. Noting the Tribunal's error when granting the commensurate extension (since the extension would breach the two-day rule). The updated Direction re-classified the due date of the Applicant's submissions-in-reply to the original date of the 8 May (changed from the 10 May) in order to satisfy the two-day rule. Noting that by keeping the original deadline would still give the Applicant seven (7) days to submit their submissions-in-reply.

06/05/2024

Applicant files an update to their SFIC originally filed on the 12th of April.

The Applicant filed an updated version of their original SFIC. The original SFIC was filed on the 12th of April 2024.

06/05/2024

Applicant emails the Tribunal asking to 'indefinitely postpone' the hearing set for 13 and 14 May

The Applicant emailed the Tribunal asking for the 'indefinite' postponement of his hearing set for 13 and 14 May. The Applicant alleged:

The cancellation of his commensurate extension was 'not legal'.

That an employee of the Tribunal phoned the applicant to 'get some kind of verbal consent'.[198]

On the 2nd of May, the Tribunal cancelled [the Applicant's] two-day extension 'without emailing [him] first’.

The Tribunal's practice was not of 'any fair legal system’.

The Respondent is 'allowed to get away with any infraction they like’.

The Applicant is penalised even though '[The Applicant] was the only one who advocated that we adhere to the rules'.

07/05/2024

The Tribunal vacates the hearing set for 13 and 14 May

The Tribunal vacated the hearing set for 13 and 14 May at the request of Mr Marson. Alternative hearing dates of 16 and 17 May were proposed. The mode of the hearing was changed to video due to the last-minute change of dates.

The Tribunal invited both parties to submit their views on the proposed dates. If failing to hear both views, the Tribunal stated that it will schedule a telephone directions hearing to ensure it receives submissions from both parties about the proposed change of date.

07/05/2024

The Applicant contacts the Tribunal

The Applicant contacts the Tribunal by phone. The Applicant stated that he:

'overreacted' in his previous email to the Tribunal dated 06/05/2024.

had a 'nervous breakdown over the last few days'.

went into a 'tailspin' after receiving the Respondent's email.

The Applicant also stated that he had now read the Respondent's submissions and that the Applicant was happy to submit their submissions-in-reply in adherence with the Tribunal's Directions published on 02/05/2024. The Applicant said that after reading the Respondent's SFIC that his own submissions-in-reply were 'not a big deal’.

A Tribunal officer explained to the Applicant the following:

The issues raised by the Respondent regarding the two-day rule.

The application of the two-day rule.

The nature of submissions-in-reply being brief.

The time period still left for the Applicant to submit their response.

The nature and application of the 84th day deadline.

Upon receiving an explanation of the 84th day deadline, the Applicant stated that he had misunderstood the consequences of the 84th day deadline. The Applicant was under the belief that if the 84th day deadline was not met, he would get his Visa back. The Tribunal officer explained this was not the case - if the Tribunal fails to make a decision on the matter by the 84th day deadline, the Applicant's original non-revocation would be automatically upheld.

The Applicant stated he wished to go ahead with the original dates of the hearing (13 and 14 May).

07/05/2024

The Applicant emails the Tribunal

The Applicant emails the Tribunal with the following:

The Applicant stated to ‘disregard’ his email sent to the Tribunal on the 06/05/2024.

The Applicant stated he ‘misunderstood the situation in writing those emails and the difficulties changing plans would cause’.

The Applicant stated he preferred in-person hearings.

08/05/2024

The Applicant emails the Tribunal

The Applicant stated he wishes the in-person hearings set for 13 and 14 May to go ahead and that he will be submitting more documents later the same day (08/05/2024)

08/05/2024

The Applicant files his submissions-in-reply

The Applicant files his submission-in-reply and extra materials via email to the Tribunal (the Respondent is copied)

09/05/2024

The Tribunal emails a copy of the Draft Exhibit Register to both parties

The Tribunal emails a copy of the Draft Exhibit Register to both parties and asks for confirmation via response email.

09/05/2024

The Applicant responds to the Draft Exhibit Register

The Applicant, in an email, responds to the Draft Exhibit Register stating that he 'could have put more together with two extra days'. The Respondent is copied into this email.

09/05/2024

The Respondent requests to vacate the hearing set for 13 and 14 May.

The Respondent requests the Tribunal vacate the hearing set for 13 and 14 May since the Applicant alleged ‘he could have put more evidence together with two extra days.’ To reflect the Applicant's position, the Respondent requests the Tribunal vacate the hearing set for 13 and 14 May and re-list the matter for 16 and 17 May.

The Respondent’s representative confirmed with a Tribunal officer via telephone that the request was made to address issues of procedural fairness that the Applicant may perceive as being denied to him, per the Applicant's email.

10/05/2024

The Tribunal lists an immediate telephone directions hearing

The Tribunal listed a telephone directions hearing to hear the issues raised by the Applicant and the request to re-list the matter by the Respondent.

10/05/2024

The telephone directions hearing takes place

Both parties are able to attend the telephone directions hearing.

New Directions are set and published by the Tribunal:

The matter is re-listed for 20 and 21 May (the 84th day is 27 May).

The Applicant is given until 15 May to submit any further materials or statements on which he seeks to rely.

15/05/2024

The Applicant files further submissions and materials

The Applicant filed with the Tribunal an updated submissions-in-reply and further photographic and documentary materials.

[198] Note that this would mean the Applicant ignored the Tribunal’s multiple attempts to establish contact.

Date	Event
22 November 2022	Mr Marson’s former wife applies for a protection order. In applying for a protection order she alleges verbal and emotional abuse, sexual abuse, financial abuse, as well as alleging that Mr Marson attempted to kill his father in the United Kingdom in June 2022. A temporary protection order is granted. The Magistrates Court of Queensland at Brisbane grants a Temporary Domestic Violence (DV) protection order against Mr Marson.[14]
29 November 2022	Mr Marson was served with a copy of the 22 November 2022 DV protection order by a police officer.[15]
5 – 6 December 2022	Mr Marson conducts a protest by remaining at the former matrimonial home in Labrador after 3 December 2022 when he was required under the DV protection order to leave, which resulted in the Index Offences.[16]
7 December 2022	Mr Marson is charged and taken into custody.[17]
16 February 2023	The Southport Magistrates Court varies the DV protection order.[18]
20 April 2023	Mr Marson is convicted and sentenced. As he has served 128 Days of pre-sentence custody he is released on parole.[19] The Southport Magistrates Court also issues a further DV protection order.
21 April 2023	Mr Marson’s parole order is amended to include additional conditions pertaining to substance use, mental health, domestic and family violence, and accommodation. Mr Marson did not agree to or sign these conditions.[20]
16 May 2023	The Southport Magistrates Court varies the DV protection order, which is valid until 2028.[21]
28 June 2023	The Parole Board Queensland suspends the Mr Marson's Parole Order.[22]
24 July 2023	Mr Marson is returned to custody for breach of parole.[23]
22 November 2023	Mr Marson is discharged to immigration detention.[24]

Dates of hearing:	20, 21, 22 and 23 May 2024
Representation for the Applicant:	Self-represented
Solicitor for the Respondent:	Mr Alex Zhang Clayton Utz

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
APPLICANT’S SUBMISSIONS
A1	QLD Crime Rates 2001 to 2023	A	09.04.2024	12.04.2024
A2	DV Homicides in QLD	A	09.04.2024	12.04.2024
A3	Applicant’s Statement of Facts Issues and Contentions (‘SFIC’)	A	12.04.2024	12.04.2024
A4	Updated Applicant’s Statement of Facts Issues and Contentions	A	12.04.2024	06.05.2024
A5	Statement in Response to Home Affairs Final Submission	A	08.05.2024	08.05.2024
A5.1	(Updated - very minor edit) Statement in Response to Home Affairs Final Submission	A	08.05.2024	08.05.2024
A6	Collated Applicant Bundle One	A	Various	08.05.2024
A7	Collated Applicant Bundle Two (Evidence 2015-2016)	A	Various	15.05.2024
A8	Collated Applicant Bundle Three (Evidence 2017-2019)	A	Various	15.05.2024
A9	Collated Applicant Bundle Four (Evidence 2020-2021)	A	Various	15.05.2024
A10	AAT Evidence Contents	A	N/A	15.05.2024
A11	Video Evidence – ‘11 VID_20210203_122040_r’ – Video of Applicant’s daughter at a playground slide	A	N/A	15.05.2024
A12	Video Evidence – Home Video YouTube Link	A	N/A	29.03.2024
A13	The Significance of a Father’s Influence – Focus on the Family	A	15.05.2024	15.05.2024
RESPONDENT’S SUBMISSIONS
R1	Section 501 G-Documents	R	Various	25.03.2024
R2	Supplementary G Documents	R	Various	25.03.2024
R3	Submission from Third Party - Redacted	R	n/a	07.03.2024
R4	Respondent’s Statement of Facts Issues and Contentions (‘RSFIC’)	R	01.05.2024	01.05.2024
R5	Witness Statement M Marson	R	30.04.2024	01.05.2024
R6	Bundle of Material Produced Under Summons	R	Various	01.05.2024

Date	Event	Description
29/04/2024	Respondent requests an extension of time	The Respondent's representative made a request for a two-day extension to submit their Statement of Facts, Issues and Contentions (SFIC). The original deadline was 29 April, the requested extension was until 1 May.
29/04/2024	Applicant denies the Respondent's request for an extension of time.	The Applicant notifies the Tribunal that he opposes the Respondent's request for an extension of time.
30/04/2024	Tribunal grants an EoT to the Respondent.	The Tribunal granted an EoT request to the Respondent's representative based on the following; The Respondent not being in a position to file their SFIC, and the evidence they which to rely upon The hearing is set for the 13 and 14 May, giving the Applicant enough time to view the Respondent's materials and respond. The SFIC is a key document in s501 Visa-Ex hearings. If the Applicant seeks additional time to respond to the Respondent's SFIC, the Tribunal would be willing to consider a request. The Tribunal granted a commensurate two day extension to the Applicant to file their submissions-in-reply. The original deadline was 8 May, the extension was granted until the 10 May.
01/05/2024	Respondent notifies the Tribunal about potential issues with the Tribunal's Direction dated 30/05/2024	The Respondent's representative, raised the following concerns with the Applicant and the Tribunal; the Tribunal granted a commensurate extension to the Applicant on its Directions dated the 30/05/2024. While granting commensurate extensions are Tribunal practice to ensure one party is not negatively affected by extensions granted to the other party, in this instance, the Applicant's extension will be inconsistent with the two-day rule (in breach of s500(6J) of the Migration Act). To ensure the two-day rule is met for the hearing dates set for 13 and 14 May, the final date the Applicant may file evidence will be 8 May (due to a weekend), this would still give the Applicant seven (7) days to respond, noting that submissions-in-reply are meant to be brief in nature.
01/05/2024	Respondent files SFIC and additional materials	The Respondent's representative, files with the Tribunal the Respondent's SFIC and additional materials which include a bundle of summons materials.
02/05/2024	Tribunal makes multiple attempts to contact the Applicant via phone	A Tribunal officer attempted to contact the Applicant in relation to the issues raised by the Respondent's representative in regards to the two-day rule being breached (since the Applicant did not reply to the Respondent's concerns). The Tribunal also intended to clarify the following: if the Applicant intends to file their submissions-in-reply on 10 May. If the Applicant is aware of the issues raised by the Respondent, and if he has a response. If the Applicant is aware of the two-day rule (s500(6J) of the Migration Act) and its application. If the Applicant is aware of the nature of submissions-in-reply If the Applicant is aware that he would still have seven (7) days to reply if his submissions were consistent with the two-day rule Applicant was unreachable when contacted at multiple times throughout the day.
02/05/2024	Tribunal amends its Direction dated 30/05/2024	The Tribunal published a Direction to update its Direction dated 30/05/2024. Noting the Tribunal's error when granting the commensurate extension (since the extension would breach the two-day rule). The updated Direction re-classified the due date of the Applicant's submissions-in-reply to the original date of the 8 May (changed from the 10 May) in order to satisfy the two-day rule. Noting that by keeping the original deadline would still give the Applicant seven (7) days to submit their submissions-in-reply.
06/05/2024	Applicant files an update to their SFIC originally filed on the 12th of April.	The Applicant filed an updated version of their original SFIC. The original SFIC was filed on the 12th of April 2024.
06/05/2024	Applicant emails the Tribunal asking to 'indefinitely postpone' the hearing set for 13 and 14 May	The Applicant emailed the Tribunal asking for the 'indefinite' postponement of his hearing set for 13 and 14 May. The Applicant alleged: The cancellation of his commensurate extension was 'not legal'. That an employee of the Tribunal phoned the applicant to 'get some kind of verbal consent'.[198] On the 2nd of May, the Tribunal cancelled [the Applicant's] two-day extension 'without emailing [him] first’. The Tribunal's practice was not of 'any fair legal system’. The Respondent is 'allowed to get away with any infraction they like’. The Applicant is penalised even though '[The Applicant] was the only one who advocated that we adhere to the rules'.
07/05/2024	The Tribunal vacates the hearing set for 13 and 14 May	The Tribunal vacated the hearing set for 13 and 14 May at the request of Mr Marson. Alternative hearing dates of 16 and 17 May were proposed. The mode of the hearing was changed to video due to the last-minute change of dates. The Tribunal invited both parties to submit their views on the proposed dates. If failing to hear both views, the Tribunal stated that it will schedule a telephone directions hearing to ensure it receives submissions from both parties about the proposed change of date.
07/05/2024	The Applicant contacts the Tribunal	The Applicant contacts the Tribunal by phone. The Applicant stated that he: 'overreacted' in his previous email to the Tribunal dated 06/05/2024. had a 'nervous breakdown over the last few days'. went into a 'tailspin' after receiving the Respondent's email. The Applicant also stated that he had now read the Respondent's submissions and that the Applicant was happy to submit their submissions-in-reply in adherence with the Tribunal's Directions published on 02/05/2024. The Applicant said that after reading the Respondent's SFIC that his own submissions-in-reply were 'not a big deal’. A Tribunal officer explained to the Applicant the following: The issues raised by the Respondent regarding the two-day rule. The application of the two-day rule. The nature of submissions-in-reply being brief. The time period still left for the Applicant to submit their response. The nature and application of the 84th day deadline. Upon receiving an explanation of the 84th day deadline, the Applicant stated that he had misunderstood the consequences of the 84th day deadline. The Applicant was under the belief that if the 84th day deadline was not met, he would get his Visa back. The Tribunal officer explained this was not the case - if the Tribunal fails to make a decision on the matter by the 84th day deadline, the Applicant's original non-revocation would be automatically upheld. The Applicant stated he wished to go ahead with the original dates of the hearing (13 and 14 May).
07/05/2024	The Applicant emails the Tribunal	The Applicant emails the Tribunal with the following: The Applicant stated to ‘disregard’ his email sent to the Tribunal on the 06/05/2024. The Applicant stated he ‘misunderstood the situation in writing those emails and the difficulties changing plans would cause’. The Applicant stated he preferred in-person hearings.
08/05/2024	The Applicant emails the Tribunal	The Applicant stated he wishes the in-person hearings set for 13 and 14 May to go ahead and that he will be submitting more documents later the same day (08/05/2024)
08/05/2024	The Applicant files his submissions-in-reply	The Applicant files his submission-in-reply and extra materials via email to the Tribunal (the Respondent is copied)
09/05/2024	The Tribunal emails a copy of the Draft Exhibit Register to both parties	The Tribunal emails a copy of the Draft Exhibit Register to both parties and asks for confirmation via response email.
09/05/2024	The Applicant responds to the Draft Exhibit Register	The Applicant, in an email, responds to the Draft Exhibit Register stating that he 'could have put more together with two extra days'. The Respondent is copied into this email.
09/05/2024	The Respondent requests to vacate the hearing set for 13 and 14 May.	The Respondent requests the Tribunal vacate the hearing set for 13 and 14 May since the Applicant alleged ‘he could have put more evidence together with two extra days.’ To reflect the Applicant's position, the Respondent requests the Tribunal vacate the hearing set for 13 and 14 May and re-list the matter for 16 and 17 May. The Respondent’s representative confirmed with a Tribunal officer via telephone that the request was made to address issues of procedural fairness that the Applicant may perceive as being denied to him, per the Applicant's email.
10/05/2024	The Tribunal lists an immediate telephone directions hearing	The Tribunal listed a telephone directions hearing to hear the issues raised by the Applicant and the request to re-list the matter by the Respondent.
10/05/2024	The telephone directions hearing takes place	Both parties are able to attend the telephone directions hearing. New Directions are set and published by the Tribunal: The matter is re-listed for 20 and 21 May (the 84th day is 27 May). The Applicant is given until 15 May to submit any further materials or statements on which he seeks to rely.
15/05/2024	The Applicant files further submissions and materials	The Applicant filed with the Tribunal an updated submissions-in-reply and further photographic and documentary materials.