MBBG and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 53
•31 January 2025
MBBG and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 53 (31 January 2025)
Applicant/s: MBBG
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/9341
Tribunal:General Member J Papalia
Place:Perth
Date:31 January 2025
Decision:Pursuant to s 105 of the ART Act, the Tribunal affirms the Reviewable Decision of the Minister’s delegate dated 7 November 2024 not to revoke the mandatory cancellation of the Applicant’s Protection-Related Bridging Visa under s 501CA(4) of the Migration Act.
...............[SGD].........................................................
General Member
CATCHWORDS
MIGRATION – visa cancellation – protection-related bridging visa - Mandatory cancellation under s 501(3A) of Migration Act 1958 – Where Applicant does not pass the character test –– Specially aggravated kidnapping – whether there is another reason to revoke cancellation – consideration of Direction no. 110 – protection of Australian community – whether family violence for the purposes of the Direction – Threshold inquiry – strength, nature and duration of ties to Australia – expectations of the Australian community –legal consequences of decision – extent of impediments if removed – Applicant is a 35 year old citizen of Iraq – protection visa separately refused – Reviewable decision affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), ss 9, 46(1)(d), 54, 56(1)(a), 105
Crimes Act 1900 (NSW), s 86(3)
Crimes (Administration of Sentences) Act 1999 (NSW), ss 52, 53
Crimes (Administration of Sentences) Regulation 2014 (NSW), cl 214
Migration Act 1958 (Cth), ss 5(9), 14, 29, 35A(3A), 36(2)(a), 36(2)(aa), 42(1), 46A, 48A, 49, 50, 52, 82(1), 82(7A), 189, 189(1), 196, 198(6), 473CA, 474, 499(1), 499(2), 499(2A), 500, 501(3A), 501(6)(a), 501(7)(c), 501CA(4), 501CA(4)(a), 501CA(4)(b)(i), 501CA(5), 501E, 501F, 503
Migration Regulations 1994 (Cth), reg 2.52(2)(b), cls 050.511, 050.511(1)(b)(iiia), sch 5
Weapons Prohibition Act 1998 (NSW), s 7(1)
CASES
AJH17 v Minister for Immigration & Anor [2023] FedCFamC2G 192
Bainbridge v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1080
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; (2019) 270 FCR 335
CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1482
Diallo v Minister for Immigration [2009] FMCA 642
Finau v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 8
Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318; (2001) 111 FCR 378
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146
Michael v State of Western Australia [2007] WASCA 100
Minister for Home Affairs v Stowers [2020] FCA 407
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11; (2024) 94 ALJR 594
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398
Moana v Minister for Immigration and Border Protection [2019] FCA 659; (2019) 265 FCR 337
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 97 ALJR 1005
Palmer v Dolman [2005] NSWCA 361
Panegyres v Medical Board of Australia [2020] WASCA 58
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
Re Kevin and Minister for Capital Territory (1979) 37 FLR 1; (1979) 2 ALD 238
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247
R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407
R v Lars (1994) 73 A Crim R 91
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
Smith v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 652
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR
545Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 226 FCR 555
SZSPI v Minister for Immigration and Border Protection [2014] FCAFC 140; (2014) 233 FCR 279
Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146
Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203
VZWF v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1160
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Chief Justice J L B Allsop, ‘Migration Practice Note – Removal from Australia of Immigration Detainees who have Proceedings before the Court’ (Practice Note, 7 March 2022), Federal Court of Australia
Federal Circuit and Family Court of Australia, FCFCOA Annual Report 2023-24 (Report, 26 September 2024)
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024) – cls 2, 4, 5.1(3), 5.1(4), 5.2, 5.2(1), 5.2(2), 5.2(3), 5.2(4), 5.2(5), 5.2(7), 6, 7, 7(2), 8, 8.2, 8.1(1), 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(a)(i), 8.1.1(1)(a)(iii), 8.1.1(1)(b), 8.1.1(1)(b)(iv), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.1(1)(h), 8.1.1(1)(i), 8.2(2)(b), 8.3(1), 8.3(2)(a), 8.3(2)(b), 8.5(1), 8.5(2), 8.5(2)(a)-(f), 8.5(3), 8.5(4), 9, 9.1(1), 9.2(1), 9.3(1)
Statement of Reasons
THE APPLICATION
The Applicant seeks review of the refusal to revoke the mandatory cancellation of his Class WE Subclass 050 Bridging E (temporary) visa (Protection-Related Bridging Visa).[1] For the following reasons, the Tribunal has determined that the correct decision is to affirm the Reviewable Decision.
[1] Exhibit R1, G3, p 14.
BACKGROUND
The Applicant is a 35-year-old Iraqi national.[2] He entered Australia by sea on or about 16 July 2013 (at the age of 23), and after being detained on a vessel intercepted by the Commonwealth near the Territory of Christmas Island.[3]
[2] Exhibit R1, G17, p 143.
[3] Exhibit R1, G17, p 143.
On 20 September 2017, and following ministerial intervention, the Applicant made a valid application for the grant of a Safe Haven Enterprise Visa, which is a temporary protection visa (Protection Visa).[4] Because he made the protection visa application, the Applicant was granted the Protection-Related Bridging Visa on 6 October 2017, ‘to allow [him] to stay in the Australian community outside immigration detention while [his] protection claims are being assessed’.[5]
[4] See Exhibit R1, G20, p 152; Exhibit R4; Migration Act 1958 (Cth) (‘Migration Act’), s 35A(3A).
[5] Exhibit R4, p 1.
It was noted in the bridging visa grant notice that the Visa would ‘remain in effect until the protection visa application is finally determined…including any review undertaken by the [then] Immigration Assessment Authority’ (Authority).[6]
[6] Exhibit R1, p 1, with reference to cl 050.511 of Sch 2 of the Migration Regulations 1994 (Cth) (‘Migration Regulations’).
The Applicant was informed in the notice that:
You are expected to behave in accordance with the standards and laws that apply to the Australian community. Your actions while in Australia can influence decisions on any future [bridging] or other visa grant.
…
The visa you have been granted has the conditions as specified in the table above and outline at the end of this document. It is important that you comply with these conditions. There may be serious consequences if you do not, including cancellation of your [bridging visa], which could mean you may be returned to immigration detention. If you have any questions or concerns about your visa conditions, please contact any of the Department’s offices for further information.
…
Condition 8654 – Criminal Conduct
It is an expectation of the Australian government and community that people follow Australia’s laws and behave responsibly. If you engage in any criminal behaviour or if you are charged with a criminal offence, your [bridging visa] could be cancelled and you may be returned to immigration detention.
Between 13 and 14 September 2020, the Applicant and four co-offenders committed a ‘specially aggravated kidnapping’ in Western Sydney,[7] contrary to s 86(3) of the Crimes Act 1900 (NSW) (‘Crimes Act’). The facts of this conduct will be discussed further below. It suffices to note that, in March 2022, the Applicant was sentenced to 6 years 6 months’ imprisonment for this offending by the Parramatta District Court.[8]
[7] Exhibit R2, TB3, p 578.
[8] Exhibit R2, TB3, p 578; Exhibit R1, G4, p 36.
This sentence of imprisonment gave rise to the mandatory cancellation of the Applicant’s Protection-Related Bridging Visa by a delegate of the Respondent (Minister) on 14 June 2022 under s 501(3A) of the Migration Act (the Cancellation Decision).[9]
[9] See Exhibit R1, G18, pp 144-51.
The Applicant was notified of the Cancellation Decision by hand on 17 June 2022[10] and invited to make representations to the Minister requesting revocation of this decision.[11] He requested revocation on 20 June 2022, within the prescribed time under reg 2.52(2)(b) of the Migration Regulations 1994,[12] and submitted a personal circumstances form and evidence in support.[13]
[10] Exhibit R2, TB2, p 478.
[11] See Exhibit R1, G18, pp 145-48.
[12] Exhibit R1, G9, pp 89-93.
[13] Exhibit R1, G10, pp 94-114.
Separately, and before consideration was given to revocation of the Cancellation Decision, on 27 October 2022, another delegate refused to grant the Applicant the Protection Visa because they were not satisfied that the Applicant was a person in respect of whom Australia has protection obligations under ss 36(2)(a) or 36(2)(aa) of the Migration Act.[14]
[14] Exhibit R1, G20, pp 152-62.
In accordance with then s 473CA of the Migration Act, the Protection Visa refusal decision was referred to the Authority by the Minister for merits review. The Authority affirmed the protection visa refusal decision on 8 February 2023.[15] The determination of the substantive protection visa application has several consequences, including whether the Applicant could, in fact, obtain his release from immigration detention by virtue of this proceeding (discussed further below in the context of legal consequences).
[15] Exhibit R1, G21, p 163.
On 7 November 2024, the Minister’s delegate refused to revoke the cancellation of the Protection-Related Bridging Visa under s 501CA(4) of the Migration Act (the Reviewable Decision).[16]
[16] Exhibit R1, G3, p 17.
The Applicant was notified of the Reviewable Decision the following day, by email to his then authorised representative.[17] He sought review of that decision before the Administrative Review Tribunal (Tribunal) by application dated 14 November 2024.[18]
[17] Exhibit R1, G3, pp 14-5; G23, pp 214-7.
[18] Exhibit R1, G2, pp 4-13.
LEGAL FRAMEWORK
The question for determination by the Tribunal is whether the Reviewable Decision not to revoke the mandatory cancellation of the Applicant’s Protection-Related Bridging Visa is the correct or preferable decision on the material before the Tribunal.[19]
[19] Administrative Review Tribunal Act 2024 (Cth) (‘ART Act’) ss 9, 54, 56(1)(a); See also Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286, [140]-[143].
Section 501CA(4) of the Migration Act provides that a mandatory cancellation may be revoked if:
(a)the Applicant makes representations in accordance with the invitation to do so given by the Minister under s 501CA(3); and
(b)the decision-maker is satisfied that:
(i)the Applicant passes the character test (as defined by s 501); or
(ii)there is another reason why the mandatory cancellation should be revoked.
In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 (‘M1/2021’), the majority of the High Court described s 501CA(4) as conferring ‘a wide discretionary power’ to revoke a mandatory cancellation, if the decision-maker (whether the Minister, their delegate or the Tribunal on review of a delegate’s decision) is satisfied that there is ‘another reason’ why the cancellation should be revoked.[20] The majority held in the same paragraph that the assessment of whether there was, in fact, ‘another reason’ was to be undertaken by reference to the representations made by the Applicant.[21]
[20] M1/2021, [22].
[21] M1/2021, [22]. See also Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398, [13]-[15]; Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11; (2024) 94 ALJR 594, [6].
In exercising the power under s 501CA(4) of the Migration Act, the Tribunal must comply with Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction)[22] given by the Minister under s 499(1) of the Migration Act.[23] The Direction commenced on 21 June 2024.[24]
[22] Direction cl 1.
[23] Direction cl 5.1(4); Migration Act s 499(2A).
[24] Direction cl 2.
Informed by the principles set out in cl 5.2 of the Direction, the Tribunal must take into account the factors identified in cls 8 and 9 of the Direction (to the extent relevant in the particular case) in deciding the application.[25]
[25] Direction cl 6.
THE HEARING AND THE EVIDENCE
The Applicant appeared in-person before the Tribunal over three days on 13, 14 and 16 January 2025. The Applicant was self-represented and assisted by an Arabic-Lebanese interpreter for the duration of the proceedings. The Minister was represented by Ms Jones-Bolla of Sparke Helmore Lawyers.
The following documents were marked as exhibits:
(a)Bundle of IHMS Clinical Records for the Applicant between 1 September 2024 and 19 November 2024, comprising 84 pages (Exhibit A1);
(b)Preliminary Report for a computed tomography (CT) scan of the Applicant’s brain and facial bones dated 6 October 2024 (Exhibit A2);
(c)Emergency Discharge Referral from the Liverpool Health Service dated 6 October 2024 (Exhibit A3);
(d)Reference Letter from Mr DCDN dated 7 January 2024 (Exhibit A4);
(e)Reference Letter from Ms AF dated 8 January 2024 (Exhibit A5);
(f)Bundle of relevant documents in the delegate’s possession or under the delegate’s control (G-Documents), comprising 217 pages (Exhibit R1);
(g)Respondent’s Tender Bundle, comprising 656 pages (Exhibit R2);
(h)Respondent’s Supplementary Tender Bundle, comprising 36 pages (Exhibit R3);
(i)Notice of bridging visa grant dated 6 October 2017 (Exhibit R4);
(j)Department of Foreign Affairs and Trade Country Information Report for Iraq dated 16 January 2023 (DFAT Report) (Exhibit R5);
(k)Respondent’s Further Supplementary Tender Bundle, comprising 28 pages (Exhibit R6);
(l)Detention notice dated 2 August 2013 (Exhibit R7)
The Respondent filed a revised Statement of Facts, Issues and Contentions (RSFIC) on 6 January 2024. The Applicant did not file one.
At the hearing, the Applicant was advised, in simple terms, of his right to invoke the privilege against self-incrimination prior to his giving evidence.[26] He was also provided an opportunity to respond to matters put to him and to provide answers to questions asked by the Tribunal which were directed at relevant considerations under the Direction.
CONSIDERATION
[26] See Bainbridge v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1080, [64]-[65].
Representations in accordance with invitation
As discussed at [8] above, the Applicant made representations seeking revocation of the Cancellation Decision on 20 June 2022.[27]
[27] Exhibit R1, G3, p 19, [3]; G9, pp 89-108. See also Migration Regulations, reg 2.52(2)(b).
Accordingly, the Tribunal is satisfied that the Applicant made representations in accordance with the invitation for the purposes of s 501CA(4)(a) of the Migration Act.
Character test
The Tribunal must decide whether the Applicant passes the character test as defined by
s 501 of the Migration Act.[28] Failure to pass the character test arises as a matter of law.[29][28] See Smith v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 652, [40]. See also Direction, cl 5.1(3) and Annexure A.
[29] See Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666, [63].
Section 501(6)(a) of the Migration Act sets out that ‘a person does not pass the character test if…the person has a substantial criminal record (as defined by subsection (7))’ (emphasis in original). This, in turn, includes when ‘the person has been sentenced to a term of imprisonment of 12 months or more’.[30]
[30] Migration Act s 501(7)(c).
The Applicant was sentenced to 6 years and 6 months’ imprisonment on 11 March 2022.[31]
[31] Exhibit R1, G4, p 36.
Accordingly, the Tribunal is not satisfied that the Applicant passes the character test for the purposes of s 501CA(4)(b)(i) of the Migration Act.
Is there ‘another reason’?
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the representations made by the Applicant, and any relevant primary and other considerations contained within the Direction, there is ‘another reason’ why the Cancellation Decision should be revoked.
Further guidance as to how the Tribunal is to apply the considerations in the Direction can be found in cl 7, which provides that:
1In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
2The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
3One or more primary considerations may outweigh other primary considerations.
PRIMARY CONSIDERATIONS
Protection of the Australian Community
The Tribunal is required to consider the protection of the Australian community from criminal or other serious conduct. The Tribunal is directed by cl 8.1(1) of the Direction to ‘keep in mind that the safety of the Australian community is the highest priority of the Australian Government’ and that the Tribunal should have:
particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Nature and seriousness of the conduct
The Tribunal must consider the nature and seriousness of the Applicant’s criminal offending and other conduct to date.[32] In doing so, cl 8.1.1(1)(a) of the Direction provides that the Tribunal must have regard to specific types of crimes or conduct which are ‘viewed very seriously’ by the Australian Government and the Australian community. The Direction also provides that certain other crimes or conduct are considered to be ‘serious’.[33] The Tribunal notes that while the Direction expressly provides categories of conduct that is to be considered ‘very serious’ or ‘serious’,[34] it does not limit the range of conduct that may be so regarded, and the Tribunal must also consider the other factors identified in cls 8.1.1(1)(c)-(i) in determining the seriousness of the applicant’s conduct more broadly.
Unauthorised maritime arrival
[32] Direction, cl 8.1.1(1).
[33] Direction, cl 8.1.1(1)(b).
[34] See Minister for Home Affairs v Stowers [2020] FCA 407, [45].
As noted above, the Applicant came to Australia as an adult in July 2013.[35] He did so without permission but in circumstances where he claimed to be at risk of persecution in his home country of Iraq. The Tribunal does not draw an adverse inference from the Applicant embarking on what was no doubt a perilous journey to Australia by boat.[36] Nor does the Tribunal draw an adverse inference from the subsequent rejection of those protection claims.
[35] Exhibit R1, G17, p 143.
[36] Cf Migration Act, s 42(1); CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514, [180].
Because the Applicant did not have permission to travel to, enter and remain in Australia, he was required to be detained under ss 189 and 196 of the Migration Act until he was either removed from Australia or granted such permission.[37]
[37] See Migration Act ss 14, 29, 196.
On 5 September 2013, and pursuant to ministerial intervention, the Applicant was granted both a Humanitarian Stay (temporary) Visa and a Bridging Visa E, enabling him to live in the Australian community on a temporary basis. He was subsequently granted further bridging visas until the Protection-Related Bridging Visa grant in October 2017. The Applicant testified that he remembered receiving the visa grant notices, but that he did not comprehend their contents (including the warnings about criminal conduct).
Traffic offences
The Applicant was granted a Learner Driver Licence in Queensland on 2 December 2014.[38] He subsequently moved to New South Wales and obtained an equivalent licence there in December 2015.[39]
[38] Exhibit R2, TB4, p 590.
[39] Exhibit R2, TB4, p 583, 585.
The Applicant committed the following traffic offences:[40]
[40] Exhibit R2, TB4, p 582.
Date
Offence
Fine
20 November 2016
Unaccompanied by licensed driver
$830
20 November 2016
Not display L sign(s)
$253
1 December 2016
Negligent driving
$433
1 December 2016
Unaccompanied by licensed driver
$830
Police suspension of Learner from 1 December 2016 until 28 February 2017
23 March 2017
Unaccompanied by licensed driver
$830
23 March 2017
Not display L sign(s)
$253
Police suspension of Learner from 23 March 2017 until 22 June 2017;
Demerit points suspension from 1 August 2017 until 31 October 2017;
Licence expired 1 December 2017.
Weapons offence
On 8 September 2018, New South Wales Police (NSWPOL) were called to attend the Applicant’s address in Fairfield West after a report of a person carrying a weapon.[41] Their enquiries revealed that the Applicant had walked down the street with a silver expandable baton in his right hand.[42] The baton was seized and the Applicant charged with ‘possess or use of a prohibited weapon without permit-T2’,[43] contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW).[44] The Applicant was convicted of that offence in the Fairfield Local Court on 8 October 2018 and fined $500.[45]
Specially aggravated kidnapping
[41] Exhibit R3, STB2, p 35.
[42] Ibid.
[43] Exhibit R3, STB2, p 34.
[44] Ibid.
[45] Exhibit R2, TB3, p 577.
Between 13 and 14 September 2020, the Applicant participated in, and instigated, a joint criminal enterprise with four other offenders to detain another man, Mr Y (who had been a former friend), with the intention of gaining a financial advantage to the Applicant from Mr Y,[46] because he had previously broken into the house of, and stolen drugs from, the Applicant.[47] Mr Y was assaulted multiple times during the period of detention,[48] and suffered a fractured nose, a fractured eye socket, swelling, lacerations, grazes, and was bleeding from the mouth and nose.[49] The detention ended by reason of the victim’s escape.[50]
[46] Exhibit R1, G5, pp 37-8.
[47] Exhibit R1, G5, p 39.
[48] Exhibit R1, G5, pp 40-5.
[49] Exhibit R1, G5, p 46.
[50] Exhibit R1, G5, p 75.
The facts of this offending are comprehensively recorded in the sentencing remarks of Craigie SC DCJ in the Parramatta District Court, and the Agreed Statement of Facts, signed by the Applicant, which are before the Tribunal.[51] His Honour relevantly found:[52]
In relation to the offenders, commencing with [MBBG]. I find him to have a level of responsibility as the essential initiator of the call that brought the victim within the reach of the criminal enterprise. I find that his motivation was one driven by a thirst for retribution. I have not been persuaded that he has any real insight or remorse beyond regret for the situation in which he has placed himself, and to which also others …will be subjected by reason of his absence. His conduct was an episode of callous, prolonged and disgraceful thuggery. It resulted in imposition of terror and real harm, at least to the level of actual bodily harm to the victim. The offender may well have been driven by a degree of rage which his personality and conditions heightened. He was also deliberative in his actions. That, apart from taking account of inferred preparation in having both individuals and weapons at hand, I am not sufficiently persuaded that he conceived of either the level of violence or of the kidnapping of the victim until his evident rage ignited at the sight of the victim.
I am, however, satisfied that his culpability is at a higher level. I give weight to a background of profound disadvantage in his case, and I find it more probable than not that this contributed to his all too ready resort to violence when frustrated in his requirements. Any impact of his disadvantaged background has only slight reduction in his moral culpability in an offence, that whilst driven by rage, also was accompanied by a self of criminal entitlement.
[51] Exhibit R1, G5, pp 37-81; Exhibit R2, TB1, pp 1-9.
[52] Exhibit R1, G5, pp 77-8.
The maximum penalty for specially aggravated kidnapping is 25 years’ imprisonment.[53]
[53] See Exhibit R1, G5, p 38.
On 11 March 2022, the Applicant was sentenced to six years six months’ imprisonment, commencing 15 September 2020, with a four-year non-parole period and predicated upon a 25% discount for the utilitarian value of the plea of guilty.[54]
[54] Exhibit R1, G5, p 78; Exhibit R2, TB1, p 17.
When the Applicant was arrested on 15 September 2020, he was in possession of ‘a small resealable plastic bag containing a white crystal substance’.[55] He was charged with, and convicted of, ‘possess prohibited drug’ and received no further punishment for this in the Parramatta Local Court on 10 June 2021.[56]
Correctional centre offence(s)
[55] Exhibit R1, TB1, p 13.
[56] Exhibit R2, TB3, p 577.
The Applicant was in the custody of New South Wales between 16 September 2020 and 14 September 2024,[57] when he was released on a parole order expiring 14 March 2027.[58] During that period, the Applicant was charged with, and found to be guilty of, 17 correctional centre offences under ss 52 and 53 of the Crimes (Administration of Sentences) Act 1999 (NSW), as follows:[59]
[57] Exhibit R2, TB2, p 18.
[58] Exhibit R2, TB2, p 455.
[59] Exhibit R1, G8, pp 86-7; Exhibit R2, TB2, pp 457-8.
Offence Date
Offence
Outcome
19 September 2020
Fail keep clean cell (reg 58)
Reprimand and caution
Damage destroy property (reg 142)
$241 compensation
Disobey direction (reg 130)
Reprimand and caution
23 March 2021
Fight or other physical combat (reg 141)
14 days off buy-ups
On 17 June 2022, the Applicant was notified of the Cancellation Decision.[60]
22 June 2022
Intimidation (reg 138)
7 days off buy-ups
On 10 November 2022, the Applicant sent a letter to the Department of Home Affairs, where he indicated, amongst other things, that ‘I believe that I have changed since I have come to Wellington Gaol. I have been incarcerated since 15th September, 2020. I have no offences in custody; I am compliance with correctional centre routine’.[61]”
2 May 2023
Enter other cells (reg 40)
7 days confined to cells
26 May 2023
Fight or other physical combat (reg 141)
3 days confined to cells
3 January 2024
Interfere correctional centre property (reg 145)
Reprimand and caution
6 February 2024
Fail comply correctional centre routine (reg 39)
Reprimand and caution
Fail comply correctional centre routine (reg 39)
Reprimand and caution
9 February 2024
Assault (reg 141)
3 days confined to cells
13 August 2024
Possess drug (reg 149)
5 days confined to cells
Possess drug (reg 149)
5 days confined to cells
14 days off buy-ups
Possess tobacco e-cig/e-cig acc w/i cc (reg 322)
14 days off buy-ups
16 August 2024
Possess drug (reg 149)
3 days confined to cells
Smoke/use tobacco e-cig/e-cig when in cc (reg 322)
3 days confined to cells
7 September 2024
Possess drug (reg 149)
7 days off buy-ups
Possess tobacco e-cig/e-cig acc w/i cc (reg 322)
7 days off buy-ups
[60] See Exhibit R2, TB2, p 478. See also Exhibit R1, G18, p 144.
[61] Exhibit R1, G13, pp 115.
The Applicant was cross-examined on those correctional centre offences by the Minister on 13 January 2025. Relevantly and in reverse chronological order:
(a)In respect of the 2024 possession of buprenorphine charges, the Applicant testified that he had admitted his guilt for those disciplinary offences because he had been holding the drugs ‘for the boys’ and that he did not have a choice but to ‘own it’ in the prison environment else he would be considered a ‘snitch’. He said that the drug charges were related (despite the drugs being discovered on separate days), and that he had been asked to hold the drugs for another prisoner. He admitted that he was addicted to cigarettes so far as the smoking and possession of tobacco offences were concerned.
(b)The 9 February 2024 ‘assault’ charge occurred in circumstances where the Applicant attacked another prisoner, Mr MT, in front of four prison officers.[62] He said this was because that prisoner had stabbed him the day before, ‘for standing over’, and he wanted to be moved because he was concerned that he would be attacked by Mr MT and another prisoner again.
[62] See Exhibit R2, TB2, pp 356-72.
(c)The 6 February 2024 fail to comply correct routine charge appeared to relate to the Applicant not attending work.[63] When he was taken to the record, the Applicant confirmed that it related to his refusal to do the ground maintenance job because he wanted to do another one, which paid better.
[63] See Exhibit R2, TB2, pp 376-80.
(d)
In respect of the 3 January 2024 interfere with correctional centre property offence, the Applicant testified that he had been working in the laundry at this time and
‘the boys’ had been stealing stuff from other prisoners, and that he collected the stolen socks/shoes from them because he was the leading hand in the laundry. He said that he was held responsible when the guards reviewed the CCTV footage from the laundry and saw him returning the property to the laundry bags.
(e)The Applicant said that he could not remember the fight that occurred on 26 May 2023.[64] However, he accepted that the prison records about this were accurate when he was taken to them. This appeared to relate to the Applicant and another prisoner, Mr MA, fighting one another in a cell.
(f)In relation to the 2 May 2023 ‘enter other cells’ charge,[65] the Applicant testified that this related to him stopping a fight between two other prisoners and then rendering aid to one of them after they were assaulted.
(g)The 22 June 2022 ‘intimidation’ charge related to the Applicant attempting to intimidate a prison officer to obtain a one-person cell rather than be placed in a two-person one.[66] He testified at hearing that it was not just him telling the officer that he was ‘a maggot dog cunt’,[67] and that his ‘celly’ was the one that told the guard to ‘get me a fuckin TV and kettle ya cock sucker’[68] once they were both within the cell. He described it as ‘bad luck that he was the only one caught for it’.
(h)In relation to the 23 March 2021 fight, the Applicant said this was a fight based on a misunderstanding over his English comprehension.
(i)The Applicant testified that the first charges in September 2020[69] were because he could not understand English very well. He said that he cut up the mattress in his cell to make himself a pillow; that he received a separate charge for disobeying an officer because he did not understand the direction, and that the cell was dirty when he arrived a few days prior.
(j)The Applicant described his disciplinary history as collectively ‘not a big deal’ compared with more serious offences that occur in prison, such as stabbing or grievous bodily harm, and said that he wanted to look good in his letter to the delegate in November 2022, which is why he denied having disciplinary infractions in that letter. This letter was prepared on his instruction and with the assistance of the HIPU service and program officers in prison.
Return to immigration detention
[64] See Exhibit R2, TB2, pp 381-86.
[65] See Exhibit R2, TB2, pp 388-94.
[66] See Exhibit R2, TB2, pp 397-406.
[67] Exhibit R2, TB2, p 399.
[68] Exhibit R2, TB2, p 399.
[69] See Exhibit R2, TB2, pp 432-40.
The Applicant was taken into immigration detention at Villawood Immigration Detention Centre on 14 September 2024.[70]
[70] Exhibit R2, TB5, p 600.
In the evening of 5 October 2024, the Applicant was involved in a physical confrontation with another detainee.[71] The other detainee overpowered the Applicant, who suffered head injuries and was taken to hospital.[72] He was self-discharged the following day.[73]
[71] See Exhibit R2, TB5, p 610.
[72] Ibid; see also Exhibit A1, p 59.
[73] Exhibit A1, p 58.
The Applicant testified at hearing that he has no memory of this part of his life, and that he does not remember the incident. He said that he ended up with a broken nose, broken cartilage of his ear, and a concussion. Medical records from the Liverpool Health Service indicate that the Applicant had swelling to the right parietal region, a fractured jaw and superficial lacerations.[74]
[74] See Exhibit A2; Exhibit A3.
The Applicant was returned to Hospital on 8 October 2024 after being found unresponsive in his bedroom.[75] He was found to have a concussion and was discharged on 9 October 2024.[76]
[75] Exhibit R2, TB5, p 618; Exhibit A1, p 50.
[76] Exhibit A1, p 48.
The Applicant fell down some stairs at Villawood on 12 October 2024 and was returned to hospital.[77] He underwent further testing,[78] and was found to have a displaced fracture on his nose (all other testing demonstrated no abnormalities detected).[79] He was returned to Villawood on 17 October 2024.
[77] See Exhibit R2, TB5, p 624; A1, p 45.
[78] See Exhibit A1, pp 38-44.
[79] Exhibit A1, p 37.
The Applicant was cross-examined about an incident report dated 15 October 2024 where Serco officers report their unplanned use of force at the hospital to restrain him because they thought he was reaching for a spoon to use against Serco staff or himself given that he was making threats.[80] He testified at hearing that he could not remember what happened at the Hospital and that if he had done anything wrong during this period he was sorry about it, particularly because the Serco guards were trying to help and look after him.
[80] See Exhibit R2, TB5, pp 628, 631.
The Applicant was also cross-examined on an incident report from 30 October 2024, where it was recorded that a ‘makeshift weapon’ was found on his person during processing for a transfer operation.[81] The Applicant testified that he was surprised to read this allegation in the material and that he could not speak to it because he had no knowledge of it.[82] The Minister subsequently provided the Tribunal and the Applicant with the annexed photograph of the reported makeshift weapon.[83] After reviewing that photograph, the Applicant maintained his original position that he did not recognise the object, could not speak to it, and referred to his disoriented state at the time.
[81] See Exhibit R2, TB5, p 655.
[82] Evidence on 15 January 2025.
[83] Exhibit R6, STB5, p 62.
The Tribunal finds that the Applicant has a disciplinary history in prison and immigration detention which speaks to ongoing criminogenic risk factors related to anger management and consequential thinking.
Overall finding – nature and seriousness of conduct to date
The Applicant’s conduct to date includes violent crimes, namely the specially aggravated kidnapping. This was objectively serious conduct including prolonged deprivation of liberty, physical violence, and threats made. It is conduct that is regarded to be ‘very serious’ by the Australian Government and the Australian community.[84]
[84] Direction, cl 8.1.1(1)(a)(i).
The Applicant committed traffic offences in 2016-2017, including one count of negligent driving. In the absence of information about the circumstances of the negligent driving, the Tribunal does not make any further comment about the objective seriousness of the Applicant’s traffic record other than it included repeated non-compliance with the learner’s permit conditions including after a period of suspension.
The Tribunal has already referred to the respective sentence(s) or penalties imposed for the Applicant’s offending to date.[85]
[85] Direction, cl 8.1.1(1)(c).
The Tribunal notes that Mr Y suffered actual bodily harm of a serious kind less than permanent or serious disfigurement when he was detained and assaulted by the Applicant and his co-offenders.[86] He was clearly harmed by this offending, as remarked upon by Craigie DCJ in the extract of the sentencing remarks quoted above.
[86] Direction, cl 8.1.1(1)(d); See Exhibit R1, G5, p 46.
The Applicant’s disciplinary history whilst in both State custody and in immigration detention is concerning. It included further acts of violence after he was notified of the Cancellation Decision on 17 June 2022.[87] It cannot be said that he was not aware by then of the precarious nature of his migration status, and that this further conduct of concern supports a finding that he poses an ongoing risk of re-offending (for the reasons set out below).
[87] See Direction, cls 8.1.1(1)(e), (f), (h)
The Minister contended, and the Applicant accepted, that his overall conduct, particularly the specially aggravated kidnapping, was very serious.[88]
[88] Closing submissions at hearing on 16 January 2025.
Overall, the Tribunal finds that the nature and seriousness of the Applicant’s conduct to date is ‘very serious’ and that he has caused harm to individuals and to the Australian community more broadly.
Risk to the Australian community should the Applicant engage in further conduct
The Tribunal is required to have regard to the risk that may be posed by the Applicant to the Australian community by considering, cumulatively, the nature of the harm to individuals or to the community should the Applicant engage in further criminal or other serious conduct, and the likelihood of the Applicant engaging in such conduct.[89] There is no statutory constraint on the way that risk is assessed by the Tribunal other than that there must be a rational and probative basis for the assessment.[90]
Nature of harm
[89] Direction, cls 8.1.2(2)(a)-(b).
[90] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68]; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41].
The Applicant’s forensic history unquestionably suggests risk for acts of violence. The risk of harm associated with violent offending is clear from the injury caused to Mr Y in 2020 and his own injuries sustained more recently in October 2024. Any further acts of physical violence have similar potential for significant harm and the Tribunal notes that head injuries can often lead to very serious outcomes, including death or permanent injury. This is particularly the case where both incidents described above included reported “head stomping” of the victim.
Likelihood of re-offending
At hearing, the Applicant said he sought a second chance from the Tribunal. He said that he hated what he had done and that when he thinks back on it all now that he is clean from illicit drugs; he cannot believe what he did; he regrets that conduct; considers himself to be a changed man; and wanted to prove his change to the community in a different state. He noted that he had now acquired a trade as a barber in prison, which he wanted to progress with. Further to this, the Applicant also said he wanted to be in the community to follow up on his health conditions with health practitioners of his choosing and at his own pace.
The Minister submitted that the Tribunal should find that the Applicant poses ‘a risk’, which it should find is unacceptable.[91] Relevantly, the Minister observed, by reference to Justice Jackson’s recent summary of the principles in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1482 (CRNL FC No 2) at [71]-[74], that it was not necessary for the Tribunal to ascribe any particular characterisation to the quality of risk or to quantify it.[92] It was accepted by the Minister that there was not any formal risk assessments before the Tribunal which would assist it in determining the likelihood of re-offending.
[91] Closing Submissions on 16 January 2025.
[92] Submissions on 16 January 2025.
Judge Craigie’s sentencing remarks indicate that his Honour had a pre-sentence psychological report (PSR) dated 21 September 2021 in respect of the Applicant.[93] The PSR was prepared by a Ms Christian and set out a general and significant history of past deprivation in Iraq which was corroborated by a letter before his Honour from the Applicant’s mother.[94] It contained other information, including about the Applicant’s past relationships and his protection claims, which the Tribunal does not consider requires resolution in this proceeding. Ms Christian’s opinion is summarised by his Honour as follows:[95]
A number of recognised psychological testing tools were applied to the offender by Ms Christian. The resultant scores were indicative of the offender having experienced extremely severe symptoms of anxiety; severe symptoms of depression; and moderate symptoms of stress within the week preceding the assessment. Applying the level of service inventory, there was an assessment of the offender’s criminogenic needs requiring attention, and an otherwise non-specified level of risk. The offender’s rehabilitation related needs were described as “moderate”. They included addressing “association with anti-social peers; substance addiction; attitude towards crime; financial and accommodation instability; and mental health symptoms”. A number of recommendations of a general kind emphasise the need to address these areas of risk. The report emphasised efforts in the community as being more likely to address the offender’s criminogenic needs.
…
Overall, Ms Christian assessed the offender as having a mental state at the time of offending, which on his self-report met the criteria of “post-traumatic stress disorder with associated depressive and anxious symptomology, and substance use disorder at the time of assessment”.
[93] See Exhibit R1, G5, p 52-8.
[94] See Exhibit R1, G5, p 53.
[95] Exhibit R1, G5, pp 56-7.
Judge Craigie rejected Ms Christian’s assessment that the Applicant had any remorse or insight in relation to the offending and agreed with the State’s submission that Ms Christian had not dealt with the Applicant’s consequential thinking/ability to control his impulses.[96] His Honour noted that it was ‘concerning’ that the Applicant had, in March 2022, ‘four instances of institutional misconduct whilst in custody, including fighting or physical combat’.[97]
[96] Exhibit R1, G5, pp 57-8.
[97] Exhibit R1, G5, p 58.
There were aspects of the Applicant’s evidence to the Tribunal, to the effect that he maintained the position articulated in his electronic record of interview (EROI) with NSWPOL about what happened on the day in question and the precursors for it, and that he only admitted his guilt and the surrounding facts in order to avoid a longer prison sentence,[98] which gave rise to some concern about the Applicant’s remorse and insight. However, the Tribunal nevertheless accepts that the Applicant regrets his involvement in the kidnapping and understands that this was wrong.
[98] See Exhibit R1, G5, pp 48-9.
The Applicant engaged in a series of vocational programmes in prison, including first aid, hairdressing and positive-lifestyle courses in 2020 to 2021.[99] During this period, he also completed The Prisoner’s Journey programme with Prison Fellowship International, commenced Narcotics Anonymous (NA), and periods of prison employment between 2021 and 2024.[100] The NA programme was interrupted by the Applicant’s change of custodial placement.[101] He was regrettably subsequently determined to be ineligible to complete any criminogenic programmes in prison.[102]
[99] See Exhibit R1, G5, p 56; G8, p 87; G12, pp 110-4; G15, pp 127-31, 133, 135-41; Exhibit R2, TB2, pp 514-45.
[100] See Exhibit R1, G5, p 56; G8; G12, p 112.
[101] Exhibit R1, G5, p 56.
[102] Exhibit R1, G8; Exhibit R2, TB2, p 445.
The Applicant was granted parole by the State Parole Authority (NSW) (SPA) on or about 1 August 2024, to commence 14 September 2024.[103] His parole order expires on 14 March 2027[104] and the SPA imposed the standard eleven conditions in cl 214 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) and additional conditions relating to prohibitions on using illicit substances, gambling, contacting or communicating with Mr Y or his co-offenders, and that he report to Corrective Services within 7 days of any release from immigration detention.[105]
[103] See Exhibit R2, TB2, pp 454-5, 513.
[104] Exhibit R2, TB2, p 455.
[105] Exhibit R2, TB2, p 455.
The Applicant was asked why he was granted parole given that he did not complete any criminogenic programmes and in circumstances where he has a relatively significant prison charge history. He testified that he was initially referred to complete an aggression and addiction programme in prison but he was not accepted. He said that he convinced his most recent Community Corrections Officer, Ms Hinds, that he was able to control his aggression and substance use, which was why he was granted parole.
There is a series of case notes available from the discussions between the Applicant and Ms Hinds in 2024. These include:
(a)a discussion about the prison assault charge from February 2024, where Ms Hinds recounts that the Applicant ‘saw an opportunity to attack and he took it’ despite understanding that this conduct might impact his chances at parole;[106]
(b)a note from 26 March 2024:[107]
Spoke about violent behaviour whilst in custody, although [MBBG] claims he is able to control his aggression he stated he was brought up by standing up for yourself and fighting if need be and it would appear that violence can be considered accepted in some circumstances;
(c)an observation on 3 May 2024 that the Applicant ‘appears to have some level of acceptance towards violence in order to resolve conflict’;[108]
(d)and a critical note from 20 May 2024 that:[109]
Although [MBBG] attempted to justify his behaviours, he did recognise that the level of violence used upon the victim was extreme. He is of the belief that if the victim did not steal from him or was able to return the money it would not have escalated in the way it did.
…
Despite the trajectory of his ongoing anti-social behaviours, [MBBG] was advised that there appears to be no benefit for him [in remaining] in custody as there is no program pathway to address his criminogenic risks and this could be addressed if given the opportunity to stay in Australia.
[106] Exhibit R2, TB2, p 446.
[107] Exhibit R2, TB2, p 447.
[108] Exhibit R2, TB2, p 449.
[109] Exhibit R2, TB2, p 450.
The Tribunal considers that these case notes are likely to be more reliable than the Applicant’s evidence about why he was granted parole.
The Applicant was released on parole and taken into immigration detention on 14 September 2024.[110] He engaged in re-integration sessions with Corrective Services in July 2024, which, amongst other things, focused on family and relationships.[111]
[110] Exhibit R2, TB2, p 513.
[111] Exhibit R1, G15, p 141.
There was no urinalysis conducted for the Applicant in prison.[112] The Applicant refused to engage with the drug and alcohol programme available in immigration detention.[113] His evidence to the Tribunal was that he has been clean since 2020 and was only holding the buprenorphine for other prisoners. However, the Tribunal does note that he requested a Mental Health referral, and is open to trauma and torture counselling.[114] The Applicant attended a consultation with an IHMS psychologist on 24 October 2024.[115] The psychologist considered that the Applicant had his Post Traumatic Stress Disorder (PTSD) symptoms re-triggered by the assault on 5 October 2024.[116] He was referred to a mental health nurse for primary care and attended several sessions with that nurse in November 2024.[117] The Applicant did not attend his scheduled review with an IHMS psychiatrist on 29 November 2024, but it was noted that this could be re-scheduled if the Applicant were willing to attend.[118]
[112] Exhibit R1, G8, p 87.
[113] See Exhibit A1, p 61.
[114] See Exhibit A1, p 22.
[115] Exhibit A1, p 22.
[116] Exhibit A1, p 22.
[117] See Exhibit R6, STB3, pp 37-8.
[118] Exhibit R6, STB3, p 45.
Having regard to the limited material before the Tribunal summarised above, the Tribunal accepts that the Applicant has unmet criminogenic treatment needs relating primarily to aggression, substance abuse, PTSD, and consequential thinking. It finds that those unmet treatment needs give rise to a likelihood of the Applicant engaging in further criminal or other serious conduct which may include acts of violence. However, the Tribunal does not consider that it is in a proper position to ascribe any characterisation to the quality of the risk or to quantify it (despite this being preferable).
Conclusion on the protection of the Australian community
Clause 8.1.2(1) of the Direction provides that the Tribunal should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases, and that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
The Tribunal considers that the specially aggravated kidnapping in this case would cross that threshold where any risk of repetition would be ‘unacceptable’.[119] The nature and seriousness of the Applicant’s conduct to date is very serious. He poses a risk of re-offending that the Tribunal considers to be concerning but is not able to quantify.
[119] Direction, 8.1.2(2).
The Minister submitted that if the Tribunal reached those conclusions, it should find that this primary consideration would weigh very heavily against revocation.[120]
[120] Closing submissions on 16 January 2025.
For reasons articulated below in the context of legal consequences of the decision, the Tribunal notes that the Australian community would not, in fact, be put at risk by a decision in this matter because the bridging visa would have ceased in any event if it had not been cancelled. The Tribunal also notes that the Applicant is subject to supervision by New South Wales until March 2027.
The Tribunal finds this primary consideration to weigh moderately against revocation.
Family violence committed by the Applicant
Whether family violence for the purposes of the Direction?
In Re Lynch and Minister for Immigration, Citizenship and Multicultural Affairs (Administrative Review Tribunal, 2024/5629, 24 October 2024) (unpublished), this Tribunal (sitting with Deputy President Burford) explained its understanding of when this primary consideration arises as a relevant consideration, as follows, and with footnotes removed:
115This primary consideration is only relevant where an applicant has been convicted of an offence that ‘involve[s] family violence’ or there is credible information or evidence before the Tribunal that they have been ‘involved in the perpetration of family violence’.
116The first note to cl 4 of the Direction indicates that a number of terms used within the Direction are defined in section 5 of the Migration Act. The term “family violence” is defined in cl 4 (1) of Direction no. 110 (and in contrast with Div 1.5 of the Migration Regulations) as meaning ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful’. The definition gives examples of such behaviour, including an assault.
117The same definitional clause of Direction no. 110 also provides that, for the purposes of considering whether family violence has been committed under the Direction, ‘member of the person’s family … includes a person who has, or has had, an intimate personal relationship with the relevant person’. This definition is inclusive. It also contrasts with the visa concept of a ‘member of the family unit’ or ‘member of the same family unit’, which are defined terms under the Migration Act and Regulations.
118The Tribunal is required to make an assessment of whether the persons identified as victims of the relevant conduct or offending are ‘family members’. Other than with respect to the explicit inclusion of persons with whom an applicant has, or has had, an intimate personal relationship, Direction no. 110 does not contain a definition of ‘member of the person’s family’. The Courts have indicated this term is not to be narrowly construed. The Full Court of the Federal Court of Australia at [124] of their judgment in Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115; (2022) 293 FCR 509 (Deng) observed that in the absence of a definition:
The question is therefore left to be determined on the basis indicated above, namely by reference to the text, context and purpose of the expression “member of a person’s family”. We agree with the primary judge (at [156]-[157]) that the expression should not be narrowly construed and that it could extend (depending on the circumstances) to a person who is in an intimate relationship with the person.
119In Dore and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 1750, the Tribunal had regard to the definition of ‘family member’ in the Family Law Act 1975 (Cth) (Family Law Act) in applying the family violence considerations. While accepting the Tribunal’s assessment is not constrained by the definition of family members contained in the Family Law Act, the Tribunal considers the definition is useful in understanding the sorts of relationships which may be considered to fall within the expression of family members under the Direction noting in particular that this however includes extended family members of a person and a person’s married or de facto partner or former married or de facto partner.
120Section 5G of the Migration Act provides that, for the purposes of the Act, the members of a person’s family and relatives of a person are taken to include the following:
(a)de facto partner of the person;
(b)someone who is the child of the person, or of whom the person is the child, because of the definition of child in section 5CA;
(c)anyone else who would be a member of the person’s family or a relative of the person if someone mentioned in paragraph (a) or (b) is taken to be a member of the person’s family or a relative of the person.
…
124The term “intimate personal relationship” is not defined within Direction no. 110 or the Migration Act and Regulations. Therefore, the ordinary meaning of the words should be adopted. The Tribunal notes that whilst many intimate personal relationships will involve a sexual relationship, this is not a requirement. It can also include relationships where some other form of personal or emotional intimacy exists. In any event, that definition is not exhaustive and would not exclude persons who in the ordinary meaning of the words would be considered members of the person’s family.
More recently, Justice Jackson in CRNL FC No 2 found with respect to the equivalent terms of former ministerial Direction No. 99, that:
49Paragraph 8.2(2) [of the Direction] tells decision makers how they must determine whether family violence is a relevant consideration. Sub-paragraph (a) requires no elucidation for present purposes. Sub-paragraph (b) effectively requires decision makers to answer two questions in the affirmative: is there ‘information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence’, and has the non-citizen been ‘afforded procedural fairness’?
50Then sub-paragraph (3) direct decision makers as to the factors they must consider in ‘considering the seriousness of the family violence engaged in by the non-citizen’. It is at that point that the decision maker is required to assess the seriousness of the family violence by reference to the various factors.
51Understood in context, then, what paragraph 8.2(2) requires is a threshold inquiry into whether the primary consideration of family violence is a relevant one. It requires the decision maker to find that it is relevant, if the criterion in sub-paragraph (a) and/or the criteria in sub-paragraph (b) are satisfied.
52In my view this neither requires nor leaves room, at this point, for any consideration of the veracity of the materials relied on. That is evidently so in connection with sub-paragraph (a) concerning criminal convictions, and is also the case with sub-paragraph (b). In the latter provision, the drafters of the direction can be seen to have taken into account the possibility that evidence from other sources may well be less reliable than a guilty verdict in a court of law. They have addressed that requiring that the sources available are independent and authoritative, and that procedural fairness has been afforded. Provided those criteria are satisfied, the Tribunal must determine that family violence is a relevant criterion, and move on to the various evaluations required by sub-paragraph (3).
53In my respectful view, this understanding of paragraph 8.2 of Direction 99 is consistent with views expressed by Burley J in Aghbolagh [v Minister for Immigration [2023] FCA 43] (‘Aghbolagh’) at [35]-[36] (emphasis in original):
…When read as a whole, para 8.2(2) identifies the circumstances where the receipt by a decision maker of information in relation to the perpetration of family violence is to be considered relevant. In para 8.2(2)(a) this will arise upon a non-citizen being convicted of an offence, found guilty of an offence or having charges proven (however they are described) that ‘involve’ family violence. The definition of ‘family violence’ is broad and extends beyond physical assault to include derogatory taunts, destruction of property and includes acts that fall within the ambit of what might broadly be termed as acts of coercive control: see definition at [8] above. Consideration of ‘family violence’ is also relevant to a decision maker where, under para 8.2(2)(b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is or has been involved in the perpetration of family violence. Sub-paragraph (b) is self-evidently of broader scope than (a). At its widest, it identifies that the decision maker must take into account as a consideration not only evidence, but information indicating the non-citizen’s perpetration of family violence. This is relevantly subject to the limitation that it is from ‘independent and authoritative sources’.
However, para 8.2(2) does not establish a particular standard of fact finding. It presents the circumstances in which the consideration crosses the threshold of ‘relevance’ by reference to the identified information. The question of what may be considered to be an independent and authoritative source is left to the decision maker, being a question of evaluation having regard to the nature of the conduct and the circumstances of the particular case. This is a familiar task and is to be understood in the context of s 33(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), which provides for the Tribunal to conduct a proceeding with as little formality and technicality as required by the case, noting that the Tribunal is not bound by the rules of evidence, but may inform itself on any matter in such manner as it thinks appropriate.
54At [41] Burley J described the ‘threshold of relevance’ set by paragraph 8.2(2)(b) as ‘low’.
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