Mejias Gallardo and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Mejias Gallardo and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 960 (23 April 2020)
Division:GENERAL DIVISION
File Number: 2020/0684
Re:Hugo Andrea Mejias Gallardo
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:23 April 2020
Place:Sydney

The decision under review is set aside and substituted such that this Tribunal does not exercise the power conferred by section 501(2) of the Migration Act 1958 (Cth) to cancel the Applicant’s visa.
....................................[sgd]....................................
Senior Member Theodore Tavoularis
CONTENTS
REASONS FOR DECISION
Background
Issues
Does the Applicant pass the Character Test?
Is the Tribunal’s discretion pursuant to s501A(d) engaged?
Primary Consideration A – Protection of the Australian Community
The Nature and Seriousness of the Applicant’s Conduct to Date
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
The Delegate of the Minister (Decision dated 3 January 2020)
Consultant Psychologist Mr Tim Watson-Munro (“Mr Watson-Munro”) (Report dated 11 March 2020)
Evidence in Chief of Mr Watson-Munro
Cross-examination of Mr Watson-Munro
Other witnesses
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct

Conclusion: Primary Consideration A
Primary Consideration B: The Best Interests of Minor Children in Australia
The Applicant’s written evidence
Cross-examination of the Applicant

Application of Factors in Paragraph 9.2(4) of the Direction
Conclusion: Primary Consideration B
Primary Consideration C – The Expectations of the Australian Community
The relevant paragraphs in the Direction
Factual circumstances relevant to this Primary Consideration C
The Evolution of the Australian Community’s “Expectations”
Analysis – Allocation of Weight to this Primary Consideration C

Conclusion: Primary Consideration C
Other Considerations
(a) International non-refoulement obligations
(b) Strength, nature and duration of ties
(c) Impact on Australian business interests
(d) Impact on victims
(e) Extent of impediments if removed
Findings: Other Considerations
Is the Tribunal’s discretion not to exercise the power to cancel the subject visa engaged?
Decision
‘Annexure A’ - Exhibit Register
Catchwords
MIGRATION – Cancellation of Applicant’s visa under s501(2) of the Migration Act 1958 - where Applicant does not pass the character test – whether discretion not to exercise the power to cancel the subject visa pursuant to s501A(d) – consideration of Ministerial Direction No. 79 – decision under review set aside and substituted
Legislation
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
PNLB v Minister for Immigration and Border Protection [2018] AATA 162
Saleh v Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
Secondary Materials
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member Theodore Tavoularis
23 April 2020
BACKGROUND

This matter relates to an application for review filed by Hugo Andrea Mejias Gallardo (“the Applicant”) on 10 February 2020. The decision under review is the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister” or “the Respondent”) notified to the Applicant on 30 January 2020. The delegate’s decision pursuant to s501(2) of the Migration Act 1958 (Cth) (“the Act”) was to cancel the Applicant’s visa.[1]
[1] The subject visa that was cancelled was a Class BB Subclass 155 Resident Return Five Year visa.
The Tribunal has jurisdiction to review the decision of the delegate pursuant to s500(1)(ba) of the Act.
The Applicant is a 37 year old citizen of Chile. Movement records indicate that he first arrived in Australia on 23 June 2000. He departed Australia on 22 April 2002 and returned on 24 August 2003. He again departed Australia on 6 September 2011 and returned on 22 March 2012. He has not departed Australia since 22 March 2012.[2]
[2] Exhibit G1, s501 G Documents, G33, page 201.
Upon his most recent arrival, he was granted a Class BC Subclass 100 Partner visa.[3] The Applicant continued to hold this class of visa until 1 December 2016, when he became the holder of a Class BB Subclass 155 Resident Return Five Year visa.[4] It is this latter visa which was cancelled by the Minister’s delegate in the decision under review notified to the Applicant on 30 January 2020.
[3] Ibid.
[4] Ibid, G12, page 72.
The Applicant has a relatively limited criminal history in Australia. Its more serious aspects primarily derive from four episodes of offending against the person in the form of domestic violence offending. The less serious aspects of the history involve the Applicant’s detection for operating a motor vehicle with a low-range level of blood alcohol concentration.[5] Stated more succinctly, the domestic violence offending occurred in 2005, 2006 and twice in 2009. There are two low-range drink driving offences. The first was in June 2013 and the second in December 2017. There is also a traffic history which contains no entries after 2015.
[5] Ibid, G6, pages 49 to 51.
As mentioned earlier, on 30 January 2020, a delegate of the Minister initially notified the Applicant that his visa had been cancelled pursuant to s501(2) of the Act. The cancellation occurred on the basis of the Respondent forming the view that the Applicant did not pass the character test because, pursuant to s501(6)(a) of the Act, he had a “substantial criminal record” as defined by s501(7)(c) of the Act. The Respondent’s view derived from the reality that the Applicant had been sentenced to a term of imprisonment of more than 12 months.[6]
[6] Thus satisfying the definition of “substantial criminal record” stipulated in s501(7)(c) of the Act.
There followed, on 10 February 2020, the filing of the present application for review in this Tribunal.[7]
[7] Exhibit G1, s501G Documents, G1, pages 1 to 7.
The hearing of the instant application proceeded on 14 and 15 April 2020. The hearing received oral evidence from: (1) the Applicant; (2) the Applicant’s current de facto partner (Ms Jagwida Panek); (3) his sister (Lorena Mejias); (4) his niece (Valentina Diaz); and (5) the consultant psychologist, Mr Tim Watson-Munro.
The Tribunal also received written evidence. This written evidence was particularised into an agreed exhibit list, a true and correct copy of which is attached to these Reasons and marked “Annexure A”.
ISSUES
Section 501(2) of the Act provides that:
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
There is no question that the Applicant does not pass the character test by virtue of his “substantial criminal record”,[8] deriving from the imposition of a term of imprisonment upon him of 12 months or more.[9]
[8] Per s 501(6)(a) of the Act.
[9] Per s501(7)(c) of the Act.
Section 499(2A) of the Act provides that in determining an application seeking to set aside the cancellation of a visa pursuant to s501(2) of the Act, the Tribunal must have regard to Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancelation of a visa under s501(CA) made pursuant to s499 of the Act (“the Direction”).
The Direction contains (1) guidance for decision makers, and (2) certain Principles that provide a framework within which decision makers should approach the task of deciding whether to exercise the discretion to cancel a non-citizen’s visa. Part A of the Direction identifies the considerations relevant to visa holders in determining whether to exercise that discretion.
Section 501A of the Act provides as follows:
“(1) This section applies if:
…
(b) the Administrative Appeals Tribunal;
makes a decision…
…
(d) not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person;
whether or not that person satisfies the…Tribunal that the person passes the character test and whether or not the…Tribunal reasonably suspects that the person does not pass the character test.”
There are therefore two issues presently before the Tribunal:
(a)whether there is a reasonable suspicion that the Applicant does not pass the character test, and whether the Applicant does not satisfy the Tribunal that he passes the character test; and
(b)whether the Tribunal should not exercise its discretion conferred by s501(2) to cancel the Applicant’s visa.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must not cancel the Applicant’s visa. I will address each of these grounds in turn.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As mentioned earlier, the character test is defined in s501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant, helpfully, concedes that “…Mr Mejias does not pass the character test for the reason given by the delegate.”[10] The delegate found as follows:
“…Mr MEJIAS GALLARDO has a substantial criminal record. I reasonably suspect that he does not pass the character test by virtue of s501(6)(a) of the Act with reference to s501(7)(c) of the Act and that he has not satisfied me that he passes the character test. I therefore find that Mr MEJIAS GALLARDO does not pass the character test.”[11]
[10] Exhibit A2, Applicant’s Statement of Facts, Issues and Contentions (“SFIC”), page 1, paragraph [6].
[11] Exhibit G1, s501G Documents, G5, page 38.
The Applicant’s concession was appropriately made. It is necessary to understand the entirety of the Applicant’s offending history. In reality, it essentially involves two episodes of domestic violence offending in 2005 and 2009, respectively. It also involves two episodes of low range drink-driving offending. It should be noted that:
·On 16 September 2005, the Applicant was convicted of two counts of common assault. For this offending, the Applicant was issued a good behaviour bond pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“s10 Bond”). As well, the sentencing court made an Apprehended Violence Order (“AVO”) protecting the aggrieved spouse until 15 September 2006;
·These two convictions were “called up” on 20 December 2005. Consequent upon that, the Applicant was given a $200 fine for each offence;
·On 20 December 2005, the Applicant was convicted of common assault, assault occasioning actual bodily harm, and a contravention of the abovementioned Apprehended Domestic Violence Order (“AVO”). Consequent upon this offending, he was given a good behaviour bond pursuant to section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“s9 Bond”) and placed on supervised probation for 12 months;
·Those three offences were “called up” on 7 December 2006, whereupon the Applicant was given another s9 Bond having a duration of 12 months;
·On 30 July 2009, the Applicant was convicted of three counts of common assault against his then-domestic partner. He was given respective 12-month suspended sentences on each charge. Further, an AVO was put in place to protect the aggrieved spouse until 30 July 2010;
·Those offences were “called up” on 4 December 2009, whereupon the Applicant, for each of them, received a head custodial term of periodic detention of 12 months (each with a non-parole period of six months);
·Also on 4 December 2009, the Applicant was convicted of (1) assault occasioning actual bodily harm, and (2) contravening prohibition/restriction in an AVO against the aggrieved spouse named in that AVO;
·On 11 June 2013, the Applicant was convicted of one count of low-range drink driving. He was fined the sum of $300 and disqualified from driving for six months;
·On 14 December 2017, the Applicant was convicted of one count of low-range drink driving. He was fined the sum of $1200 and received a disqualification from driving described as “Disqualification – Driver 2 Months Participation Alcohol Interlock Program: 12 Months”.
Despite the fact that the aforementioned 12 month custodial terms imposed on 4 December 2009 provided for a non-parole period of six months, what matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they actually served.[12]
[12] See Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409, 415-416.
Consequently, I am satisfied that the Minister reasonably suspected that the Applicant does not pass the character test and that the Minister was reasonably satisfied that the Applicant does not pass the character test. Accordingly, the Applicant cannot rely on s501(2)(a) or (b) to vitiate the Tribunal’s discretion (pursuant to s501A(d)) not to exercise the power to cancel his visa.
IS THE TRIBUNAL’S DISCRETION PURSUANT TO S501A(D) ENGAGED?
In considering whether to exercise the discretion in s501A(d) of the Act, the Tribunal is bound in accordance with s499(2A) to comply with any directions made under the Act. In this case, The Direction has application.[13] The Direction provides (at Section 2, paragraph 7) guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
…a decision maker:
a) must take into account the considerations in Part A… in order to determine whether a non-citizen will forfeit the privilege of…continuing to hold, a visa….[14]
[13] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79. Direction 79 is a Ministerial direction made pursuant to s499 of the Act and must be applied by decision makers, including this Tribunal, on and from 28 February 2019.
[14] The Direction, sub-paragraph [7(1)(a)].
The considerations relevant in the context of a cancellation decision appear in Part A of the Direction. Paragraph 9 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a non-exhaustive list in paragraph 10 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[15]
Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non-refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[16]
[15] [2018] FCA 594.
[16] Ibid at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
1)    Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
2)    The Australian community expects that the Australian government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
3)    A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia;
4)    In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
5)    Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
6)    Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
7)    The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration A, paragraph 9.1(1) of the Direction compels decision makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. In return, this paragraph stipulates an expectation that those non-citizens 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 this Primary Consideration A, paragraph 9.1(2) of the Direction requires decision makers to give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In determining the weight applicable to each of these two elements, it is necessary to have regard to the totality of the Applicant’s criminal history. The totality of that offending history can be gleaned from (1) the Applicant’s National Police Certificate appearing in the material and current to 13 June 2017,[17] (2) the Applicant’s “Check Results Report” produced by the Australian Criminal Intelligence Commission that also appears in the material and is current to 20 June 2019,[18] and (3) the helpful precis of that offending history appearing in the Respondent’s Statement of Facts, Issues and Contentions (“SFIC”).[19] I have summarised the Applicant’s offending history (including sentences imposed) earlier in these reasons.
[17] Exhibit G1, s501G Documents, G7, pages 52 to 54.
[18] Ibid, G6, pages 49 to 51.
[19] Exhibit R2, Respondent’s SFIC, page 2, paragraph [4].
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 9.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)…
(d)…
(e)…
(f)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(g)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(h)The cumulative effect of repeated offending;
(i)…
(j)…
(k)…
Sub-paragraph (a) of paragraph 9.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are to be viewed very seriously. Even a cursory review of the Applicant’s offending history obviously demonstrates the unacceptable nature of his behaviour towards former domestic partners, culminating, as it did, in the commission of violent offences against them.
Sub-paragraph (b) of paragraph 9.1.1(1) of the Direction stipulates the principle that crimes of a violent nature committed against women or children are viewed very seriously, regardless of the sentence imposed.
It is necessary to summarise the nature of the Applicant’s previous offending in order to properly assess the weight attributable to these sub-paragraphs (a) and (b). First, the Applicant’s offending committed on 6 September 2005 involved him becoming involved in an argument with his then domestic partner (“Ms O”). The argument was about something as relatively trivial as what DVD they were going to watch. The argument culminated in the Applicant dealing with Ms O in a clearly violent way as a means of “resolving” the argument. He initially pushed her onto the bed and, as the argument continued, he grabbed Ms O by the hair. The volatility of the relationship between the Applicant and Ms O can be gleaned from the following portion of the relevant New South Wales Police Facts Sheet:
“As both persons continued to yell at each other, the accused threw a slipper at the victim, the victim retaliated by throwing a shoe at him. The victim grabbed the accused around the knees until the accused was able to push the victim off. The accused and victim separated and after a short time the accused left the premises. The victim got a knife and punctured their inflatable bed.”[20]
[20] Exhibit G1, s501G Documents, G8, page 56.
There followed another argument about two things: (1) DVD selection and (2) Ms O apparently being responsible for the dropping of a plate of food onto the floor. Again, the Applicant sought to resolve this impasse by violent means. He grabbed Ms O by the hair and kicked her in the shin.[21] His conduct caused her to become seriously alarmed such that she “…ran from the house fearing for her safety and was locked out of the premises by the [Applicant].”[22] Ms O sustained “…bruising to the upper arm, slight swelling to the right shin, and small bruise to the buttock…”[23]
[21] It should be noted that the Applicant denied to the police kicking Ms O in the shin.
[22] Exhibit G1, s501G Documents, G8, page 56.
[23] Ibid.
Second, on 7 October 2005, there was a further argument between the Applicant and Ms O.[24] This time, the argument was about money problems and problems with his car. She tried to leave their residential unit and the Applicant, on a number of occasions, grabbed both her forearms with his hands to stop her. At 7pm on the same day, he and she were still arguing and she apparently said something which made him angry. Once again, the Applicant adopted a violent solution to a domestic impasse: he slapped her against her left cheek with his right hand.
[24] Ibid, G9, page 59.
Things did not improve on the following day, 8 October 2005, because the relevant New South Wales Police Facts Sheet[25] records that the Applicant and Ms O continued to argue over money problems and car problems. It appears Ms O attempted to depart the scene of the argument by leaving their residential unit. However, the Applicant grabbed her forearms and forced her to remain where she was.
[25] Ibid.
As a result of the argumentative conduct between the Applicant and Ms O on 7 and 8 October 2005, it is recorded in the aforementioned New South Wales Police Facts Sheet that “[a]s a result of the accused grabbing the victim’s forearms on a number of occasions between Friday and Saturday the victim received bruising and soreness to both her upper arms.”[26]
[26] Ibid.
Third, as noted in the Applicant’s criminal history, he was convicted of three counts of common assault (domestic violence) on 30 July 2009. That offending derives from the following incidents:
·On 14 July 2009, an argument occurred between the Applicant and his then-domestic partner, (“Ms S”). After informing him that she no longer wanted the domestic relationship with him to continue, he, once again, sought a violent solution. He is recorded as grabbing her throat with his right hand and her hair with his left hand, squeezing her throat and screaming “I’m not going to leave bitch.”[27] The relevant New South Wales Police Facts Sheet also records that the Applicant pushed Ms S’s face into the sofa and then sat on her back causing her breathing difficulties. Ms S told the police that she thought she was going to die. After she eventually got the accused to get up and off her back, he took it upon himself to throw her against the Television set. The Applicant then proceeded to push Ms S onto the floor after she had crouched down on the floor in the corner of the room. She says he attempted to assault her further, but that she successfully defended herself. As a result of the Applicant’s conduct, she “…sustained bruises to both her knees and ankles and right side of her abdomen from the incident”;[28]
·On 25 July 2009, the Applicant became involved in another domestic dispute with his then-domestic partner, Ms S. While there was no actual physical violence resulting from this argument, Ms S alleged that the Applicant threw a hairbrush at the garage door of their dwelling, which resulted in a loud sound which, in turn, had the effect of scaring her;
·On 26 July 2009, Ms S was preparing to attend a church service and a further argument ensued about her not waking him up as part of her preparations to attend the service. Later on that day (but apparently before she went to church), the Applicant threw something in the order of five pillows at her, impacting her on her back. The New South Wales Police Facts Sheet records that Ms S is a relatively slight woman weighing some 45 kilograms, which lends credence to her allegation that the impact of the pillows have cause her to “shift forward”. The Applicant is alleged to have addressed her on these terms: “Bitch, bitch, you fucking bitch”. While not necessarily of a violent nature, the Applicant’s conduct later that day was nevertheless unpredictable. He and Ms S went to the local shops and became involved in yet another argument. Consequent upon that argument, the Applicant left the area with their daughter;
·On 26 September 2009, the Applicant and Ms S attended a party. An argument between them ensued whereby he physically interfered with her with sufficient force as to cause her to fall down a flight of stairs and hit the back of her head. He denied her the opportunity to get up and, in doing so, pushed her into a pile of timber. The Applicant has approached Ms S who has then kicked the Applicant in the stomach and further retaliated by throwing a shoe at him. This was met by him slapping her on the face and grabbing and squeezing her arm with sufficient force such as to pull her out of the house. He also pushed her in the chest and again slapped her face. His conduct caused Ms S’s 10 year old son (from a previous relationship) to involve himself in the physical altercation, by placing himself between his mother and the Applicant, presumably in an effort to quell the melee. Ms S began to hug her 10 year old son and the Applicant then grabbed hold of the 10 year old’s shirt, “…with enough force to propel him off…” Ms S. The argument then evolved into a contest about the keys to their motor vehicle because the Applicant “…then grabbed the keys and pulled them with force through the victims hand causing a cut about 1cm long to her left middle finger which immediately began to bleed.”[29] This episode culminated in Ms S telling her friend that “…I don’t want him to come home with me, I am scared of him.”[30]
[27] Ibid, G10, page 62.
[28] Ibid, G10, page 63.
[29] Exhibit G1, s501G Documents, G11, page 69.
[30] Ibid, page 70.
Under cross-examination, the Applicant largely accepted the factual circumstances of his violent offending against his previous domestic partners. He similarly accepted that he was either in court at the time each sentence was imposed, and/or that he was otherwise aware of the nature and effect of all sentences that had been imposed upon him. He only seemed to take issue with the incident involving Ms S at the party on 26 July 2009. In cross-examination, this is what transpired between the Applicant and the Respondent’s representative:
“MR HILLIARD:[31] Thank you. So you attended the party with [Ms S] and the children. That’s correct, isn’t it?
APPLICANT: Well, I attend to the party to put in a music on my way – the neighbours from my sister and she arrived after with the kids, but she wasn’t invited to the party, because it wasn’t a party, yes.
MR HILLIARD: The two of you had an argument after she said that she wanted to leave. Is that correct?
APPLICANT: Yes, after she drinks at least seven or eight bottles of Corona, she wants to go back home with the kids on the car and she was obviously intoxicated by the alcohol. That’s what it was our argument.
MR HILLIARD: Okay, so you were trying to stop her from drink driving, effectively?
APPLICANT: That’s correct.
MR HILLIARD: Okay?
APPLICANT: She was with my kids, of course. I was telling her to just – she can go by herself, but leave the kids with my sister and she wasn’t – she didn’t want to, she start arguing with me and we start arguing of course.”[32]
[31] Solicitor, Sparke Helmore, representatives of the Respondent.
[32] Transcript, 14 April 2020, page 19, lines 8 to 23.
While there may be truth in the above quoted evidence from the Applicant, it does not serve to ameliorate the seriousness of his conduct. In none of the above instances should he have imposed himself in such a violent way with his former domestic partners. The totality of his violent offending towards his former domestic partners is both appalling and very serious.
Having regard to this sub-paragraph (a) and (b) of paragraph 9.1.1(1) of the Direction, it is clear that his offending constitutes both (for the purposes of sub-paragraph (a)) violent crime and (for the purposes of sub-paragraph (b)) crime of a violent nature against women. The combined effect of sub-paragraphs (a) and (b) is that, regardless of the sentences imposed, the Applicant’s conduct towards those victims must be viewed very seriously.
Sub-paragraph (c) of Paragraph 9.1.1(1) of the Direction provides that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the positions they hold, or in the performance of their duties, are serious.
While the Applicant has not been convicted of a crime of a violent nature against a child, there is no denying that his violent conduct towards his former domestic partners has drawn infant children into its orbit. First the relevant New South Wales Police Facts Sheet records that Ms S gave birth to a biological child of the Applicant (a daughter, “Child T”) in October 2008. She and the Applicant were estranged at the time but resumed their relationship several months later in April 2009 following the birth of Child T. This facts sheet records the following:
“About two months the accused became physically and verbally abusive towards the victim. The victim alleges that the accused has also become physical with their daughter where he has rolled [Child T] up in a blanket and pushed down on her repeatedly with both his hands. The victim also alleges that the accused has also thrown [Child T] onto the bed and when this has happened she has gone to defend [Child T] however the accused has hit her and [Child T] in the head...”[33]
[33] Exhibit G1, Section 501G Documents, G10, page 62.
The relevant facts sheet further records that:
“In relation to assaulting his baby daughter the accused stated that he has never assaulted his daughter however at times when he has been holding her the victim has tried to pull her out of his arms and he has pulled her back.
The accused also stated that he has a very bad temper and can explode at any time.”[34]
[34] Ibid, page 64.
Second, in the incident involving Ms S at the party, the relevant New South Wales Police Facts Sheet records the 10 year old child of Ms S from a previously relationship (“Child S”) becoming himself involved in that melee as follows:
“The [Ms S]’s son [Child S] who is 10 years old saw his mother being pushed by the [the Applicant] and said “Stop pushing my mum, stop hurting my mom, I hate you!”.
The [the Applicant] has then used his open palm to push the [Ms S] in the chest onto a lounge. The [the Applicant] then used his open palm to slap the [Ms S] on the left side of her face.
[Child S] then ran in between the [Ms S] and the [the Applicant] and began to hug the [Ms S]. The [the Applicant] has then used his hand to pull the back of [Child S]’s shirt with enough force to propell him off the [Ms S].”[35]
[35] Exhibit G1, s501G Documents, G11, page 69.
While I accept that the Applicant was not charged or convicted with a crime committed against a vulnerable member of the community – in this case, the two abovementioned children – I nevertheless note the conduct of the Applicant with regard to both children. According to the relevant New South Wales Police Facts Sheets, the Applicant (1) was accused of having struck the then one year old Child T “in the head” and (2) pulled the back of Child S’s shirt with sufficient force to propel him away from his mother.
Viewed in its totality, while his conduct towards the two children has not been constitute criminal conduct, I am of the view that the Applicant’s violent conduct towards his former partners has placed both children directly in harm’s way. I will take the cautious path and not allocate any weight to this sub-paragraph (c). However, I will refer to the above-described conduct later in these reasons when I refer to the chapeau of paragraph 9.1.1(1) of the Direction when discussing “other conduct” of the Applicant to which I can have regard over and above the categories of conduct specified in the 11 sub-paragraphs to this paragraph 9.1.1(1) of the Direction.
Sub-paragraph (f) of paragraph 9.1.1(1) of the Direction directs a decision-maker to the sentence(s) imposed by the courts for a crime or crimes of a non-citizen/applicant, with specific reference to sub-paragraph (b) of paragraph 9.1.1(1) of the Direction. The imposition of a custodial term is regarded as the last resort in any reasonably applied sentencing process. Custodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence(s) committed by an applicant.[36]
[36] See PNLB v Minister for Immigration and Border Protection [2018] AATA 162 at paragraph [22]; and Saleh v Minister for Immigration and Border Protection [2017] AATA 367 at paragraph [50].
The Applicant has a sentencing history (in terms of violent offending in a domestic context) that runs for four years. He received the benefit of a progressive sentencing regime, commencing with the imposition of respective s10 Bonds, which only compelled him to refrain from doing something but did not otherwise compel him to further engage with lawful authority. There followed the imposition of a series of s9 Bonds, which both compelled him to refrain from doing something, but also compelled him to, for a period of 12 months, compulsorily engage with the Parramatta Probation Office.
No deterrent effect was experienced from the imposition of either of these types of bonds. There followed the imposition of wholly suspended terms of imprisonment for the three convictions for common assault on 30 July 2009. Again, no deterrent effect was experienced. On 4 December 2009, he was finally sentenced to respective custodial terms of periodic detention (served concurrently) of up to 12 months, with a non-parole period of six months. To be fair to the Applicant, it must be noted that he did experience a deterrent effect from the sentencing regime imposed upon him on 4 December 2009.
He has not, since at least 4 December 2009, committed any further violent crimes, be they in a domestic or other context. I accept that he has experienced a deterrent effect from the respective custodial terms of periodic detention imposed on him on 4 December 2009.
For present purposes, it should be accepted that the nature of the sentences received by the Applicant do, to a certain extent, militate in favour of a finding that his offending was – between 2005 and 2009 – of a serious to very serious nature. However, that observation must be counterbalanced by the obvious deterrent effect he has experienced from 2009 until now. Accordingly, I allocate only a very slight measure of weight to this sub-paragraph (f) of paragraph 9.1.1(1) of the Direction in favour of a finding that the sentences imposed by the courts across this Applicant’s relatively brief offending history are demonstrative of the serious nature of his offending.
Sub-paragraph (g) of paragraph 9.1.1(1) of the Direction points a decision-maker to the frequency of non-citizen’s offending and whether there is any trend of increasing seriousness. To an extent, the investigatory exercise required by this sub-paragraph (g) largely mirrors that required in an application of the immediately preceding sub-paragraph (f). This is because any increasing trend in the seriousness of offending is usually analogous to the regime of sentencing imposed for it. For present purposes, it cannot be said that the Applicant has a gradually evolving history of offending such that it commenced with relatively minor or non-indictable offending before graduating to more significant and indictable offences of the type for which he was dealt with during the period 2005-2009.

His offending has consistently involved a resort to a violent or physically imposed solution to a perceived domestic impasse. His offending did not necessarily escalate in severity across his four year period of domestic violent offending. It was serious to very serious from its outset. The quite significant points are: (1) the sentencing courts applied progressively more serious and severe sentences which, on any reasonable view, have had a deterrent effect on the Applicant because he has not re-offended in a like way for over 10 years; and (2) his offending has not evolved into either different or increasingly serious behaviour.
His history in the broader Australian community is not suggestive of him being arbitrarily violent towards anyone and everyone. He has held down reliable and remunerative employment for almost a decade and is well-regarded by his employer. There is probably no doubt that he has been confronted with difficulties and disagreements in a social context during his time in this country since 2009/2010, yet there is no suggestion of him becoming violent as a result of that, towards anyone.
I accept that his violent offending in a domestic context – for the four years of its duration - was of a very serious nature from its outset. However, any weight attributable to this sub-paragraph (g) must be tempered by the reality that the Applicant’s offending arose from an identifiable bad phase of his life in this country, and can be exclusively limited to the context of his now concluded domestic relationships with former spouses.
While not necessarily frequent against multiple victims, his offending has been sufficiently frequent against at least two former domestic spouses across its four year duration. His previous relationships with the two subject former spouses were tempestuous and the failure to deal with domestic difficulties involving those spouses without resulting in violent or physical means is, of course, entirely his.
Thus, an application of this sub-paragraph (g) of paragraph 9.1.1(1) of the Direction points to a finding that, whilst the Applicant’s offending was not necessarily frequent over a particularly long period of time (in the context of his almost 18 years in this country), it was frequent across the four year period of its duration from 2005 to 2009. He appears to have learnt his lesson and experienced a deterrent effect from the custodial terms imposed upon him in December 2009.
On balance, I am of the view that, to any extent this sub-paragraph (g) militates in favour of cancellation, it should be tempered against its relative brevity of the offending across a four year period that occurred over a decade ago. I accordingly allocate a slight level of weight to this sub-paragraph (g) in favour of cancellation of the subject visa.
Sub-paragraph (h) of paragraph 9.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending. The Applicant first came to this country in June 2000. He had been here for approximately 18 years until his placement into immigration detention at the end of January 2020.
He was last removed from the Australian community for a period of no more than six months in December 2009. The conduct grounding the cancellation of his visa has seen him physically removed from the Australian community for no more than six months of the approximately 18 years he has spent here. That is a period equivalent to 1/36^th of his time in Australia. Put in another and more disadvantageous way for the Applicant, even if one cumulatively adds the total of custodial time imposed (i.e. three terms of 12 months), we are talking about a period of slightly less than one sixth of his total time in Australia.[37]
[37] The material does not contain sentencing remarks informative of whether the custodial terms were to be served concurrently.
Uniquely to this case, another (and for the Applicant, positive) cumulative effect of the Applicant’s offending is the reality that he has not re-offended in a like way for approximately 10 years. I note and accept his two low-range drink-driving convictions in 2013 and 2017. Be that as it may, this is not a case where the Applicant’s persistent and repeated offending have caused him to be placed in criminal custody and at the conclusion of serving that term, to be then immediately taken into immigration detention. This Applicant did what he did from 2005 until 2009. He served a custodial term of six months starting in December 2009. He has not re-offended in a like way since.
Thus the cumulative effect of the Applicant’s physical offending can be seen from at least three aspects. First, his offending has not been respectful of the personal rights of two former spouses insofar as their own personal space and rights are concerned. His offending caused harm to those victims. Second, his offending occurred across a four year period from 2005 to 2009 and he has not re-offended in a like way since that time. Third, his offending has seen him physically removed from the Australian community for only six months out of the approximately 18 years he has spent here.
Accordingly, the application of this sub-paragraph (h) to the present factual matrix gives rise to the finding that a slight measure of weight is attributable to this sub-paragraph (h) in favour of a finding that the cumulative effect of his past offending is such as to render it serious to very serious.
The chapeau to the factors at Paragraph 9.1.1 of the Direction reads as follows:
“(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including: …”
[My underlining]
As alluded to earlier, there are at least two further aspects to the Applicant’s conduct which, although not directly captured by the 11 factors at Paragraph 9.1.1(1) of the Direction, nevertheless, to my mind, constitute “other conduct” relevant to any assessment of the nature and seriousness of the Applicant’s conduct.
First, I refer to the Applicant’s conduct in relation to Child T as recorded in the relevant New South Wales Police Facts Sheet. He “…has rolled [Child T] up in a blanket and pushed down on her repeatedly with both his hands…that the accused has also thrown [Child T] onto the bed…the accused has hit…[Child T] in the head.”[38] Second, I refer to the Applicant’s conduct in relation to Child S as recorded in the relevant New South Wales Police Facts Sheet. He “…used his hand to pull the back of [Child S’s] shirt with enough force to propell him off the victim.”[39]
[38] Exhibit G1, s501G Documents, G10, page 62.
[39] Ibid, G11, page 69.
While these two aspects of the Applicant’s conduct do not appear in his criminal history, and are not be strictly captured by any of the 11 sub-paragraphs in paragraph 9.1.1(1) of the Direction, I am nevertheless of the view that the these two aspects of his conduct are nevertheless relevant to an assessment of the seriousness of his offending due to their characterisation as “other conduct” in the abovementioned chapeau to Paragraph 9.1.1(1) of the Direction.
Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs (a), (b), (f), (g) and (h), of paragraph 9.1.1(1) of the Direction (and its chapeau) are relevant, I am of the view that the Applicant’s conduct can be characterised as “serious”. Upon application of the respective weights I have attributed to the relevant sub-paragraphs of paragraph 9.1.1(1) of the Direction (and its chapeau), I find that the nature and seriousness of the Applicant’s conduct to date is of a serious nature.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 9.1.2(1) tells a decision maker that in considering whether a non-citizen represents an unacceptable risk of harm to the Australian community, regard should be had to the principle that the Australian community’s tolerance for any risk of harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, were it to be repeated, is so serious that any risk of it being repeated may be unacceptable.
In considering and assessing the risk a non-citizen poses to the Australian community, paragraph 9.1.2(2) provides that a decision-maker should have regard to the two following factors on a cumulative basis:
(i)Paragraph 9.1.2(2)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)Paragraph 9.1.2(2)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
oInformation and evidence on the risk of the Applicant re-offending; and
oEvidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since his most recent offence.
In the hearing before me, the sole primary independent and expert witness who provided oral evidence informing the Tribunal about the Applicant’s risk of re-offending was the Consultant Psychologist Mr Tim Watson-Munro. His report is dated 11 March 2020 and appears as Item 8 to Exhibit A1 in the exhibit material. As well, Mr Watson-Munro gave oral evidence in chief at the hearing and was cross-examined by the Respondent’s representative. It should also be noted that the only other person who has made assessment about the Applicant’s risk of re-offending is the Minister’s delegate in the decision under review.[40] I will summarise each of these findings in turn.
[40] Exhibit G1, s501G Documents, G5, pages 38 to 47.
The Delegate of the Minister (Decision dated 3 January 2020)
An initial point to note about the delegate’s decision under review is that the delegate did not have the benefit of either Mr Watson-Munro’s report or any other expert’s report about the Applicant’s risk of re-offending or any other details of his psychopathy that could be informative about the Applicant’s risk of recidivism.
In making an assessment of the Applicant’s risk to the Australian community, the delegate had regard to the 2 limbs of paragraph 9.1.2 of the Direction – nature of harm and risk of recidivism. The delegate said:
“28. I have considered whether Mr MEJIAS GALLARDO poses a risk to the Australian community through reoffending by having regard to any mitigating or causal factors in his offending, and giving consideration to the steps Mr MEJIAS GALLARDO has undertaken to reform and address his behaviour. I have also taken into account Mr MAJIAS GALLRDO’s overall conduct in the custodial and non-custodial environment, and his insight into the offending.
…

31. I have taken into account Mr MEJIAS GALLARDO’s statement that he is deeply regretful for the domestic violence offences and breaching the Apprehended Violence Order, he is well aware of the nature of the harm committed, and apologises to ‘the people involved’ and the Australian community. I have considered the statements of Mr MEJIAS GALLARDO’s family members, who state that Mr MEJIAS GALLARDO’s prison sentence was a great shock to the family, and his period of incarceration was ‘such a painful experience, full of regret’. I accept that Mr MEJIAS GALLARDO is regretful for his offending and his resultant imprisonment.
32. I have considered the statements from Mr MEJIAS GALLARDO’s current and previous partners, who have attested to his respectful behaviour during their relationships. Furthermore, I give weight to Mr MEJIAS GALLARDO’s lack of further offending since his release from prison, and find that the time which has elapsed since his offending lessens the risk of his reoffending. However, I have concerns that Mr MEJIAS GALLARDO has not demonstrated any insight or remorse regarding the effects his earlier offending had on the victims, and consider that there remains a risk of his reoffending.
…
35. I give some weight to the fact that Mr MEJIAS GALLARDO has not been convicted of any further violent or domestic violence related offending since the completion of his sentence in 2010. I note that he has, however, been convicted of two drink driving offences since that time and consider that this indicates an ongoing disregard for the law.
36. Taking the factors listed above into consideration, I find there is an ongoing risk, albeit less than before, that Mr MEJIAS GALLARDO will reoffend. Mr MEJIAS GALLARDO has a history of frequent and repeated offending, including some violent offences, and several breaches of domestic violence orders, involving more than one victim. He has had a number of different partners and may in future form a relationship with someone unlike his recent partners and more like his earlier partners, in which case he could again engage in conflict and negative behaviour. He has made limited representations regarding rehabilitative efforts, and has not demonstrated sufficient insight into his offending behaviour. Should Mr MEJIAS GALLARDO reoffend in a similar manner, it may result in psychological and/or physical harm to members of the Australian community.”[41]
[My emphasis and underlining]
[41] Ibid, pages 42 and 43.
I appreciate that the hearing before me is a hearing de novo. The present exercise does not constitute an appeal from the delegate’s decision such that I am to review and scrutinise that decision with a view to finding one way or the other as occurs in the appeal process. However, it is pertinent to make certain observations about the delegate’s finding if, for no other reason, than to assess those findings on the basis of the evidence not then available to the delegate but that is now available to the Tribunal.
The delegate takes into account the Applicant’s “overall conduct in the custodial and non-custodial environment, and his insight into the offending.” At paragraph [31], the delegate speaks of taking into account the Applicant’s deep regret for his offending, his awareness of the nature of the harm he committed as a result of that offending and his apology to both his victims and the Australian community. The delegate accepts that the Applicant “…is regretful for his offending and his resulting imprisonment.” However, in the immediately following paragraph [32], the delegate says “I have concerns that Mr MEJIAS GALLARDO has not demonstrated any insight or remorse regarding the effects his earlier offending had on the victims and consider that there remains a risk of reoffending.”
I have difficulty with understanding how this latter conclusion is reached in circumstances where, at paragraph [28], the delegate confirms they have taken into account the Applicant’s insight into the offending and, further, at paragraph [31], where the delegate says they have taken into account the Applicant’s deep regret for his offending, his awareness of the harm caused thereby and his apology to the victims and the Australian community.
At paragraph [32], the delegate confirms that “…I give weight to Mr MEJIAS GALLARDO’s lack of further offending since his release from prison, and find that the time which has elapsed since his offending lessens the risk of reoffending.” This observation/finding is repeated at paragraph [35], where it is noted that the Applicant “has not been convicted of any further violent or domestic violence related offending since the completion of his sentence in 2010.” As I read the decision, that finding is sought to be tempered by with a notation that he has two drink driving convictions (in 2013 and 2017).
I do not think the Applicant’s two convictions for low range drink driving in 2013 and 2017 – four years apart – in any way temper an observation or finding that he has not been convicted or any further violent or domestic violence offending since 2010.
At paragraph [36], the delegate refers to the Applicant’s history of relationships with a number of different partners and seems to harbour a concern that he “…may in future form a relationship with someone unlike his recent partners and more like his earlier partners, in which case he could again engage in conflict and negative behaviour.” This observation/finding is at odds with the delegate’s notation at paragraph [32] where it is noted that “I have considered the statements from Mr MEJIAS GALLARDO’s current and previous partners, who have attested to his respectful behaviour during their relationships.”
Further, there is nothing in the material to suggest that the Applicant’s pre-2010 domestic partners (i.e. the victims of his offending) were or are “unlike his recent partners”. The evidence is replete with confirmations that, since 2010, the Applicant has been in three serious domestic relationships and none of them involved the Applicant committing any act of domestic or other violence. His statement makes this clear:
“8. My next relationship was with a Chilean woman Francisca Zuniga. I went back to Chile with her in 2011 and although we were and remain legally married the relationship did not last very long and I came back to Australia on my own in 2012.
9. Back in Australia I met Paola Riquelme. Our relationship lasted for about five years…my relationship with Paola came to an end in 2017.
10. My current partner is Jadwiga Panek. We have been together since about the middle of 2017…
…
13. I ask the Tribunal to take into account that I have not done anything like that [i.e. domestic violence related offending] in over ten years. I was not violent with Francisca or Paola even though the relationships did not last, and I have never been violent with Jadwiga or anyone else. I want to get over that time in my life and the person who I was then, and I believe I have done so.”[42]
[42] Exhibit A1, Applicant’s Tender Documents, Item 4, page 16.
The conclusion that the Applicant may re-offend if he ends up in a relationship “with someone unlike his recent partners and more like his earlier partners…” is, with respect, tenuous at best. It is not supported by the evidence comprising (1) the passage of almost 10 years since the Applicant’s last domestic violence offending episode, and (2) the complete absence of any evidence confirming his “earlier partners” were in any way “unlike” his three most recent partners.
Consultant Psychologist Mr Tim Watson-Munro (“Mr Watson-Munro”) (Report dated 11 March 2020)
Mr Watson-Munro examined the Applicant on two separate occasions. The first examination occurred on 27 February 2020, in person, while the Applicant was in immigration detention in Sydney. There followed a telephone discussion between Mr Watson-Munro and the Applicant on the day before Mr Watson-Munro gave his evidence to this Tribunal. Consequent upon the first examination, Mr Watson-Munro produced his report, dated 11 March 2020. Consequent upon both the first and second examination, Mr Watson-Munro gave evidence to this Tribunal in the instant matter.
Mr Watson-Munro summarised the Applicant’s relationship history as follows:
“Mr Mejias Gallardo stated his first marriage ended after about 20 months. There were ongong issues in the relationship referable to his mother-in-law and attendant to this, escalating arguments in the home. He stated that the separation was difficult in terms of his strong desire to have regular access to his son, which was thwarted. He reported that there is no history of domestic violence.
His next relationship commenced when he was 25. His de facto partner was 35 years of age and they share an eight-year-old son and a daughter who is nine. He stated that they lived together but ultimately separated in the context of her alleged insecurity referable to the age difference. He alleged as an example of his partner’s insecurity that she threatened him with a knife and on one occasion he awakened to find her threatening him. His problems continued post-separation in terms of him enjoying regular access to his children and it was in this context that he then offended and was convicted of assaulting his partner and was sentenced to a term of imprisonment involving three months’ full time custody and seven months on periodic detention. His periodic detention was completed without incident. Mr Mejias Gallardo stated that he had no contact with his children since that time.
Following the breakdown of that relationship, Mr Mejias Gallardo established a new relationship with a woman who is 12 months younger than him. They were together for about a year. I not that there were assault charges against Mr Mejias Gallardo in 2009 in the context of this relationship. His partner at that time had a child from a previous relationship.
He described a further relationship which continued between 2013 and 2018 with a woman who was three years younger than him. That former partner remains supportive of him, with him stating that they essentially drifted apart.
Mr Mejias Gallardo stated that his current relationship with a 37-year-old woman has been ongoing for three years. He reported that they share no children.
It would hence appear that Mr Mejias Gallardo has been in a number of serious relationships since his early adult life. I note that his forensic history relates to episodes of domestic violence referrable to the second and third of these. Beyond the perimeters of these relationships, there has been no suggestion of violence within the broader community. Mr Mejias Gallardo nonetheless acknowledges the seriousness of his past behaviour and in this regard appears to have reflected upon his situation and matured.[43]
[43] Ibid, Item 8, pages 30 and 31.

In terms of a concluded opinion, Mr Watson-Munro said these things:
“Opinion:
Mr Mejias Gallardo presents as a co-operative though severely depressed and anxious man who is currently involved in an Administrative Appeals Tribunal hearing subsequent to a decision to deport him on the basis of his prior forensic history…his last episode of domestic violence occurred in 2009 and although his history between 2005 and 2009 is troubling, it is clear that he has matured and gained greater control over his behaviour since that time…
His prior history of violence has been confined to a domestic setting and whilst this is serious, it is encouraging that it has not at any time extended beyond this context. It is equally encouraging that he has been in several relationships for nearly a decade without incident. In passing, this too, reflects maturation and better control over his impulses. Further evidence of his primarily pro-social attitude is noted through his employment history, the positive relationship he has with his boss and his aspirations for a continuing life in Australia characterised by an absence of offending.
I note a troubling and somewhat unstable developmental history…he acknowledges that there were considerable difficulties in terms of his relationship history during his early adult life. Underpinning this, he reported high levels of anxiety in the past, which coupled to his immaturity and a lack of extended familial support in Australia, no doubt impacted upon his judgment and capacity to manage his impulses.
On a more positive note, he has matured, he has a job available to him should he be released to the community, with him intending to continue in a well bonded and loving relationship with his current partner. There was nothing from my assessment to indicate any major psychiatric disturbance and notwithstanding his prior forensic history, Mr Mejias Gallardo cannot be described as being psychopathic in orientation. He has insight to his offending in the past and significantly accepts his culpability in this regard. At examination he was co-operative and respectful in terms of my questioning of him.
I believe that Mr Mejias Gallardo would benefit from some professional assistance if released to the community…He expressed a willingness to undertake treatment, which should involve both supportive and motivational psychotherapy, in additional Cognitive Behaviour Therapy, focussed upon systemic desensitisation for his anxiety. I believe his risk of reoffending is low and certainly the structure which employment and his relationship provides, in conjunction with support through treatment, will further enhance the likelihood of his prognosis remaining on a positive trajectory.”[44]
[my emphasis and underlining]
[44] Ibid, pages 34 and 35.
Evidence in Chief of Mr Watson-Munro
In his evidence in chief, Mr Watson-Munro was taken to his abovementioned report, dated 11 March 2020. He largely re-confirmed the contents of that report.
Cross-examination of Mr Watson-Munro
In response to a question about his assessment of the Applicant’s risk of re-offending as low, the following transpired between Mr Watson-Munro and the Respondent’s representative:
“MR HILLIARD: You assess Mr Mejias Gallardo’s chances of reoffending at low, is that correct?
MR WATSON-MUNRO: Yes.
MR HILLIARD: And in relation to that you seem to have placed weight on him being – having been in stable relationships since his last domestic violence (indistinct), that’s correct, isn’t it?
MR WATSON-MUNRO: That amongst other issues and the fact that there’s been no reoffending for some time. (Indistinct) years ago I wouldn’t have been as optimistic as I am now in terms of this issue because there was a history of driving offences and so on and domestic violence, of course. But he seems to be in a stable relationship now. He has stable employment. He’s expressed remorse for his behaviour and he appears to have matured.”[45]
[45] Transcript, Day Two, page 46, lines 1 to 11.
Mr Watson-Munro was cross-examined about factors in earlier stages of the Applicant’s life that may have contributed to his offending between 2005 and 2009. The following exchange transpired:
“MR HILLIARD: Can you turn to that please?
MR WATSON-MUNRO: Yes, paragraph 3, point 3, yes?
MR HILLIARD: Point 3, yes?
MR WATSON-MUNRO: I note a troubling, somewhat unstable developmental history. Is that the one you’re referring to?
MR HILLIARD: That’s the point, yes, thank you?
MR WATSON-MUNRO: Yes, thank you.
MR HILLIARD: That one and the subsequent, point 4?
MR WATSON-MUNRO: Yes.
MR HILLIARD: You refer there to the role that his unstable history, anxiety and lack of family – extended family support – how those factors contributed to his offending. That’s correct isn’t it?
MR WATSON-MUNRO: Yes, they’re relevant only to his general clinical and developmental history. But behaviour is a (indistinct) of those issues. Instability in childhood, moving from mainland South America to Easter Island, relationship difficulties in his early adult life, and so on. All contributed, in my view, to his past offending. Against a backdrop of depression and anxiety and so.
MR HILLIARD: Yes. But those are static factors, aren’t they? They continue to be present in his ongoing chances of reoffending, don’t they?
MR WATSON-MUNRO: Well, my understanding is he’s in a stable relationship now. He’s substance free and, of course, with the effluxion of time he has matured. So, those dynamic issues have impacted on those factors as you’ve described them – so he’s learnt from his mistakes, he’s moved forward it would seem. But, clearly there’s further work to do. And that’s why I’m recommending treatment.”[46]
[46] Ibid, page 47, lines 8 to 32.
Mr Watson-Munro was cross-examined about the possibility of the Applicant having a higher risk of re-offending if his current relationship were to end. The following transpired:
“MR HILLIARD: With respect to the stability of the applicant’s current relationship?
MR WATSON-MUNRO: Yes.
MR HILLIARD: Is it the case that, were that relationship to end, he would have a higher risk of reoffending?
MR WATSON-MUNRO: Well, it would be the stabilising –it’s the stabilising event in his life ‑ but it doesn’t follow that there would be a massive (indistinct) of his problems. He’s matured and of course that’s another reason why I’m suggesting external supports beyond that relationship. So to bear the stresses in his life, he has a professional person to talk them through with. But in an ideal world, a stable relationship can only be of benefit to him.
MR HILLIARD: I’m very sorry, I missed the last – the second?
MR WATSON-MUNRO: I said in an ideal world, a stable relationship would be of benefit to him. I said in summary that if that relationship fails, it wouldn’t necessarily follow that he would completely regress back to past behaviour that’s been troubling. In other words, he’s matured. There are other external support factors in his life, including the availability of employment. And insight that he has developed. And of course he recognises, I think very clearly in the context of his detention, that any lapses from the straight and narrow will lead to him being returned to detention and possibly sent away from Australia. And that’s a galvanising motivating factor, in my view.”[47]
[My underlining]
[47] Ibid, page 47, lines 35 to 47 and page 48, lines 1 to 7.
There was a further question in cross-examination regarding Mr Watson-Munro’s assessment that the Applicant has a low risk of re-offending. The following transpired:
“MR HILLIARD: Is a further contributor to your assessment that he has a low risk of reoffending?
MR WATSON-MUNRO: Yes. Insight is very important. As is remorse. But of course one can always get better insight through treatment and discussion of problems. He has some insight, probably deeper insight, and skills to cope with stress will occur with treatment.”[48]
[48] Ibid, page 48, lines 23 to 27.
Other witnesses
The Applicant’s sister, Ms Lorena Majias, has provided a statement[49] and also gave oral evidence at the hearing. Her oral evidence was not the subject of cross-examination. Her statement records the following:
“14. I believe that Hugo’s [the Applicant] behaviour in the past was a consequence of the difficult childhood that we both had. I also think that Hugo has realised that now, and because he now understands himself so much better I believe he has changed his life completely. For the past ten years or more he has not committed any violence and his relationships with women have become respectful and caring. I really don’t think Hugo would ever be a threat to anyone in the future.”[50]
[49] Exhibit A1, Applicant’s Tender Documents, Item 5, pages 18 to 19.
[50] Ibid, page 19.
Ms Valentina Diaz is an adult niece of the Applicant. She was born in Australia on 28 June 2000 and is currently studying Speech Pathology at the University of Sydney. She clearly has a close relationship with the Applicant, who in his evidence confirmed that up to the point where he was taken into immigration detention (at the end of January 2020), Ms Diaz had lived with him for a year:
“MR HILLIARD: … Valentina, lived with you before you went into Immigration Detention?
THE APPLICANT: That’s correct. She was pretty much the whole year with me, yes.
MR HILLIARD: Sorry, you just broke up then. Did you say she was living with you for a whole year?
APPLICANT: She was - yes, she was living with me since the start on January, yes.”[51]
[51] Transcript, 14 April 2020, page 23, lines 41 to 47.
Ms Diaz has provided a statement[52] and also gave oral evidence at the hearing. Her oral evidence was not the subject of cross-examination. Her statement records the following:
“5. I have grown up in Australia and as a woman of my generation I have no tolerance of domestic violence in any form. I am disappointed that the Uncle I have always loved so much had faults of this type. However I also know that he is not that person any more. As I have gotten older I have seen him with other women, particularly with Paola and Jadwiga and I have become very close to both of them. I can say from my own knowledge that his relationships with them have been totally different from the way he behaved over a decade ago.”[53]
[52] Exhibit A1, Applicant’s Tender Documents, Item 7, page 26.
[53] Ibid.
The Applicant’s current partner, Ms Jadwiga Panek, has provided a statement[54] and also gave oral evidence at the hearing. Her oral evidence was the subject of cross-examination. Her statement records the following:
“1. I first met Hugo Mejias in about May 2017. We started living together as a couple a few months later. We have been together since then and intend the relationship to be a lasting one.
2. I am aware that Hugo was convicted in 2006 and again in 2009 for assault in a domestic violence situation. In 2009 he went to prison for full time and nine months part time.
3. In the time I have known Hugo he has never been violent towards me or anyone else. Although we sometimes have disagreements as any couple does, we solve them without any violence or abusive behaviour.
4. I do not condone or excuse what Hugo did in the past. I can only say that he must have been a very different person, probably a lot less mature than he is now.”[55]
[54] Ibid, Item 6, page 25.
[55] Ibid.
During cross-examination, the Respondent’s representative asked Ms Panek about certain occasions when she had been denied entry into the Villawood Detention Centre because she has allegedly returned positive traces of drugs on her person. This is what transpired:
“MR HILLIARD: Okay, thank you. Since Mr Mejias Gallardo has been in detention you’ve been to visit him a number of times, haven’t you?
MS PANEK: That’s true. Yes, I was visiting him several times.
MR HILLIARD: Several times, yes. On three occasions you’ve been denied entry to visit him, haven’t you?
MS PANEK: Yes, I have been denied and I wrote a complaint about it.
MR HILLIARD: I’m really sorry, could you repeat that, I couldn’t hear that?
MS PANEK: Yes, I was denied and I even wrote a complaint about this.
MR HILLIARD: And you were denied because you returned positive traces of drugs, didn’t you - weren’t you?
MS PANEK: Yes. However I don’t do any drugs. I don’t smoke marijuana, that’s why I wrote a compliant to them because for me it was really surprising. I was asking that I’m sure about myself, I was asking he taken from any different place, like from saliva, for example, because I know that I don’t take any drugs. However, unfortunately, I use public transport and I’ve noticed that there was even the situation that when I was coming by train I was going to the toilet, I was changing my clothes and then everything was okay.
MR HILLIARD: Okay. So you can’t explain why you returned positive traces of drugs?
MS PANEK: As I said, I was asking even then I wanted to talk to the manager and they told me that this situation happens, especially when you are using public transport, because you are not able to say who was sitting before you and unfortunately I don’t use car so I use, all the time, public transport. I have never had any stories with any drugs, any criminal - I don’t know how to say it, stories or whatever.”[56]
[56] Transcript, 14 April 2020, page 29, lines 34 to 47, and page 30, lines 1 to 13.
To my mind, this cross-examination went largely nowhere. To the extent it was intended to perhaps create an inference that the Applicant and Ms Panek are illicit drug users, no such inference can be safely drawn. In terms of any suggestion or inference that the Applicant remains affected by illicit drug use, the correct and safe position is to follow the evidence of Mr Watson-Munro, who noted the following:
“I note by way of example that he has been in stable employment with the one business for eight years and notwithstanding the drink-drive matters, he is not prone to excessive alcohol intake. Equally so, there is no history of illicit substance use…[57]
Despite having two drink-drive matters, Mr Mejias Gallardo claims that he is a social drinker only. He denies ever experiencing alcoholic blackouts. He reported that he does not use illicit drugs and is on no medication.”[58]
[My underlining]
[57] Exhibit A1, Applicant’s Tender Documents, Item 7, page 28.
[58] Ibid, page 31.
Andrew Moss is an Australian citizen and works in information technology. He lives in the same unit complex as the Applicant whom he has known over three years. Mr Moss has provided a statement[59] and gave oral evidence at the hearing. His oral evidence was not the subject of cross-examination. His statement contains the following passage:
“In the time I have known Hugo I have read his entire police record. My personal opinion of the situation is that Mr Mejias has not re-offended and has clearly demonstrated through current and past relationships that he has learnt from the mistakes of his past, and now looks to move forward with a positive life in Australia.
I have been shown a copy of Hugo’s Police Record and I am giving this reference in full knowledge of his convictions.”[60]
[59] Exhibit A4, Statement of Andrew Moss, made on 7 April 2020.
[60] Ibid.
While none of Ms Mejias, Ms Diaz, Ms Panek or Mr Moss are experts in the field of assessing a given applicant’s risk of re-offending, it is clear that they are one mind when they say (1) they are aware of the totality of the Applicant’s prior offending, and (2) his pattern of behaviour and consequent offending evident between 2005-2009 has not been a feature of his life since at least 2010. Taken in total, their evidence is supportive of two things: (1) the reality that this Applicant has experienced a genuine deterrent effect from the custodial sentences imposed on him in December 2009, and (2) Mr Watson-Munro’s expert findings along these lines.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Having regard to the nature and level of seriousness of the Applicant’s domestic violence offending that occurred between 2005-2009, were it to be repeated, there can be little or no argument against the proposition that the nature of the harm to be suffered by another domestic spouse on its receiving end, or, indeed, a non-spousal member of the Australian community on its receiving end, would be, at the very least, palpable and significant.
The Applicant does not have an overly impressive drink driving history. However, it is limited to two offences, four years apart and both of those offences are for low-range drink driving. I have noted his traffic history which likewise is not impressive but nevertheless does not contain an entry after 2015.[61] That said, it cannot be denied were he to reoffend while in control of a motor vehicle as he has to date, be it in the realm of drink driving and/or through the commission of traffic offences, significant harm could be occasioned to the Australian community.
[61] Exhibit R1, Respondent’s Tender Bundle, TB4, pages 110 to 114.
Consequently, I find that, were he to re-offend, the resulting harm would be serious and could conceivably involve the occasioning of palpable and serious physical and mental harm.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant has acknowledged (1) that he has offended in a quite serious way, and (2) that he bears sole responsibility for the regrettable and serious effects of his unlawful conduct.
For the purposes of this decision, I am prepared to find that in accordance with the views of Mr Watson-Munro, there are no discernible psychopathic elements to the Applicant’s overall psychological symptomatology. There can be no argument that he has not experienced a consistently stable life in Australia since 2010. He has held down responsible and remunerative employment for almost the entirety of that period, and he has managed to successfully navigate his way through three relationships since 2010 without any incident and certainly no repeat of his earlier domestic violence behaviour.
Mr Watson-Munro has identified and confirmed that in his expert opinion, the Applicant has developed (1) a deep insight into his past offending and (2) an acceptance of responsibility and culpability for his prior conduct. I accept Mr Watson-Munro’s evidence that, to an extent, the Applicant’s ongoing low risk of recidivism may be augmented upon him obtaining external treatment. While that opinion is no doubt valid, it should be tempered against the reality that, save for the two low level drink driving offences four years apart in 2013 and 2017 and his traffic history, the Applicant has conducted himself in an otherwise unblemished way in the Australian community for virtually the entirety of the past decade.
One of the objectives of the Australian community’s sentencing process is to ensure that offenders experience a deterrent effect from a given sentence imposed upon them. The undeniable reality, endorsed and proven by the passage of almost a decade, is that this Applicant has (1) demonstrably experienced a deterrent effect from sentences previously imposed upon him, and (2) even without the external advice and assistance referred to by Mr Watson-Munro, has managed to refrain from any further domestic violence or other violent offending, in the Australian community, obviously and only by self-regulation.
This is not a case of an Applicant solely promoting his own low prospects of re-offending. Those prospects have been the subject of expert examination, deliberation and analysis. That expert opinion is augmented by the lay evidence of witnesses such as Ms Lorena Mejias, Ms Diaz, Ms Panek and Mr Moss. I will again quote Mr Watson-Munro, who puts it more eloquently and expertly than I:
“I believe his risk of reoffending is low and certainly the structure which employment and his relationship provides, in conjunction with support through treatment, will further enhance the likelihood of his prognosis remaining on a positive trajectory.”[62]
[62] Exhibit A1, Applicant’s Tender Documents, Item 8, page 35.

FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld FYBR, confirming Justice Perry’s reasons and approach to the expectations of the Australian Community.[82]
[82] See FYBR v Minister for Home Affairs [2019] FCAFC 185.
Thus, the Full Court’s decision, along with the existing authority of Afu establishes that:
(a)the “expectations of the Australian community” cannot be measured or determined as in the case of a provable fact. It is an assessment of community values made on behalf of that community;[83]
(b)it is not for the Tribunal to determine for itself what such “expectations” are by reference to the Applicant’s circumstances or evidence about those expectations;[84]
(c)the Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks are the “expectations of the Australian community”, and the Tribunal should have due regard of those statements, if made;[85]
(d)in assessing the weight attributable to this Primary Consideration C, decision makers can have regard to the principles in paragraph 6.3 of the Direction, in particular, sub-paragraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision maker.[86]
[83] Afu at paragraph [85].
[84] FYBR at paragraph [42].
[85] FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[86] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).
Analysis – Allocation of Weight to this Primary Consideration C
The Applicant does have a demonstrated history of participation in the Australian workforce. He has described it thus:
“From 2009 to present – Floor Sander – Anton’s Floors…”[87]
[87] Exhibit G1, s501G Documents, G14, page 97.
The abovementioned employer of the Applicant has provided two letters which appear in the material. The former is dated 29 September 2017 and confirms that this employer has employed the Applicant since 2009 as a floor sander. His initial employment commenced as a casual employee, but he has now moved on to operate as a sub-contractor. This former letter (dating from 2017) further says:
“In the time that Hugo has worked for our company his knowledge and expertise has grown quite significantly. We are able to leave him on site either alone or in charge of a team without hesitation.
He is an important part of our company and has proven time and time again to be a hardworking and trustworthy person who strives to do the best job possible. He has great customer service skills that continue to keep our customers and his fellow workers happy.
At no point have we had a complaint about Hugo and to lose him from our company would be devastating. He is a person who is highly skilled and we value that and would hate to see this go to waste. This is something that you do not see too often these days.
He is a team player and his co-workers can vouch to this.
…”[88]
[88] Ibid, G21, page 131.
In the latter correspondence from the employer (dating from April 2019), the employer says these things:
“I…am pleased to provide this letter to certify that Mr Hugo Mejias Gallardo has been employed by Antons Floors for the past ten years as a floor sander.
He began his journey at our company as an employee and has moved on as a sub-contractor.
In the time that he has worked for this company his knowledge and expertise has grown quite significantly. He possesses the ability to work both independently without supervision as well as a team player. This along with his trustworthiness has allowed our company to leave him on jobsites without supervision and has proven himself time and time again.
He is a very important part of our company and it would be devastating to lose him. He is a highly skilled tradesman that also has a great passion for life.
Over the past 5 years this company has grown and finding skilled tradesman like Hugo Mejias can be very difficult as his skills takes many years to define.”[89]
[89] Ibid, page 132.
While he does not actually list contributions to Australian cultural and community life, the material is replete with multiple notices of assessment for years of income issued by the Australian Taxation Office to the Applicant. The Applicant has clearly paid taxes in this country via his remunerative employment as a floor sander for at least the last 10 years, with the same employer.
I have had regard to nature and totality of the Applicant’s unlawful conduct during the period 2005 to 2009. I have also had regard to the moderate extent of his criminal history. At the time of his offending between 2005 and 2009 he could, on one view, be found to have breached the expectations of the Australian community. As against that, the passage of time demonstrate to any reasonable minded member of the Australian community in the ensuing decade, the Applicant has experienced the intended deterrent effect of the custodial sentence imposed upon him in 2009. Further, the passage of time also proves that, to the best extent he can, the Applicant has successfully (and without any offending incident) negotiated his way through at least three other domestic relationships since 2009/2010. His current domestic relationship seems vibrant and has been running for three years.
In ascertaining the weight attributable to this Primary Consideration C, I take into account the following factors and/or findings:
(i)the significant level of the Applicant’s positive contributions to the Australian community via his employment history;[90]
(ii)the Applicant has lived in Australian community for approximately 18 years (up to his recent placement into immigration detention);[91]
(iii)the removal of the Applicant may have an adverse impact on the relevant five minor children and his domestic spouse of three years in Australia;[92]
(iv)the serious nature of the Applicant’s offending to date upon two former domestic spouses;
(v)the nature of the totality of his conduct in this country, involving a phase of offending limited to a defined period from 2005 to 2009, and further limited to the exclusive realm of domestic violence offending;
(vi)the absence of the commission of any further domestic violence (or other violent) offending by this Applicant for the best part of the last decade, indicating successful deterrence from sentences previously imposed upon him;
(vii)the current, independent and expert evidence of Mr Tim Watson-Munro, attesting to: (1) the Applicant’s level of insight into his offending, (2) his acceptance of culpability for his previous offending, (3) the support structure afforded to him via the stable and lengthy natures of both his employment and personal relationship, and, ultimately, (4) his low risk of re-offending;
(viii)my assessment of the quite significant risk of substantial and palpable harm to the Australian community were he to re-offend;
(ix)my finding of a genuinely low likelihood that he will engage in any further serious conduct if returned to the Australian community; and
(x)I do not consider there is an unacceptable risk that this Applicant will again breach the trust the Australian community placed in him to obey Australian laws while in Australia.
[90] The Direction, paragraph 6.3(7).
[91] The Direction, paragraph 6.3(5).
[92] Ibid, paragraph 6.3(7).
I am mindful of the deemed community expectation contained in the observations of their Honours Charlesworth and Stewart in FYBR (Full Court)[93]:
“Paragraph 11.3 contains a statement of the government’s views as to the expectations of the Australian community ,which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[94] It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations.[95]
However, the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[96] It is necessary for the decision-maker to assess the applicant’s circumstances in order to reach an evaluative assessment of “appropriateness”.”[97]
[my underlining]
[93] FYBR v Minister for Home Affairs [2019] FCAFC 185.
[94] At paragraph [66] (per Charlesworth J) and at paragraph [91] (per Stewart J).
[95] Ibid, at paragraph [67] (per Charlesworth J) and paragraph [104] (per Stewart J).
[96] Ibid, at paragraph [75] (per Charlesworth J) and paragraph [101] (per Stewart J).
[97] Ibid, at paragraph [97] (per Stewart J).
I have had regard to principle 6.3(3) of the Direction and appreciate that non-citizens convicted of a serious crime, including a violent crime(s) against women, should generally expect to be denied the privilege of staying in Australia. However, the factors I have identified at paragraph [160] (i)-(ix) (inclusive), which factors are, in my respectful view, properly supported by the evidence, militate against a finding that this case falls within the category of cases giving rise to a “general expectation” that the subject visa should be cancelled.
Conclusion: Primary Consideration C
I therefore find that while the Australian community might consider that this Applicant, via his offending, has, to an extent, breached the trust they have placed in him to obey Australian laws while in Australia, the Australian community would not generally expect this Tribunal to exercise its discretion to cancel the Applicant’s visa. I accordingly find that this Primary Consideration C, in the relatively unique circumstances of this case, is of neutral weight on the question of cancellation of the subject visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 10 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant has not claimed to fear harm if returned to Chile. None of the evidence suggests a risk of harm in those circumstances. The abovementioned report of Mr Watson-Munro contains this reference:
“…He is highly anxious regarding the future, stating that he fears for his safety in Chile. In support of this, he described ongoing human rights abuses, which have occurred in his country of origin.”[98]
[98] Exhibit A1, Applicant’s Tender Documents, Item 8, page 31.
Out of an abundance of caution, I raised with the Applicant’s representative whether this passage from Mr Watson-Munro’s report in any way serves to engage the ambit of this Other Consideration (a). The following transpired at the hearing:
“SENIOR MEMBER: Does that in any way attract the operation of Other Consideration A?
MR JONES:[99] Well, Senior Member, I don’t want to try and put an untenable argument that Chile is a situation - a country in a situation where Mr Mejias would face some sort of danger amounting to something that might give rise to protection obligations.”[100]
[99] Mr Michael Jones, Director, Parish Patience, legal representative of the Applicant.
[100] Transcript, 15 April 2020, page 77, lines 33 to 39.
It should also be noted that at paragraph [39] of the Applicant’s SFIC, he confirms that he “has not at this time applied for a protection visa.”[101] Given that the Applicant does not contend or raise any claims to fear harm upon a return to Chile, this Other Consideration (a) is not relevant to the determination of this application.
[101] Exhibit A2, Applicant’s SFIC, page 6.
(b) Strength, nature and duration of ties
There are the following limited concessions made by the Respondent:
“47. There is limited medical evidence to indicate the nature and extent of the applicant’s sister’s psychological issues… However, the Minister accepts that removal of the applicant would have an emotional impact upon the applicant’s family, particularly his sister…
48. The Minister also accepts that removal would have an emotional impact on the applicant’s girlfriend, Ms Panek...”[102]
[102] Exhibit R2, Respondent’s SFIC, page 12.
Ultimately, the Respondent contends that: “[o]verall, the Minister submits that insofar as this consideration weighs in favour of the applicant, it does not outweigh the protection of the Australian community or its expectations.”[103]
[103] Ibid, page 13.
The Applicant was born on 10 May 1982. He came to Australia in June 2000. He has spent the majority of his life in Australia. His offending history commenced approximately five and a half years after his arrival in Australia. The operative effect of paragraph 10.2(1)(a)(i) of the Direction, means that less weight should be given to this Other Consideration in those circumstances.
However, paragraph 10.2(1)(a)(ii) affords the allocation of a greater level of weight to this Other Consideration taking into account the time the Applicant has spent positively contributing to the Australian community via his continuous and valued participation in remunerative employment in the floor sanding trade. The Applicant’s offending in this country is not the predominant feature of his time in Australia.
While the Applicant’s history is demonstrative of a certain phase of offending, that offending saw him removed from the Australian community for approximately six months of the 18 years he has spent here. The two low-range drink driving convictions (four years apart) and traffic offences aside, it is surely beyond question that the Applicant has spent the best part of the last decade in this country positively contributing to the Australian community. This can be noted in his continued and valued employment, and in his three personal relationships post-2010. Accordingly, an appreciable measure of weight in favour of non-cancellation is attributable to this paragraph 10.2(1)(a)(ii) of Other Consideration (b).
An additional measure of weight in favour of the Applicant pursuant to this Other Consideration (b) can be found in paragraph 10.2(b). In Australia, in addition to his three biological children, the Applicant has a sister, four nieces/nephews and a de facto spouse with whom he has conducted a relationship for the last three years. I have earlier referred to the Applicant’s four nieces/nephews (i.e. the children of Ms Lorena Mejias, the Applicant’s sister). Child A and Child S are the infant nephews of the Applicant. Valentina and her brother Gonzalo are, respectively, his adult niece (as mentioned earlier) and his adult nephew.
The Applicant’s sister, Ms Lorena Mejias, says:
“12. The thought of losing my brother is very painful for me, more than it would be for ordinary brothers and sisters. I have recently separated from my husband and once again the person closest to me and able to help me emotionally has been my little brother Hugo. We had planned that we would all move into together somewhere and form a big family.
13. Because of what happened to me in Chile…. I have had psychological problems all my life. In Australia I have been treated with medication and I regularly see a psychologist, but the main support I have had all through my life has been Hugo. I don’t know how I would survive without him.”[104]
[104] Exhibit A1, Applicant’s Tender Documents, Item 5, page 19.
Ms Lorena Mejias also cites psychological evidence from a psychotherapist, which says the following:
“…At the moment of the consultation client presented signs related to anxiety and a sense of isolation as a result of a distressing family issues and personal history…I was wondering if you can facilitate for Ms Lorena to stay close to her brother as he is the only family and emotional support for the her…”[105]
[error in original]
[105] Ibid, Item 5(a), page 20.
As mentioned earlier, Ms Lorena Mejias was also called to provide oral evidence at the hearing. Her evidence was not tested in cross-examination.[106]
[106] Transcript, 14 April 2020, page 26, line 45.
As also mentioned earlier, the Applicant’s adult niece, Ms Valentina Diaz, also gave oral evidence at the hearing. In her written statement, she said:
“6. Another thing I want to say is that I know how my mother would suffer if Hugo is not allowed to stay with us. She has told me about her life in Chile and what happened to her, and how Hugo was the only person who she could turn to.”[107]
[107] Exhibit A1, Applicant’s Tender Documents, Item 7, page 26.
In her evidence-in-chief, Ms Diaz adopted her written statement tendered in evidence.[108] Her evidence was not tested in cross-examination.[109]
[108] Transcript, 14 April 2020, page 28, lines 11 to 13.
[109] Ibid, line 18.
In her written statement, Ms Panek deposes to the strength and nature of the ties between the Applicant, his sister and her four children. Ms Panek said:
“5. In the time I have been living with Hugo I have developed very good relationships with his family, especially his sister Lorena and her four children. I am aware that there is a very close and special relationship between Hugo and Lorena because of what they experienced in Chile. She was like a second mother to him. She told me about the abuse she suffered in Chile and how important her relationship with Hugo is to her psychological health.
6. When I see Hugo and his family I can see that they all have a very close and loving relationship. I think they would all be hurt very badly if he had to leave Australia, especially Lorena.”[110]
[110] Exhibit A1, Applicant’s Tender Documents, Item 6, page 25.
I appreciate that paragraph 10.2(1)(b) relates to people connected to the Applicant who have an indefinite right to remain in Australia. I presume, for the purposes of these reasons, that each of Ms Lorena Mejias and her four children are either Australian citizens, permanent residents and/or people who have an indefinite right to remain in Australia.
Strictly speaking, this may not be the case for Ms Panek. In her statement, she says:
“7. I am from Poland and I am studying in Australia on a student visa until 2023. If Hugo is not allowed to stay in Australia, I would have to choose between my studies, in which I have already invested a lot, and going with him to a country where I do not speak the language or know the culture. Hugo does not speak Polish and I don’t think there would be any possibility of him going there to be with me.”[111]
[111] Ibid.
As also mentioned earlier, Ms Panek was cross-examined, but the extent of that cross-examination was limited to an issue around why she had been refused entry into the detention centre to see the Applicant. Her evidence in relation to whatever connection she may have with the Applicant (to the extent that any such consideration can be taken into account pursuant to this paragraph 10.2(1)(b)) was not tested in cross-examination.
I accept the evidence convincingly demonstrates the strength, nature and duration of the Applicant’s family/social links with members of his immediate and extended family in Australia. Accordingly, I find that an appreciable measure of weight is attributable to this Other Consideration (b) pursuant to paragraph 10.2(1)(b) of the Direction.
Accordingly, having regard to the totality of evidence relevant to this Other Consideration (b), I am of the view that it weighs appreciably in favour of not exercising the discretion to cancel the subject visa.
(c) Impact on Australian business interests
I have earlier referred to the two items of correspondence from the entity that has employed the Applicant for the last ten years. While this evidence is impressive, it does not, to my mind, meet the threshold stipulated in this Other Consideration (c) such that cancellation of the Applicant’s visa would significantly compromise the delivery of a major project or delivery of an important service in Australia. I concur with the Respondent’s contention that “very limited weight” should be afforded to this Other Consideration (c) in favour of not exercising the discretion to cancel the subject visa.
(d) Impact on victims

The Respondent has not called any evidence relating to the impact that the Applicant’s continued presence in Australia would have on any of his victims. No doubt, the victims of his domestic violence offending in 2005 and 2009, if called, may have had something to say about the impact of the Applicant’s continued presence in Australia upon them.
However, in the absence of such evidence, be it in the form of a victim impact statement or otherwise, it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact that the Applicant’s continued presence in Australia would have on that or any other of his victims. Accordingly, I cannot find that this factor attracts any weight either in favour of, or against, the cancellation of the Applicant’s visa and is thus neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 10.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
In his Personal Circumstances Form, the Applicant notes that in Chile, he has his mother, father and two sisters. The two sisters are 14 years older than him.
In his written submissions, the Applicant contends that:
“Extent of impediments if removed
44. Mr Mejias is effectively estranged from his parents and older sisters and has no close family ties in Chile. The current political situation in Chile is unstable and marked by violent police responses to street demonstrations.”[112]
And further:
“CONCERNS ABOUT RETURNING TO CHILE
The applicant has great concerns if he has to return to Chile in the foreseeable future, he has not have any capacity to support him, to the contrary, he and his sister are supporting their family in Chile, his parents are divorced and not working and his twin sister had facing a lot of troubles of addiction. In the last 17 years in Australia, half his life has been living in the Australian society therefore he lost all type of contact with the Chilean’s social life, laborer and skills.”[113]
[errors in original]
And further (from a document dating from 2017):
“…
With the country of Chile, which I love and respect, there is now a space of almost 17 years, during which time I have lost all contacts, working abilities and experience in Chile as I arrived in Australia just after I finished year 12 basic education. In Chile, I don’t have any work nor the finances to establish myself again, my parents and sisters partly depend on my help and the help of my sister Lorena. To return to Chile would be to annihilate me in life as I do not have anything that I could say that I could start a new life with.”[114]
[112] Exhibit A2, Applicant’s SFIC, page 7.
[113] Exhibit G1, s501G Documents, G15, page 103.
[114] Ibid, G17, page 118.
In cross-examination, the Applicant was asked about his ties with his family in Chile. The following transpired between him and the Respondent’s representative:
“MR HILLIARD: Now, at the moment your parents both still live in Chile, don’t they?
APPLICANT: Yes, they’re both there at the moment, yes.
MR HILLIARD: You continue to support them financially, don’t you?
APPLICANT: That’s correct. Unfortunately because of my situation it’s been a bit of a hard time for them as well, because my sister is currently - with everything at the moment and because of the unfortunately virus around the world is getting very serious and not much work outside so, yes, we still try to support them from here, yes.
MR HILLIARD: And you have a close relationship with your mother, don’t you?
APPLICANT: With my mum, yes. With both of them pretty much always in contact by phone and video calls. We try to keep in touch all the time, yes.
MR HILLIARD: In Chile you finished high school, didn’t you? You obtained the equivalent of the HSC?
APPLICANT: I do my school, yes, I finished. I actually didn’t go to the end because of the - in some part when I was in school we had the opportunity to come to Australia.
MR HILLIARD: Okay. In 2011 and 2012 you returned to Chile voluntarily, didn’t you, with your then wife?
APPLICANT: 2011, yes, after I get married, yes.
MR HILLIARD: And you were there for about six months?
APPLICANT: That’s correct, five, six months, yes.”[115]
[115] Transcript, 14 April 2020, page 24, lines 1 to 25.
The Applicant is a apparently healthy man of 37 years of age. In response to question in his “Personal Circumstances Form” about “Do you have any diagnosed medical or psychological conditions?” the Applicant ticked the “No” box.[116] It is reasonable to find that, while the level of medical care and governmental social support in Chile may perhaps not be at the same level as that of Australia, the Applicant will have access to those things in the context of what is generally available to other citizens of Chile.[117] Thus, the Applicant’s age and state of health[118] are not factors that attract any measure of weight to this Other Consideration (e).
[116] Exhibit G1, s501G Documents, G14, page 98.
[117] Section 10.5(1)(c) of the Direction.
[118] Section 10.5(1)(a) of the Direction.
The Applicant is fluent in English and Spanish. He resided in Chile for the first 17 years of his life and has returned to Chile for a cumulatively extended period of about 1-2 years since 2000. He also has a significant level of experience in the floor sanding trade, and although he may experience some initial difficulty in re-establishing himself in Chile, this would only present as a short-term hardship and would not preclude his successful re-settlement there. I do not find that there are significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in Chile.[119]
[119] Section 10.5(1)(b) of the Direction.
Having regard to the totality of the evidence, I am thus of the view that this Other Consideration (e) is of limited weight in favour of not exercising the discretion to cancel the subject visa.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
·international non-refoulement obligations: not relevant;
·strength nature and duration of ties: appreciable weight in favour of not exercising the discretion to cancel the subject visa;
·impact on Australian business interests: very limited weight in favour of not exercising the discretion to cancel the subject visa;
·impact on victims: neutral; and
·extent of impediments if removed: limited weight in favour of not exercising the discretion to cancel the subject visa.
IS THE TRIBUNAL’S DISCRETION NOT TO EXERCISE THE POWER TO CANCEL THE SUBJECT VISA ENGAGED?
Section 501A of the Act provides that this Tribunal can make a decision not to exercise the power to cancel the Applicant’s visa, whether or not (1) he satisfies this Tribunal that he passes the character test, or, (2) this Tribunal reasonably suspects that he does not pass the character test. As I have noted and found above, the Applicant does not pass the character test. Having regard to the Direction and to the totality of the evidence before me, I am of the view that this Tribunal should, pursuant to s501A(d) of the Act, not exercise the power conferred by s501(2) to cancel the Applicant’s visa.
In reaching this conclusion to not exercise the subject power, I have had regard to the considerations referred to in the Direction. With regard to the weight I have allocated to each of these Primary and Other Considerations, I find as follows:
·Primary Consideration A weighs moderately, but not determinatively, in favour of exercising the power to cancel the subject visa;
·Primary Consideration B weighs moderately, but not determinatively, in favour of not exercising the power to cancel the subject visa;
·Primary Consideration C is of neutral weight;
·Other Considerations (a) and (d) are of either neutral weight or not relevant to this consideration;
·the combined weight of Primary Consideration B and Other Considerations (b), (c) and (e) determinatively weigh in favour of not exercising the power to cancel the subject visa;
·the combined weight of Primary Consideration B and Other Considerations (b), (c) and (e) outweigh the remaining weight attributable to Primary Consideration A, which favours exercise of the power to cancel the subject visa; and
·a holistic application of the considerations in the Direction to the evidence therefore militates in favour of this Tribunal not exercising the power to cancel the Applicant’s visa.
Consequently, I do not exercise the power conferred by subsection 501(2) of the Act to cancel the visa that has been previously granted to the Applicant.
DECISION
The decision under review is set aside and substituted such that this Tribunal does not exercise the power conferred by section 501(2) of the Migration Act 1958 (Cth) to cancel the Applicant’s visa.

I certify that the preceding 201 (two hundred and one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

..........................[sgd]..............................................
Associate
Dated: 23 April 2020

Dates of hearing: 14 and 15 April 2020

Advocate for the Applicant: Mr Michael Jones (Solicitor)

Solicitors for the Applicant: Parish Patience Lawyers

Advocate for the Respondent: Mr Tom Hilliard (Solicitor)

Solicitors for the Respondent: Sparke Helmore Lawyers
‘ANNEXURE A’ - EXHIBIT REGISTER
Mejias Gallardo & MICMSMA (2020/0684)

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents

(paged 1 to 407)

R

-

4 MAR 20

A1

Applicant’s Tender Bundle

(paged 1 to 42)

A

-

3 APR 20

R1

Respondent’s Tender Bundle

(paged 1 to 182)

R

-

30 MAR 20

A2

Applicant’s Statement of Facts, Issues and Contentions

A

13 MAR 20

13 MAR 20

R2

Respondent’s Statement of Facts, Issues and Contentions

R

30 MAR 20

30 MAR 20

A3

Applicant’s Reply

A

3 APR 20

3 APR 20

A4

Statement of Andrew Moss

A

7 APR 20

7 APR 20

[2020] AATA 960

23 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies

Natural Justice

Dates of hearing:	14 and 15 April 2020
Advocate for the Applicant:	Mr Michael Jones (Solicitor)
Solicitors for the Applicant:	Parish Patience Lawyers
Advocate for the Respondent:	Mr Tom Hilliard (Solicitor)
Solicitors for the Respondent:	Sparke Helmore Lawyers

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (paged 1 to 407)	R	-	4 MAR 20
A1	Applicant’s Tender Bundle (paged 1 to 42)	A	-	3 APR 20
R1	Respondent’s Tender Bundle (paged 1 to 182)	R	-	30 MAR 20
A2	Applicant’s Statement of Facts, Issues and Contentions	A	13 MAR 20	13 MAR 20
R2	Respondent’s Statement of Facts, Issues and Contentions	R	30 MAR 20	30 MAR 20
A3	Applicant’s Reply	A	3 APR 20	3 APR 20
A4	Statement of Andrew Moss	A	7 APR 20	7 APR 20