NRWQ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2022] AATA 2879

NRWQ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2879 (24 August 2022)
Division:GENERAL DIVISION
File Number: 2022/4663
Re:NRWQ
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Deputy President Britten-Jones
Date:24 August 2022
Place:Melbourne

The Tribunal affirms the decision under review.
.......................[SGD].................................................
Deputy President Britten-Jones
Catchwords
MIGRATION – refusal to grant visa on character grounds – whether discretion to refuse to grant a visa should be exercised – applicant committed serious family violence offences - primary considerations of family violence conduct, protection and expectations of the Australian community weigh in favour of refusal – best interests of minor children and links to Australian community weigh in favour of granting visa – decision under review affirmed.
Legislation
Migration Act 1958 (Cth)
Cases
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878
EPU19 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
FUD18 v Minister for Home Affairs [2021] FCAFC 132
FYBR v Minister for Home Affairs (2019) 272 FCR 454; [2019] FCAFC 185
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Splendido v Assistant Minister for Immigration and Border Protection [2019] FCAFC 132
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395; [2014] FCA 303
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673
WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736
XXBN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 74
Secondary Materials
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)
REASONS FOR DECISION
Deputy President Britten-Jones
24 August 2022

The applicant seeks review of a decision of the Minister’s delegate dated 23 May 2022 refusing on character grounds to grant the applicant a Safe Haven Enterprise (Temporary) Protection (Class XE) visa (visa), pursuant to s 501(1) of the Migration Act 1958 (Cth).[1]
[1] All references to legislation are to the Migration Act 1958 (Cth).
The applicant applied for the visa on 6 September 2017.
On 20 October 2020, the applicant was given a notice of intention to consider refusal which invited the applicant to comment on information held by the Department of Home Affairs. That information was said to indicate that the applicant may not pass the character test as defined in s 501(6)(d), namely that if allowed to remain in Australia there was a risk that the applicant would engage in criminal conduct. Refugee Legal responded on the applicant’s behalf on 12 February 2021. Further information regarding the possible visa refusal was given on 4 May 2021, 20 July 2021 and 6 September 2021. Refugee Legal provided a further submission in support of the application for the visa on 25 October 2021.
The LEGISLATIVE SCHEME
Section 501 deals with the refusal or cancellation of a visa on character grounds. Relevantly, it provides:
(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note:               Character test is defined by subsection (6)
…
(6)       For the purposes of this section, a person does not pass the character test if:
…
(d)In the event the person were allowed to enter or remain in Australia, there is a risk that the person would:
(i)     engage in criminal conduct in Australia
The Full Court of the Federal Court in Minister for Immigration and Border Protection v Sabharwal,[2] at [2] said that s 501(6)(d)(i) requires an evaluative judgment by the decision-maker as to whether the decision-maker is satisfied there is such ‘a risk’. If I am so satisfied, then the discretion is enlivened, and I may refuse to grant a visa having regard to Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 90).
[2] [2018] FCAFC 160 (Sabharwal) as cited by Perry J in EPU19 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536 at [175].
It follows that the legislative scheme provides for a two-step process. The first step is the evaluative judgment as to whether the applicant is of good character and in particular in this case whether there is a risk of further criminal conduct. The second step arises if I am not satisfied that the applicant is of good character in which case, I may exercise a discretion to refuse to grant the applicant a visa.
The applicant does not concede that he fails the character test and contends that the risk of him harming the community does not meet the required threshold.[3]
[3] See the Applicant’s Further Statement of Facts, Issues and Contentions dated 8 August 2022 at [4].
The first step involves a forward-looking process to evaluate the risk of a person engaging in the future in criminal conduct in Australia. In Minister for Immigration & Ethnic Affairs v Guo,[4] (Guo) Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ observed as follows:
The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability — high or low — of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.
[4] [1997] HCA 22; (1997) 191 CLR 559 at 574–575.
In Assistant Minister for Immigration and Border ProtectionvSplendido,[5] Mortimer J said:
[77] The bare recitation of what a person has done in the past, if used as a basis for a positive finding about what she or he may do in the future, is a reasoning process which is rejected by the judicial process in relation to fact-finding about legal responsibility for past events. More than the bare recitation of the past offending is required, and what is required for such evidence to be considered is strictly controlled by reference to the nature and circumstances of the offending, …
[78] The nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending.
[5] [2019] FCAFC 132 (Splendido).
Wheelahan J added that the evaluation of the risk of offending in the future must have an evident, intelligible and rational foundation.[6]
[6] Splendido at [131].
In FUD18 v Minister for Home Affairs,[7] at [68], the Court explained:
… The test in s 501(6)(d) is that “in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would” engage in certain types of conduct, including “engage in criminal conduct in Australia”, or “harass, molest, intimidate or stalk another person in Australia”, or “vilify a segment of the Australian community” et cetera. As can be seen, the word “risk” in the context of s 501(6)(d) clearly bears the first of the two meanings of “risk” referred to earlier; the possibility or probability of something occurring in the future. The risk is that the person would or might do one or more of the identified acts in s 501(6)(d) in the future.
[7] [2021] FCAFC 132.
As to the level of risk required to satisfy the statutory test, Kerr J said in Sabharwal at [84] that ‘a derisorily small possibility’ is not sufficient.[8] In that decision, Kerr J referred to the terms of the Explanatory Memorandum for the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) at paragraph 46 of Schedule 1, which states that the “intention” of s 501(6)(d)(i) was that ‘the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.’[9]
[8] The decision of Kerr J was overturned on other grounds.
[9] Sabharwal at [83].
The approach of Kerr J is consistent with paragraph 6(2) of Annex A to Direction 90 which provides that ‘the grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance’ of future offending.
The second step involves the exercise of a discretion guided by the considerations set out in Direction 90. Section 499(2A) mandates that the Tribunal must comply with Direction 90.
Direction 90
The purpose of Direction 90 is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA. Under s 499(2A), the Tribunal must comply with a direction made under s 499.
The relevant principles that the Tribunal must apply to the task of deciding whether to refuse a non-citizen’s visa are set out in paragraph 5.2 of Direction 90 as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. …
In making a decision under s 501(1), the following are primary considerations:
(i)protection of the Australian community from criminal or other serious conduct;
(ii)whether the conduct engaged in constituted family violence;
(iii)the best interests of minor children in Australia;
(iv)expectations of the Australian community.
In making a decision under s 501(1), other considerations must also be taken into account, including (but not limited to):
(i)international non-refoulement obligations;
(ii)extent of impediments if removed;
(iii)impact on victims;
(iv)links to the Australian community, including:
a)strength, nature and duration of ties to Australia;
b)impact on Australian business interests
In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.[10]
CONSIDERATION
[10] Direction 90 at 7.
Factual Background
Statements and oral evidence were given by the applicant, his friend, the President of the Arkan Rohinga Community of Australia and a forensic psychiatrist. The personal background of the applicant is uncontroversial and is set out below based upon the applicant’s Statement of Facts, Issues and Contentions:
5 The Applicant was born on [day] December [year] in [village] Myanmar. He is of the Rohingya ethnicity and of Sunni Muslim faith. [The Applicant] is one of nine siblings. His father was a farmer and his mother was a housewife.
6 The Applicant completed four years of education and was then forced into working with his father, in order to support his family. The applicant is illiterate. Between the ages of 10 and 13, when he was still a boy, he was abducted by the Burmese Military and forced by them to act as unpaid labour in the jungle. As a Rohingya, his movement were restricted and the Government did not allow him to move freely from one place to another, even within his own Township.
7 In 2006, the Applicant fled Myanmar to Malaysia by foot. In Malaysia, he was registered with the UNHCR which granted him temporary residence but did not allow him to work. The Applicant did unofficial electrical and construction work to get by, but was regularly pursued by police for bribes. This made working and living in Malaysia increasingly difficult and in 2013, the Applicant decided to come to Australia.
8 In 2013, the Applicant’s former wife, [omitted], travelled to Malaysia from Burma. They were from the same village in Burma and were introduced by his wife’s brother, whom the Applicant worked with for some years in Malaysia. Shortly after [the Applicant’s former wife] arrived in Malaysia, the Applicant and her got married.
9 None of the Applicant’s family currently live in Myanmar. In 2017, his family fled Burma to Bangladesh because of the Government’s persecution of the Rohingya people. The Applicant remains in contact with his father and brother.
10 In May 2013, the Applicant and his wife left Malaysia by boat to seek asylum in Australia. They arrived in Australia on 31 May 2013. They spent two months on Christmas Island before being transferred to a detention centre in Melbourne. After four weeks, the Applicant and his wife were granted Bridging Visas, and they settled in [a place] in Victoria.
11 The Applicant and his wife struggled to adjust to life in Australia. The Applicant was unable to gain employment due to language barriers and an insufficient support network. The Applicant’s wife struggled with health complications during her pregnancy which the applicant supported her through. Despite these challenges, the Applicant states he and his wife had a happy and loving marriage. They had two children together, [omitted], a son, born in 2014, and [omitted], a daughter, born in 2016. Both children are Australian citizens. The Applicant assisted in the upbringing of his children and was closely involved and a devoted father.
12 The Applicant and [sic] has family shared their home with three of their friends from the Rohingya community, one of which was [omitted] …[who] met the Applicant through the Rohingya community in Melbourne and he moved into the Applicant’s home in 2015. The Applicant’s wife and [omitted] started a relationship which led to the breakdown of the Applicant’s marriage. The Applicant suffered from deep grief following the failure of his marriage.
Criminal and other Serious Conduct of the Applicant
On 25 May 2017, the applicant was convicted of an unlawful assault on his wife which was committed on 10 March 2017 and three related contraventions of family violence intervention orders. A community correction order was made requiring him to be supervised for 12 months and to undertake a mental health assessment and an offending behaviour program.
On 26 October 2018, the applicant was convicted for intentionally causing injury to his wife’s new partner (who I will refer to as AH), contravening a personal safety intervention order and a family violence intervention order and for intentionally damaging property. He was sentenced to a term of imprisonment for 123 days.
With respect to the 2017 offending, the following events were not disputed. In contravention of a family violence intervention order served on 16 February 2017, the applicant attended his wife’s home on 10 March 2017. They argued and his wife became scared and ran outside with her son. The applicant attempted to pull her back inside by grabbing her arms with his hands. A passer-by intervened and approached the applicant and took him to the ground and restrained him. The applicant walked towards a vehicle and drove away. The passer-by contacted police to report the matter while reassuring the wife.
On the following day the applicant attended the home again in contravention of the family violence intervention order. He was transported to the local police station and told the police that his wife had asked him to come and take their sick child to the hospital. The applicant contravened the family violence intervention order for a third time on 23 May 2017 when he went to the home to see his children because he missed them.
With respect to the 2018 offending, the following events were not disputed. On 26 June 2018, the applicant’s wife and AH and her children were at home. At approximately 5 am AH walked out the front door to leave for work when he was confronted by the applicant who struck him in the head with a weapon. AH was hit several times to the head causing bleeding, superficial head lacerations and soft tissue injuries. He ran away but the applicant chased him. He was taken to hospital and was admitted for three days of treatment. The applicant was arrested later that day and denied the incident despite being shown CCTV images of it. He later pleaded guilty to intentionally causing injury to AH.
In addition to the conduct for which he was convicted, the applicant was involved in two other incidents which resulted in intervention orders being issued. The first incident was recorded in a police statement which said that on 10 February 2017, the applicant and his wife were at their home with their two young children when there was an argument and the applicant became angry and slapped his wife twice to her face. She reported the matter to the police on 13 February 2017. The applicant denied the assault and no charges were laid due to insufficient evidence. The wife did not sustain any injuries. The applicant maintains his denial that he hit her or slapped her. There was no evidence from the wife at the hearing. There was a second incident which resulted in a personal safety intervention order being issued against the applicant which occurred on 13 April 2018. A police statement records that the applicant approached AH in the street and began punching him in the head numerous times with a set of keys between his fingers whilst yelling that he had ruined his family and his life. The applicant denied hitting him said that it was just an argument and a scuffle and that AH did not get injured. No charges were laid but a personal safety intervention order was issued on 28 May 2018 with conditions to be in place until 31 December 2019.
Does the Applicant Pass the Character Test?

The first issue to consider is whether, in the event that the applicant was allowed to remain in Australia, there is a risk that he would engage in criminal conduct. As set out above the level of risk required is more than a minimal or trivial likelihood of risk. Some guidance for the decision-maker is provided by Davies J in Irving v Minister for Immigration, Local Government and Ethnic Affairs:[11]
If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.
[11] (1996) 68 FCR 422 at 425.
I turn now to consider the nature of the applicant’s criminal activity and whether it reflected adversely on his character. The applicant has engaged in family violence against his wife on 10 March 2017 which resulted in a conviction and a community corrections order. Related to the family violence is the surprise attack on AH as he was leaving to go to work early on 26 June 2018 which resulted in a conviction and a custodial sentence being imposed. It is concerning that the unlawful assault on 10 March 2017 occurred within one month of the incident on 10 February 2017. That earlier incident is the subject of a factual dispute but it was serious enough for the wife to report the matter to the police on 13 February 2017 and it resulted in a family violence intervention order being issued by the Magistrates Court on 16 February 2017. Whilst there is insufficient evidence to find that the applicant struck his wife on that day, it is not in dispute that there was at least a verbal argument, a report of family violence to the police and a subsequent court order. Further, the applicant accepted during cross examination that he understood that the order prohibited him from having contact with his wife. I find that he wilfully contravened the family violence intervention order by attending at his wife’s home on the day of the unlawful assault on 10 March 2017 and again on 11 March 2017 and 23 May 2017.
I take into account that the applicant became upset upon finding out that his wife was having an affair with AH who was actually living in the family home of the applicant and his wife and children. The applicant gave oral evidence that the argument on 10 February 2017 arose because of the affair. He told the police that the argument on 10 March 2017 which developed into an assault also arose because of the affair. It is understandable that the applicant argued with his wife but I have concerns about his character arising from what he told police on the day after the assault, namely that “I did not go there intentionally. … I followed every rule from the court”. This was false. Further, when the police asked about the assault, he said:
Yes I do remember it’s the other way around. She want to blame me. She was running outside. I told her in our culture a wife shouldn’t go out without a scarf. I told her not to run. I do remember two witnesses say don’t hold. I didn’t hold to hurt her just to save her honour. I told her because she didn’t have a scarf. When witnesses told me not to grab her I left her.
During examination in chief before the Tribunal the applicant said that he was invited by his wife to go to her home on 10 March 2017 because their child was sick. He said that was why he breached the intervention order that day.
Under cross examination the applicant denied the police’s version of events and changed his story to say that his wife wanted money from him and that he went there to give her $1,000. He said that he tried to hold her arm, not letting her go out and that when the neighbours said to let her go, he did so. This is contrary to the police statement which said that the passer-by who told him to let her go had to forcibly restrain the applicant. The applicant told the Tribunal that his wife asked him to go there and “that’s why I fell into her trap. It was her plan. Now I know I shouldn’t fall into her traps.”
I find that the applicant lied to the police and continued before the Tribunal to try to diminish his responsibility for the assault and to blame his wife. Whilst expressing regret for what he had done, the applicant displayed no insight when giving evidence of any harm that he had caused his wife. Instead, he emphasised his lengthy incarceration as the harm that arose from his conduct.
With respect to the incident when the applicant caused injury to AH, this involved some planning because the applicant was waiting outside the unit at 5am and confronted AH as he left to go to work. This incident took place in June 2018, well over a year after the family violence episodes in 2017 and after intervention orders had been made separately with respect to the wife and AH. The applicant denied the incident when confronted by police. The police statement on which he was convicted said:
The accused has attended the victim’s address in the possession of a weapon, behaved in a calculated and violent manner in breach of Family Violence Intervention Order, and Personal Safety Intervention Order and has assaulted the victim causing injuries to his head requiring three days hospital of treatment and ongoing emotional distress.
… The accused has shown no remorse and no regard for the psychological impact his offending has had on the protected persons and the accused children.
The applicant explained to the Tribunal that he assaulted AH because he was sleeping with his wife and because he had assaulted the applicant’s children. He said that he now understands that he should have not confronted AH but instead should have reported him to the police.
The nature of the applicant’s offending is particularly serious because the violence and contraventions of intervention orders were numerous and frequent over a period from February 2017 to June 2018. It may have been understandable for the applicant to be upset when he first found out about his wife’s infidelity in February 2017, but his offending continued well beyond any reasonable period and well after he had moved out of the family home. His anger was directed towards his wife and her new partner and his conduct must have impacted adversely on his young children who remained with their mother.
I turn now to consider the issue of reform. The Department of Justice and Community Safety in Dandenong prepared a report dated 29 January 2019 with respect to his contravention of the community corrections order. It noted that the applicant had attended his first supervision engagement on 29 May 2017 but had then failed to attend on 30 October 2017, 16 November 2017 and 19 March 2018. The case manager who wrote the report said that during discussions the applicant remained vague and attempted to minimise the seriousness of the offending behaviour. He did not complete his Men’s Behaviour Change Program having only attended three sessions before he was placed into custody for his later offending.
The applicant has expressed remorse but, having heard his oral evidence, I am not satisfied that his remorse is genuine. He admitted assaulting AH but was reluctant to accept full responsibility for the family violence against his wife. He diminished his responsibility by saying that she had a plan of inviting him to the home and that he had fallen into her trap. Further, he blamed her for trying to leave the home after she became scared of him. He admitted to holding her and not letting her go but his restraint on her must have been very severe to attract the attention of the passer-by and for the police to be called and for him to be convicted of unlawful assault.
The applicant said that this program of counselling in Dandenong taught him about family law and good behaviour. However, he obviously did not learn his lesson at that stage because he was involved in an incident with AH on 13 April 2018 and he contravened his family violence intervention order and attacked AH with a weapon on 26 June 2018 which was only two months after his last session with the Men’s Behaviour Change Program. While in prison, the applicant attended a one-day family violence group session during which he learnt the importance of not reacting to a spouse’s anger. He has been in detention since October 2018 and said that he attended a behavioural program at Yongah Hill detention centre. He stayed out of trouble but there were no further rehabilitative courses available in detention.
The applicant indicated he would attend further rehabilitative programs if released into the community. He said he would live with his friend who gave evidence to the Tribunal that he would support him. He said that he will stay away from his wife and her new partner, who, the evidence suggests, have moved interstate. I accept that the offending was all in the context of his marriage breakdown and his wife’s relationship with a new partner in 2017 and 2018. Prior to and after this period he stayed out of trouble. These are positive factors in terms of his rehabilitation. However, it is of concern that he did not complete the rehabilitative program relating to family violence. Further, it is of concern that at the hearing in the Tribunal he demonstrated that he was not fully rehabilitated and that he had not developed sufficient insight into his family violence offending because he minimised his unlawful conduct and placed much of the blame for it on his wife.
I note that Dr Zimmerman in her report said “I do not believe that there is evidence of recent problems with insight.” I have found to the contrary based primarily on the applicant’s conduct during the hearing but also what he told police together with the report from the Department of Justice and Community Safety dated 29 January 2019. I do note that Dr Zimmerman highlighted five areas that need addressing in order to reduce the applicant’s risk of future violent offending, namely his history of problems in relationships, his past unemployment, his inability to date to locate a specific service to assist with relevant counselling on release to the community and the possibility of struggling to manage stress associated with re-establishing contact with his children. Dr Zimmerman concluded that the applicant presents a low risk of future violent offending. I consider that having not engaged in sufficient rehabilitation there is a real albeit low risk of future family violence.
Consequently, I am not satisfied that the applicant passes the character test because there is more than a minimal or remote chance that the applicant will re-offend.
The applicant having failed the character test, I now turn to consider if he should be refused a visa guided by the considerations set out in Direction 90.
Protection of the Australian community – 8.1 of Direction 90
There is an overlap between the factors considered above as part of the character test and the factors relevant to protection of the Australian community. When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. I give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the non-citizen’s conduct – 8.1.1 of Direction 90
The applicant has convictions for family violence against his wife and an act of violence against his wife’s partner, AH. The Australian Government and the community view these types of crimes very seriously. There were four offences committed in 2017 and another four in 2018. During this period the offending was frequent with a trend of increasing seriousness reflected by the imposition of a community corrections order for the 2017 offending and then a period of imprisonment for the 2018 offending. The cumulative effect on the wife and her new partner was significant because it involved two acts of violence and numerous breaches of intervention orders. Whilst the wife and her partner did not give evidence to the Tribunal, the nature of the offending against them would have likely caused them to live in fear for a significant period of time after the applicant moved out of the family home in February 2017.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 90
In considering the need to protect the Australian community from harm, I have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. I also have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i)information and evidence on the risk of the non citizen re-offending; and
ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Risk to the Australian community
In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.[12] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
Nature of harm if further criminal or other serious conduct
[12] (2014) 225 FCR 424; [2014] FCA 673.
If the applicant were to engage in further similar criminal offending, then the nature of the harm would be very serious because it involved family violence and breaches of intervention orders so as to cause fear and psychological distress over a significant period of time. In addition, there would be serious physical harm if the cause injury offence was repeated noting that AH was hospitalised for three days as a result of his injuries.
Likelihood of further criminal or other serious conduct
The applicant contends that he is a low risk of re-offending and this is supported by the expert opinion of the forensic psychiatrist, Dr Zimmerman. I adopt and repeat my findings with respect to the likelihood of re-offending as a factor taken into account for the purposes of the character test.
With respect to formal rehabilitation programs, the evidence is limited. It would appear from the report of the Department of Justice and Community Safety that the applicant commenced with the Men’s Behaviour Change program on 29 May 2018 and completed only three sessions before being taken into custody for the offending on 26 June 2018. It is concerning that despite having commenced a formal rehabilitation program, the applicant committed the calculated attack causing serious injury to AH. He was not able to further engage with the Men’s Behaviour Change program and there is limited evidence about any further rehabilitation achieved as a result of attending the one-day family violence group session in prison and the behavioural program in detention.
Dr Zimmerman considered that the applicant was able to demonstrate that he has learned the importance of mutual understanding and respect in relationships but concluded that he was at risk of future problems until a specific program or service is identified. I am not satisfied that the applicant has achieved sufficient rehabilitation as at the time of my decision because his engagement with formal rehabilitation has been limited and because his oral evidence demonstrated a lack of insight with respect to his family violence offending.
I accept that if the applicant were released, he would have the support of members of the Rohingya community and his friends who would help him to find employment. He has accommodation arranged with a friend who would also help him to integrate back into the community. These are positive factors that would reduce the likelihood of re-offending.
Conclusion as to protection of the Australian community
The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[13] The applicant committed offences that are so serious that even a low risk of re-offending is not acceptable. The protection of the Australian community is a factor that weighs heavily in favour of refusing the visa.
[13] Direction 90 at 8.1(1).
Family Violence – 8.2 of Direction 90
The applicant has engaged in family violence which would be viewed very seriously by the Australian Government and community. The incident on 10 February 2017 is the subject of a factual dispute but it was serious enough for the wife to report the matter to the police on 13 February 2017 and it resulted in a family violence intervention order being issued by the Magistrates Court on 16 February 2017. It is not in dispute that there was at least a verbal argument, a report of family violence to the police and a subsequent court order. I am prepared to find that there was some episode of family violence on that day.[14]
[14] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 at [184].
I take into account that there was only one act of physical family violence but that act should be considered together with the incident on 10 February 2017 and the three subsequent breaches of family violence intervention orders together with the related incidents involving the wife’s partner that continued into 2018. I find that these incidents were likely to have caused the wife to be fearful over an extended period. The definition of family violence in Direction 90 is very broad and includes violent, threatening or other behaviour that causes the family member to be fearful. I consider that the repeated breaches of contravention orders and the attack on the wife’s partner comes within the definition as other behaviour that causes the family member to be fearful.
Based upon that broad definition of family violence, the applicant’s conduct was frequent and there is a cumulative effect of repeated acts of family violence. The applicant’s conduct was likely to have caused the wife to live her life in fear over a significant period, namely from February 2017 when he left the family home up until the time of his incarceration on or around 26 June 2018.
With respect to the extent of rehabilitation achieved at the time of this decision, I repeat what is set out above in relation to the character test and the protection of the Australian community. I confirm my finding that the applicant’s rehabilitation is insufficient. The applicant has failed to adequately accept responsibility for his family violence related conduct. The applicant has not demonstrated an adequate understanding of the impact of his behaviour on his wife.
The significant extent of family violence by the applicant together with his failure to rehabilitate himself means that this is a factor that weighs very heavily in favour of a decision to refuse the visa.
Best interests of minor children – 8.3 of Direction 90

I must determine whether refusal of the visa is, or is not, in the best interests of a child who is affected by the decision. In this case, it is the applicant’s son and daughter who would be affected by the visa refusal. The best interests of each child should be given individual consideration to the extent that their interests may differ. The following factors that I must consider and are relevant to this application include:
(a)the nature and duration of the relationship between the child and the applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact;
(b)the extent to which the applicant is likely to play a positive parental role in the future;
(c)the impact of the applicant’s prior conduct and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the applicant would have on a child, taking into account ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child; and
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
The applicant has two children, a son aged 8 years old and a daughter aged 6 years old, born in 2014 and 2016. The applicant became estranged from his family in February 2017 at the time of the first episode of family violence. Before that time, the applicant had a very happy marriage and was a good father to his children, but he has had no access to them since 2018. He wants to re-establish contact with them and will take appropriate steps to do so if released including the involvement of a lawyer if necessary. He is likely to play a positive role as a father if released but I note that he intends to stay in Melbourne and his wife and children have moved interstate.
The children were at home during the incident of family violence on 10 March 2017 and it was noted on the police statement that when the wife became scared, she ran outside with her son. It is likely that the son witnessed or at least was aware of the act of family violence on that day which would have caused him fear. I take into account this negative impact on the son who was only three years old at the time. There is a risk, albeit low, of further family violence which would potentially have a negative impact on the children. This is less likely because the applicant has separated from his wife and will not be living in the same city as his children.
I accept that the applicant has a genuine desire to re-connect with his children and to provide financial and other support to them while they grow up. It is in the best interests of the children if the applicant is able to do this. Consequently, I find that a decision to refuse the visa is not in the best interests of the children but I give this factor less weight because the applicant has been apart from his children for a substantial part of their lives and because of the negative impact on the son of the family violence.
Expectations of the Australian community – 8.4 of Direction 90
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.[15]
[15] Direction 90 at 8.4(1).
In addition, visa refusal may be appropriate simply because the nature of the character concerns is such that the Australian community would expect that the person should not be granted a visa.[16]
[16] Direction 90 at 8.4(2).
Paragraph 8.4(4) of Direction 90 provides that, as a decision-maker, I must consider the expectations of the Australian community as a whole and proceed on the basis of the Government’s views expressed therein, without independently assessing the community’s expectations in the particular case. However, in the weighing up exercise by which I evaluate whether to exercise my discretion, it will be necessary to assess the circumstances particular to the applicant. In this regard, the following words of Stewart J in FYBR v Minister for Home Affairs[17] remain apposite to the expectations of the Australian community under Direction 90:
[97] … The community thus expects that it will be necessary in every case to assess the circumstances particular to the visa applicant in question in order to reach an evaluative assessment of “appropriateness”. That assessment is not an assessment of what the Australian community expects in the particular case. The Australian community expects people to obey the law, and if they do not (or there is a risk that they will not) then that is relevant to whether or not they will be granted a visa, and in some cases it may be appropriate that they will be refused a visa because of their disobedience (or the risk of their disobedience). Direction 65 does not ascribe to the Australian community a relevant expectation with regard to the outcome in the particular case. That is a matter for the decision-maker.
…
[102] It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be.
[17] (2019) 272 FCR 454; [2019] FCAFC 185.
I find that the character concerns arising from the applicant’s family and other violence mean that the Australian community would expect the Government to not grant the applicant a visa. It is clear from Direction 90 that the Australian community treats acts of family violence very seriously. Although the risk of further family violence is low, that risk is unacceptable in these circumstances..
My conclusion as to the expectations of the Australian community is that it is a factor that weighs heavily in favour of refusing to grant the visa.
Other considerations
In deciding whether to grant the applicant’s visa, I must also take into account the other considerations listed in Direction 90, but these are not exhaustive.[18]
International non-refoulement obligations – 9.1 of Direction 90
[18] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.[19] As a Rohingya man, the applicant belongs to a persecuted ethnic minority in Myanmar. It is not in dispute that the applicant is owed non-refoulement obligations. He would face a risk of real harm and persecution if returned to Myanmar. However, the effect of s 197C is that the applicant will not be returned to Myanmar. Given that there is no prospect of Australia breaching its non-refoulement obligations by returning the applicant to Myanmar, I give no weight to this consideration or the risk of harm if returned.
[19] Direction 90 at 9.1(1).
In terms of the legal and practical consequences arising from a decision to refuse the visa, I note that there is no evidence before me that the respondent is considering re-settlement in a third country or otherwise exercising a discretion to allow him to remain in the community of Australia. The “inevitable and direct legal consequences”[20] of a decision to refuse the applicant a visa is that he will remain in detention indefinitely or at least for a prolonged period.
[20] BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878 at [51].
A prolonged period in detention would deprive him of his liberty and would likely have a negative impact on his mental health. Dr Zimmerman confirmed in her report the likely adverse impact on the mental health of the applicant if he were indefinitely detained. This is a factor that weighs very heavily in favour of granting the applicant a visa.
Extent of impediments if removed to home country – 9.2 of Direction 90
Direction 90 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to his home country in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The applicant’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to him in that country.
The applicant has lived in Australia for 9 years. He has no family or social support in Myanmar and as a Rohingya he would face active discrimination, poverty and risk of death. The extent of impediments if returned to Myanmar are significant and likely insurmountable. This is a factor that weighs in favour of granting him a visa but I give it no weight because he will not be returned there given the operation of s 197C.
Impact on victims – 9.3 of Direction 90
There was no evidence in relation to the impact on victims of a decision to grant the visa within the meaning of Direction 90. Consequently, this consideration neither weighs for nor against the granting of a visa.
Links to the Australian community – 9.4 of Direction 90
I must consider the impact of a visa refusal decision on the applicant’s immediate family members which in this case comprises the applicant’s two children and his ex-wife. The applicant has said that he wants to reconnect with and help to support his children financially and in other ways. I consider that this support would assist the ex-wife and the children. There is no evidence from the wife but in the circumstances of the previous family violence and given that the applicant is estranged from his wife, there is a real doubt as to whether she would welcome or accept this support. Nevertheless, the promised support if provided would assist her and be of benefit to the children. Consequently, I find that a visa refusal would have a negative impact on his wife and children, which is a factor in favour of granting the visa.
The applicant has significant ties to Australia through his links to the Rohingya community. These strong ties are confirmed by the President of the Arkan Rohingya Community of Australia who provided a statement of support and gave oral evidence in favour of the applicant being granted a visa. There is also a statement from his friend who gave oral evidence which refers to their close relationship. The friend wants to support the applicant if he is released because he believes that he is a good person who is remorseful and wants to change his life. The applicant’s first offence was in 2017 which was about 4 years after arriving. The applicant helped to bring up his children until that first offence. I take into account this period of about 4 years spent contributing positively to the Australian community. I note that paragraph 9.4.1(2) of Direction 90 mandates consideration of ties to the Australian community “where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa”. It follows that this paragraph does not apply to the refusal of a visa such as this case. Nevertheless, consideration of ties to the Australian community is not precluded by the Direction and I consider that some weight should be given to it.
This is a factor that weighs in favour of granting a visa to the applicant.
Conclusion as to whether to exercise the discretion to refuse the visa
I have considered the specific circumstances relating to the applicant as part of my consideration. I am now required to determine whether to exercise my discretion to refuse to grant a visa to the applicant.
The primary considerations of the protection and expectations of the Australian community and family violence weigh heavily in favour of refusing to grant a visa. I have considered the nature and the seriousness of the family violence under paragraphs 8.1.1 and 8.2 of Direction 90 but I note that “where a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously.”[21] In that sense I do not “give a double weighting”[22] to the family violence.
[21] Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 at [26] per Perram J, adopted in WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at [78] per Derrington J.
[22] XXBN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 74 at [53].
The countervailing factors of weight are the prospects of indefinite detention, the best interests of his children and the links to the Australian community. Ultimately, I have decided that those countervailing factors are outweighed which means that the visa should be refused.
The Australian community expects that the Australian government will not grant visas to non-citizens if they have engaged in conduct that raises serious character concerns. The applicant has engaged in such conduct. In this case, the conduct and the harm that would be caused if it were repeated is so serious that even strong countervailing considerations would be insufficient to justify not refusing the visa. In particular, the inherent nature of the family violence is so serious that it would outweigh the countervailing considerations even if the applicant did not pose a measurable risk of causing physical harm to the Australian community. I have found that there is a low risk of further family violence but that the risk is unacceptable in the circumstances.
The prospect of indefinite detention is a very significant countervailing factor which I have carefully weighed in my consideration. It is the cumulative impact of repeated acts of family violence and the unacceptable risk of further family violence that tips the scales in favour of refusing a visa.
The decision of the Tribunal is to affirm the decision under review.

I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

............................[SGD]............................................
Associate
Dated: 24 August 2022

Date(s) of hearing: 11 and 12 August 2022

Counsel for the Applicant: A. McCowan

Solicitors for the Applicant: Refugee Legal

Advocate for the Respondent: J. Papalia

Solicitors for the Respondent: Australian Government Solicitor

Date(s) of hearing:	11 and 12 August 2022
Counsel for the Applicant:	A. McCowan
Solicitors for the Applicant:	Refugee Legal
Advocate for the Respondent:	J. Papalia
Solicitors for the Respondent:	Australian Government Solicitor