Paerau and Minister for Home Affairs (Migration)

Paerau and Minister for Home Affairs (Migration) [2018] AATA 4257 (15 November 2018)
Division:GENERAL DIVISION
File Number: 2018/4775
Re:Gabry Paerau
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:15 November 2018
Place:Brisbane

The decision under review is affirmed.
............................[sgd]............................................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – refusal of application for a bridging visa – expedited matter – where grant of visa refused under s 501(1) because Applicant did not pass the character test and was serving a full-time term of imprisonment – whether discretion in s 501(1) to refuse to grant a visa should be exercised – considerations in Direction No 65 – decision under review affirmed
LEGISLATION
Criminal Code 1899
(Qld), ss 315A, 564

Domestic and Family Violence Protection Act 2012
(Qld), s 177(2)(a)
Migration Act 1958 (Cth), ss 116, 499, 500, 501
CASES
Afu v Minister for Home Affairs
[2018] FCA 1311
Allan and Minister for Immigration and Border Protection [2016] AATA 1077

ETWK and Minister for Immigration and Border Protection
[2017] AATA 228

Suleiman v Minister for Immigration and Border Protection
[2018] FCA 594

Waits and Minister for Immigration and Multicultural and Indigenous Affairs
[2003] AATA 1336

YNQY v Minister for Immigration and Border Protection
[2017] FCA 1466
SECONDARY MATERIALS
Direction No 65 – Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA made under s 499 of the Act
REASONS FOR DECISION
Senior Member Theodore Tavoularis
15 November 2018
INTRODUCTION

This is an application for review of the decision by a delegate of the Minister for Home Affairs (the “Minister” or “Respondent”) to refuse Gabry Paerau (“the Applicant”) a Bridging E (Class WE) visa, pursuant to s 501(1) of the Migration Act 1958 (Cth) (“the Act”).
Under s 500(1)(b) of the Act, this Tribunal has jurisdiction to review the decision made by the Minister’s delegate.
BACKGROUND
The Applicant was born in the Cook Islands but has resided in Australia since June 1998. In February 2018, his special category (class TY) (subclass 444) visa was cancelled. Although he appealed that decision to the Migration and Refugee Division of this Tribunal, he was unsuccessful; the Tribunal affirmed the decision to cancel his visa. This decision is not in relation to that visa. Rather, it is in relation to the refusal by a delegate of the Minister under s 501(1) of the Migration Act 1958 (Cth) (“the Act”) to grant the Applicant a bridging visa E.
The relevant factual sequence leading to this application can be summarised as follows:
·Upon arrival in Australia in 1998, the Applicant was the holder of a special category (class TY) (subclass 444) visa or its then-equivalent;
·Consequent upon his offending, on 8 February 2018, the abovementioned special category visa that had been previously granted to him was cancelled pursuant to s 116(1)(e) of the Act;
·On 19 April 2018, the Migration and Refugee Division of this Tribunal affirmed the immediately preceding cancellation decision;
·The Applicant was sentenced for his most recent offending on 8 February 2018. He was released on parole on that day. It seems he was immediately taken into immigration detention, where he remains;
·On 10 June 2018, the Applicant made an application for a Bridging E (Class WE) visa;
·On 21 August 2018 a delegate of the Respondent refused to grant the Bridging E (Class WE) visa pursuant to 501(1) of the Act; and
·On 25 August 2018, the Applicant filed the application for review of the delegate’s decision now before this Tribunal.
ISSUES
Under s 501(1) of the Act, the Minister – or his delegate – “may refuse to grant a visa to a person if the person does not satisfy the minister that the person passes the character test”. Importantly, there are two stages to this enquiry. First, there is an onus on the applicant to satisfy the decision-maker that they pass the character test. If the decision-maker is not so satisfied, a decision-maker must progress to the next stage of the enquiry. That is, whether the discretion to refuse to grant the visa should be applied.
This latter enquiry is informed by a direction of the Minister under s 499 of the Act: Direction No 65 – Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA made under s 499 of the Act (“the Direction”). The Tribunal is bound to comply with the Direction.[1] In addition to setting out some guiding principles, discussed in more detail below, the Direction enumerates three primary considerations and four other considerations which a decision-maker must take into account in determining whether to use the discretion to refuse to grant a visa. It is important to recognise that although the second class of considerations are described as being “other” considerations, this does not mean that they necessary take on secondary importance when compared to the “primary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[2]
Direction 65 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.[3]
[1] Migration Act 1958 (Cth), s 499(2A).
[2] [2018] FCA 594.
[3] Ibid at [23].
Thus, I must address two issues:
(a)Whether the Applicant passes the character test as defined in s 501 of the Act;
(b)Whether there is another reason for the discretion to refuse to grant the visa should not be applied.
I will address each of these two issues in turn.
ISSUE 1: DOES THE APPLICANT PASS THE CHARACTER TEST?
The representative of the Minister contends that the Applicant does not pass the character test because he has a “substantial criminal record” as defined in ss 501(6)(a) and 501(7)(c) of the Act.[4] The Applicant does not contest this, but it is nevertheless necessary to consider this issue.
[4] See Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), [13] and [20].
It is helpful to set the relevant provisions out.
501 Refusal or cancellation of visa on character grounds
…
6For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
7For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
…
Thus, the Applicant will be taken to have a substantial criminal record if he has either been sentenced to a single term of imprisonment of 12 months or more, or if he has been sentenced to multiple terms of imprisonment where the sum of those terms is 12 months or more.
Offending History
Stated succinctly, the Applicant’s offending criminal and domestic violence history may be stated thus:
·2009 – serious conduct giving rise to the making of a domestic violence order;
·11 July 2014 – for the offences of:
oBurglary;
oEntering premises to commit an indictable offence;
oPossessing a utensil for the consumption of an illegal substance; and
oFailing to appear;
·19 February 2016 – for the offences of:
oBreach of bail;
oStealing;
oContravening a domestic violence order; and
oAssaults occasioning bodily harm;
·8 February 2018 – for the offences of:
oStrangulation in a domestic violence setting;
oContravention of a domestic violence order with a circumstance of aggravation.
The Applicant’s traffic history likewise does him no favours. When it was put to him in cross-examination, the Applicant accepted that he had committed three drink-driving offences.
There is little or no question that the Applicant’s history of offending is a serious one. I am satisfied he has a substantial criminal record for the purposes of s 501(7) of the Act as he was sentenced to a term of imprisonment of 12 months or more on 8 February, 2018. The time actually served by the Applicant is not material for present purposes. Consequently, pursuant to s 501(6) of the Act, the Applicant does not pass the character test. Thus this ground cannot be used to enliven the Tribunal’s discretion to refuse to grant the Bridging E (Class WE) visa.
ISSUE 2: IS THERE ANOTHER REASON FOR THE DISCRETION TO REFUSE TO GRANT THE VISA TO BE APPLIED?
The Legislative Framework
In considering whether to exercise the discretion in s 501(1) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with Direction No. 65. The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
… a decision-maker:… must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa;[5]
[5] Direction No. 65, paragraph 7(1)(a).
The Direction requires that any exercise of the discretion in s 501 is to be informed by the Principles in paragraph 6.3. Briefly stated, they are summarised 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 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 future 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;
(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 for minor children and other immediate family members in Australia are considerations for determining whether to exercise the discretion.
The considerations relevant to refusing a non-citizen’s visa application appear in Part B of the Direction. Paragraph 11 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; and
(c)Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that a decision-maker 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 12 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims; and
(d)Impact on Australian business interests.
Primary Consideration A
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 11.1(1) of the Direction further provides that decision-makers should also 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 Applicant’s Conduct to Date
The Respondent contends that the Applicant’s offending is of a very serious nature.[6] I am inclined to agree. The Applicant’s history of criminal conduct is one having a primary theme of violence, mainly perpetrated on those within his immediate circle. Implicit in this history is a lack of respect for the authority of law enforcement.
[6] See Exhibit 2, Respondent’s SFIC, [23].
The Applicant has not sought to deny the seriousness of his offending, either in his oral testimony before me or in his written submissions. He accepts his offending, particularly the two domestic violence offences for which he was sentenced in 2016 and 2018 as being very serious.[7] At the hearing, it was contended by the Applicant that much, if not all of his offending has derived from his previous abuse of alcohol and an inability to control his initial responses to situations of very high stress and frustration. Although the Applicant seems to have a level of insight into the nature and history of his offending, the issues around alcohol and a lack of self-control that are behind his offending seem unresolved. For reasons that follow I do not think the Applicant’s contentions justify exercise of the Tribunal’s discretion to reverse the decision not to grant the Bridging E (Class WE) visa.
[7] See Exhibit 1, Applicant’s SFIC, [26] and [53].
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 11.1.1 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;
…
(e)The sentence imposed by the courts for a crime or crimes;
(f)The frequency or the non-citizen’s offending and whether there is any trend of increasing seriousness;
(g)The cumulative effect of repeated offending.
Sub-paragraph (a) of paragraph 11.1.1 of the Direction provides that, without limiting the range of offences that may be considered serious, crimes of violence (which must surely include acts of domestic violence) are to be viewed seriously. There is an undeniable element of violence in the Applicant’s history of offending.
The circumstances of the Applicant’s domestic violence offending indicate a significant level of violence. It seems to have commenced in 2009 although the Applicant seemed coy in mentioning the 2009 incident in an earlier statement he provided for the Respondent’s delegate:
33. I committed my first domestic violence offences on 30 January 2016. At the time [my partner’s] parents were living with us and it was causing us some financial problems. I had been drinking and [my partner] and I got into an argument about money. During the argument I said that I was leaving and I walked outside to get in the car and drive off. [My partner] told me not to drive because I was drunk but I got in the car anyway. [She] said she was going to call the police so I got out of the car and grabbed her phone and smashed it. I also pushed her and hit her a number of times in the body. The neighbours call [sic] the police and when they came I was arrested, when they were trying to arrest me I was throwing myself around making it difficult for the police to control me.
34. As a result of the above, I was charged with stealing [my partner’s] phone and assault occasioning bodily harm (both domestic violence offences) and assaulting or obstructing a police officer.
35. The police released me on the afternoon of 30 January 2016 and handed me some paperwork which I didn’t understand. I went back home. When I got home there was a lot of tension between [my partner] and I and we started arguing again and her mum called the police. The police arrested me again when I arrived and I was charged with contravening a domestic violence order (x2) and breaching a bail condition (domestic violence offence).
36. I was taken to Watch House for seven days and then held at Arthur Gorrie Correctional Centre on remand for 14 days.
37. I plead guilty to all charges on 19 February 2016. The court sentenced me for each of the offences as follows:
a. Breach of bail and stealing: conviction recorded with one month imprisonment (concurrent) with immediate parole eligibility;
b. Contravention of domestic violence order and assaults occasioning bodily harm: conviction recorded with three months imprisonment (concurrent) with immediate parole eligibility; and
c. Contravention of domestic violence order and assault or obstruct police officer – no conviction recorded with twelve months probation.[8]
[8] Exhibit 3, section 501 G Documents, PG15, pages 151-152.
With specific reference to my earlier observation that the factors giving rise to the Applicant’s propensity towards domestic violence offending, one need look no further than what (to his credit) he frankly describes in his own words. In the period following his 2016 domestic violence offending, the Applicant said:
41. During this period [i.e. post the 2016 offending but before the later offending for which he was sentenced in February 2018] I was also required to attend a domestic violence course at a centre in Inala, Queensland as part of my probation. I completed that course and took some things from it. However, looking back on it I think because it was a group course and I am a shy and quiet person and did not speak up I did not get as much as I could out of it.[9]
[9] Ibid, page 152.
The Applicant’s words were prophetic because he re-offended and in a significantly more serious way. Again, in his own words:
43. On that night [i.e. 30 June 2017] [my partner] and I were drinking with friends at the Calamvale Hotel in Calamvale, Queensland. When it was time for us to leave, I was drunk and as we approached the car I did not want [my partner] to sit in the front seat because my friend who was driving was also drunk and I thought it would be safer for [her] to sit in the back. When [she] said no I forced her to sit in the backseat by grabbing her by the neck. My friend pulled the car over and the police and hotel security got to the car almost immediately.
44. I was arrested and charged with strangulation and contravention of a domestic violence order on 1 July 2017 and held at the Richlands Watch House for six days. I was then transferred to Arthur Gorrie Correctional Centre on about 7 July 2017 and was held there until my sentencing on 8 February 2018.[10]
[10] Ibid, page 152.

With reference to the Applicant’s offending on 30 June 2017, he was sentenced to respective terms of imprisonment as follows:
·For count 1 – choking, suffocation, strangulation – domestic relationship – domestic violence offence (pursuant to ss 315A(1)(a) & (b)(i) & 564(3A) of the Queensland Criminal Code 1899 – imprisonment for a period of 18 months with a declaration that 222 days of pre-sentence custody be imprisonment already served under the sentence; Order that the date the offender be released on parole be fixed at 08/02/2018.[11]
·For count 2 – contravention of domestic violence order (aggravated offence) (pursuant to s 177(2)(a) – Domestic and Family Violence Protection Act 2012 (Qld) – imprisonment for a period of 12 months with a declaration that 222 days of pre-sentence custody be imprisonment already served under the sentence; Order that the date the offender be released on parole be fixed at 08/02/2018.[12]
[11] Ibid, G10, page 122.
[12] Ibid.
The sentencing Judge ordered that the custodial terms be served concurrently. His Honour was fully aware of the circumstances of this offence:
The learned Crown Prosecutor has set out the facts of this serious offending in a statement. You do not challenge those facts.
In very short summary, you and the female complainant were in a relationship; you still are. You, together, have three very young children. On the 1^st of February 2016, a protection order was made in favour of the complainant. You met up with the complainant at the Calamvale Hotel on 30^th of June 2017, and on the way home, during the course of a disagreement over where people should sit in the car, you put your hands around the complainant’s neck and strangled her. The complainant suffered redness and a number of scratches to her neck and chest.[13]
[13] Ibid, PG11, page 124, lines 8-17.
Having regard to sub-paragraph (a) of paragraph 11.1.1 of the Direction, I am of the view that the totality of the Applicant’s offences – specifically his domestic violence offences – must be viewed very seriously. He has demonstrated a propensity of almost automatic default towards violence in a domestic context that involves any sort of challenge to his own command or to the way he wants things done. He has not demonstrated an inclination towards resolving an impasse by negotiation and discussion.
One must also have regard to the nature of his earlier offending involving, as it does, burglary, entering premises to commit an indictable offence, possessing a utensil for the consumption of an illegal substance, contravening a direction or requirement of lawful authority and failing to appear. For these offences the Applicant was sentenced to a fine of $1,000 and ordered to pay restitution of $6,500 for the items taken during the burglary. He was fined a further sum of $200 for failing to follow a direction or requirement of lawful authority. The offences of burglary and entering premises to commit an indictable offence are, to my mind, of a serious nature.
Sub-paragraph (e) of paragraph 11.1.1 of the Direction concerns itself with the sentence(s) imposed by the court/courts for a crime or crimes committed by the Applicant. As is often seen in matters such as this, the imposition of progressively more severe sentences across a given criminal history is suggestive of the fact that removal of an individual from mainstream society is viewed by the courts as a measure of last resort in the sentencing process.
A cursory review of the Applicant’s history of offending confirms he received the benefit of relative leniency from those sentencing him. There were favourable penalties involving the non-recording of a conviction, the imposition of fines and an order for restitution. His offending – particularly in 2016 and 2017 – escalated in its severity such that those sentencing him had no alternative but to impose harsher and custodial penalties involving head sentences with a significant custodial term. The significance of the custodial terms has now adversely impacted on the Applicant’s prospects in this application.
·11 July 2014 – for the offences of burglary, entering premises to commit an indictable offence, possessing a utensil for the consumption of an illegal substance and failing to appear, the Applicant was fined $1,000 and ordered to pay restitution of $6,500 for the items taken during the burglary. He was fined $200 for contravening a direction or requirement from lawful authority;
·19 February 2016 – for the offences of breaching his bail and stealing – one month imprisonment; for the offences of contravening a domestic violence order and assaults occasioning bodily harm – three months’ imprisonment; for the offence of contravening a domestic violence order and assaulting or obstructing a police officer – twelve months’ probation; all custodial sentences to be served concurrently;
·8 February 2018 – one count of strangulation in a domestic violence setting- 18 months’ imprisonment; one count of contravention of a domestic violence order with a circumstance of aggravation – 12 months imprisonment; both sentences to be served concurrently.
The circumstances of the Applicant’s domestic violence offending were not just very serious, they were potentially very dangerous for the victim (his partner). The violence he has perpetrated on his partner can in no way be regarded as a domestic scuffle. It is not possible for the Applicant to explain away his offending on the basis of momentary lapses of self-control. Those sentencing him throughout his history of offending seem to have arrived at the same conclusion.
The Applicant’s criminal history runs for a period of four years. Of course, his domestic violence history runs for longer than that – something in the order of nine years. If one has regard to only the four-year period (i.e. 2014-2018) during which lawful authority has seen fit to punish his offending, it becomes apparent that those sentencing him have quickly resorted to a custodial option rather than giving him non-custodial terms. This, in itself, is indicative of the level of seriousness of his offending. As mentioned, if one limits his offending period to four years, it becomes apparent that those sentencing the Applicant have seen fit to impose a cumulative custodial period of 34 months across the relevant four years. Put another way, the seriousness of his offending has caused those sentencing him to consider his conduct worthy of head sentences of custodial punishment for almost 71% of the for year period between his first and last appearances in a court for sentencing.
I am of the view that the sentences imposed by the courts for the Applicant’s criminal offending clearly indicate the nature and seriousness of his criminal conduct to date.
Sub-paragraph (f) of Paragraph 11.1.1 requires me to look at the frequency of the Applicant’s offending and whether there is any trend of increasing seriousness. Clearly, there is. Indeed, one could interpret his offending as serious from its earliest beginnings in 2009. The circumstances of the domestic disagreement between the Applicant and his partner (who, despite her experiencing repeated acts of quite serious domestic violence against her, still has the resilience to call herself the Applicant’s partner) are quite serious – especially for a first-recorded circumstance of domestic violence offending. To his credit, the Applicant was relatively forthcoming in cross-examination with the seriousness of the incident. He said words to this effect: that he and his partner went to a nightclub at Surfers Paradise for a night out; he became so intoxicated that he can barely remember assaulting her; that he has no doubt he did assault her and most probably in a quite severe way because he has a clear recollection that his actions were governed by jealousy, anger and a desire to exert controlling behaviour over her.
The Applicant clearly has an unresolved difficulty with resolving a difficulty or impasse that is immediately proximate to him, specifically, in the context of a domestic relationship or in a domestic circumstance. This inability to resolve problems of this type becomes marked and more clearly apparent (and thus more dangerous) when he has consumed alcohol. The alcohol seems to render him much more readily disposed to physically attack his partner in an effort to assert his authority over her or to otherwise prove his point to her. Contrastingly, the Applicant does not seem to have this same difficulty in relation to non-domestic settings, for example, the workplaces that have employed him or in other non-domestic contexts. If that were the case then one could expect to see a sequence or series of offences in a non-domestic context such as, for example, a football match or a social gathering where the Applicant may have had a physical altercation with another guest.
For present purposes and for this particular paragraph 11.1.1, sub-paragraph (f), the important question is whether a decision-maker can detect (a) whether the offending has been frequent; and (b) whether there is an increasing trend of seriousness. I consider that a pattern of offending occurring in 2009, 2014, 2016 and 2017 to be frequent. Even a cursory review of the escalating nature of the sentences across this period proves the increasing trend of seriousness of the Applicant’s offending. As mentioned earlier, the Applicant experienced the lighter hand of sentencing authority in 2009 with “only” the making of a domestic violence order against him, and, again, in 2014 with “only” fines and/or orders for restitution. By 2016, those sentencing him had no option but to impose custodial terms. There was a custodial period of four months imposed in 2016 with a dramatic escalation to a cumulative custodial period of 30 months imposed in February 2018.
The other significant inference to be drawn from the totality of the Applicant’s offending is that despite his relatively consistent appearances before, and dealings with lawful authority, he does not seem to be developing any measure of respect for it. His criminal and domestic violence offending is simply not abating.
The only conclusion that can be drawn from an application of this sub-paragraph (f) of paragraph 11.1.1 of the Direction is that the frequency of the totality of the offending and its trend of increasing seriousness are factors confirming the very serious nature of the Applicant’s criminal offending to date.
Sub-paragraph (g) of paragraph 11.1.1 of the Direction requires a consideration about whether the cumulative effect of the Applicant’s offending is such as to render it serious. Taking a longitudinal view of his offending, that question can be answered in the affirmative. While the Applicant may have engaged, at a rather early and superficial level, with what might loosely be called “treatment”, there is no concluded view about (a) identification of the factors giving rise to a propensity in him to offend; or (b) that those factors are somehow under professional management and control.
The Applicant speaks of wanting to immediately engage with rehabilitative treatment were he to be released back into the community. Well intended thought that may be, it does not serve to lessen the seriousness of his offending thus far. The present enquiry is involved with assessing the seriousness of what he has done against – if it were available – bona fide expert opinion that he is unlikely to re-offend because of the intervention of a rehabilitative expert(s). The seriousness of what he has done is self-evident. The absence of any report or opinion from a suitably qualified rehabilitative expert is obvious. In the absence of such an opinion, all that remains is the very serious nature of his offending to date.
I do not consider that the Tribunal can be satisfied that this Applicant has developed any measurable level of respect and deference to lawful authority. Even at the basic level of operating a motor vehicle, the nature of his offending is such as to demonstrate a marked lack of respect for both the lawful authority that issued a driver’s licence to him in the first place and for the safety of other road users. The Applicant must be surely aware that driving under the influence of alcohol places both his own life and that of potentially numerous others in serious jeopardy. Government campaigns against drink driving have been at the forefront of our community’s consciousness for decades. I cannot accept that the Applicant was not aware of the seriousness of driving whilst under the influence of alcohol. He has clearly not taken heed of long term government messaging about the perils of drink driving.
The totality of his offending leads me to a conclusion that he has not yet developed a demonstrable capacity to distinguish right from wrong. This is probably because he has not had the benefit of independent and genuinely expert rehabilitative assistance in gaining a properly advised insight into the factors causing him to offend as he has.
A further conclusion that I draw is that the cumulative effect of his repeated offending is such that it is clear his offending days – especially in the realm of very serious domestic violence – are not yet over. The remorse he appears to have expressed during hearing does not displace the reality that a lack of rehabilitation could quite realistically see him re-commence his offending were he to be released in the community and, for example, to find himself in another situation of heated domestic argument and economic stricture which he would conceivably try to resolve with his partner by means of violence.
I feel compelled to make reference to sub-paragraph (h) of paragraph 11.1.1 of the Direction. It deals with the question of whether the non-citizen has provided false or misleading information to the Respondent, including by not disclosing prior criminal offending. While I do not rely on this sub-paragraph (h) in a determinative way, it should be noted that the Applicant did not tell the Respondent of the 2009 domestic violence order when providing his lengthy statement to the Respondent’s Delegate.[14] Similarly, in his evidence during the hearing, he was not forthcoming about the 2009 incident comprising the first domestic violence episode until it was put to him by the Respondent’s representative.
[14] See Exhibit 3G Documents, G15, pages 149 – 155.
I am prepared to give the Applicant the benefit of the doubt about any adverse finding pursuant to this sub-paragraph (h) because, strictly speaking, the 2009 incident and the making of a domestic violence order consequent upon it does not, in strictly definitional terms, constitute “criminal offending” as contemplated by that sub-paragraph. The residual reality remains: the Applicant said nothing about it in his statement his original submission to the Respondent’s Delegate and he was coy about it in his evidence at the hearing.
Having regard to (1) an application of the relevant sub-paragraphs of paragraph 11.1.1 of the Direction to the Applicant’s conduct giving rise to his criminal history; (2) taking a longitudinal view of that history and its increasing severity; and (3) the absence of any rehabilitative or other measures identifying and treating the factors predisposing him to offending, I find that the nature and seriousness of the Applicant’s conduct to date is of a very serious nature.
The Risk to the Australian Community should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 11.1.2(1) provides that a decision-maker should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. This part of the Direction provides that if some conduct, and the harm that would be caused if it were to be repeated, is so serious, then any likelihood that it may be repeated should be regarded by a decision-maker as unacceptable.
Sub-paragraph (3) of paragraph 11.1.2 of the Direction provides that in considering the risk to the Australian community, decision-makers must 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 from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
(ii)    Evidence of any rehabilitation achieved by the time of the decision in this matter, 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); and
(iii)    The duration of the intended stay in Australia.
Sub-paragraph (4) of paragraph 11.1.2 of the Direction directs decision-makers to consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.
I am of the view that the totality of the Applicant’s offending conduct, particularly his increasingly serious conduct in a domestic violence context is such as to lower the Australian community’s tolerance for any risk of future harm his offending may cause. The trajectory of his offending and the lack of resolution and/or management and treatment of the factors behind it lead me to the conclusion that were the Applicant to re-offend, the outcome would likely be so serious that any risk of such repetition would be unacceptable to the Australian community.
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
The Applicant gave evidence about involvement in certain counselling sessions while he has been in immigration detention. In a perhaps forlorn effort to explain the dramatic escalation in his domestic violence offending between 2016 (sentenced 2016) and mid-2017 (sentenced early 2018), he spoke of having completed a domestic violence programme after his sentencing in 2016. He told the hearing that while he did attend this programme, he did not learn very much from it because it was in a group setting and he was compelled to attend it. He sought to differentiate the impact of the quasi-rehabilitative programmes he has done since his incarceration for the mid-2017 domestic violence offending on the basis that the latter programmes were voluntary and, apparently because of that, he has found these latter programmes of greater assistance.
While a relatively minor difference between given courses goes nowhere in terms of explaining the dramatic escalation in offending between 2016 and 2017, it is nevertheless necessary to examine exactly what it is the Applicant has done in terms of these courses to ascertain if any weight can be allocated to the Applicant’s submission about whatever benefit he obtained from them and to also weigh any value they may have to the present consideration.
The first of those reports is from a psychologist, namely, Mr Matthew Hand, whose report is dated 16 April 2018.[15] The essential part of the report is this:
I am aware that Mr Paerau is being held in immigration detention, and I am aware that this letter is to be used for the purposes of his appeal against deportation due to a criminal history including Domestic Violence against his partner who he also has three children with. Further, I am aware that Mr Paerau had previously enrolled in group therapy for Domestic Violence which he did not engage well with, this is not unusual as group formats do not always serve the specific needs of each individual in attendance. I am also aware that since Mr Paerau has been in detention, he has voluntarily received individual counselling which he has reported great benefit from. If Mr Paerau’s appeal were successful, he would be able to continue to access individual therapy for his behaviours through the Better Access to Mental Health Care Initiative through Medicare via a Mental Health Care Plan to a Psychologist referred to by his General Practitioner.
[15] Ibid, G19, page 171.

Although well intended, Mr Hand’s report to some extent talks about the Applicant’s relatively scant engagement with rehabilitative therapy but makes no definitive finding of factors in the Applicant’s personality or psychological constitution giving rise to his demonstrated capacity to offend and re-offend. Nor does Mr Hand’s report provide any prognosis or any on-going plan of rehabilitative management and control for those symptoms. Put at its highest, the report tells us that the Applicant responds better to individual therapy than group therapy. Thus, the report is not conclusive and cannot be relied upon in terms of assessing the nature of the harm to individuals or the Australian community should the Applicant engage in other criminal or serious conduct. Indeed, the report does not even reach the initial threshold of providing any detail about the likelihood of the Applicant re-offending, let alone what harm would be occasioned were he to do so.
In his evidence at the hearing, the Applicant also referred to the report of Mr Mark Mahon, Senior Counsellor, Holyoake, Community Alcohol & Drug Service. Mr Mahon’s report is dated 16 April 2018.[16] The relevant portions of the report are as follows:
Gabriel Paerau… has thus far attended three Holyoake Mens Group counselling sessions out of a twelve week programme at the Yongah Hill Immigration Detention Centre.
This group is predominantly alcohol and drug related. Topics covered include: The Process of Dependency; Change; Relapse Prevention and Letting Go; Emotions and Stress; Embarrassment, Guilt and Shame; Personal Boundaries; Communication; Grief and Loss; Family Dynamics and Coping Behaviours; Self-Esteem; Understanding Behaviours; Relationships and Self-Responsibility.
Gabriel consistently contributes and has indicated that he continues to attend the group. He reports that this is a continuation of the AOD training that he has previously undertaken. He attends group with his own resources that he obtained from that previous training.
Gabriel is determined to demonstrate the previous wrong choices do not define his whole character and needs to illuminate the positive aspects of him.
Gabriel has continued access to the services of this agency.
[16] Ibid, G20, page 172.
Again, this report is not definitive about symptoms or factors causative of the Applicant’s propensity to offend. Putting this report at his highest, it goes no further than revealing that the Applicant is in the process of confronting and gaining insight into factors behind his offending such as how alcohol impacts upon his capacity to deal with difficult domestic situations be they disagreements about domestic issues with his partner or his demonstrated lack of self-control when issues of jealousy and insecurity arise around her in a social context. The level of engagement giving rise to this report is only preliminary. No causative factor is identified and no ongoing plan of rehabilitative management and control of the symptoms/factors is described. The report is future-facing. We are told “Gabriel is determined to demonstrate that previous wrong choices do not define his whole character…”. We are also told he “…needs to illuminate the positive aspects of him”. In my view, this report cannot be relied on by the Tribunal to form a view about the nature of any harm were the Applicant to re-offend nor the likelihood of his re-offending. A more reliable report, to which greater weight could be allocated, requires (1) identification of the causative factors behind the offending; (2) an immediate and medium term plan or course of rehabilitative treatment; and (3) the expert’s prognosis of future conduct and hence future risk.
There is a similar and recurrent theme in the Applicant’s evidence where he acknowledges that he has participated in some form of therapy or rehabilitation, some of which he found beneficial, some not. The critical point is that he is yet to do or participate in and get the benefit of expert treatment which, in turn, would spawn the necessary expert evidence to enable this Tribunal to form an assessment on his risk of re-offending. As mentioned earlier, he seems genuinely remorseful. He also seems to have come to the stark and shocking realisation that he could be physically separated from his family were he not to succeed in this application. But those factors cannot overcome the absence of the necessary expert evidence. As he has said “I am more than whole heartedly [sic] willing to undergo any rehabilitation including, (but not limited to) Professional counselling, Self-development classes, Mentoring and any other means and help that is out there”.[17] The difficulty this creates is that it refers to therapy that is yet to occur rather than therapy that has occurred from which expert evidence and opinion can be relied upon.
[17] Ibid, PG15, page 155.
The Applicant’s partner gave evidence at the hearing. In fact, she gave evidence twice (with the agreement of the Respondent’s representative). To her credit, she has found her niche in the sense of employment because she seems to have good and stable employment in the child care industry. Her history of the relationship with the Applicant seems one of constant trouble and disruption peppered with the serious episodes of domestic violence committed by the Applicant. She said when she first met the Applicant in 2009, she thought him a decent and loving man. She also said that problems arose in the relationship after their first child was born in April 2010. Her evidence involved the Applicant arriving home from work after a given work day but due to the stress of the day, they often devolved into small arguments about largely petty things.
They first separated in 2012. She said they would recommence living together and then separate again. She seemed coy about exactly how much time they spent living together and apart but she did report that when his mood was stable, he was a loving father to their children. What is clear – indeed very clear – from the partner’s evidence is that the Applicant becomes a different person, certainly in a domestic context, when he has consumed anything more than a moderate to significant level of alcohol. It is clear from her evidence that both the 2016 and 2017 incidents were committed by the Applicant under the influence of a significant amount of alcohol. This theme of offending while under the influence of alcohol was also behind the initial domestic violence order that was made after she and the Applicant had a night out at a Gold Coast nightclub.
Contrarian though this may sound, it was difficult to find the partner’s evidence compelling with particular regard to the strength or longevity of any relationship she may have had or may in future have with the Applicant. I fully accept her evidence with regard to the good aspects of the Applicant in terms of being a good father to the children, a good worker and a good provider. I also fully accept her evidence when she spoke of how the Applicant has behaved, particularly in 2016 and 2017, when he is under the significance influence of alcohol or intoxicated. But I contrast these compelling components of her evidence with what, if anything, she had to say about her future with him.
I am particularly cautious in receiving evidence from a victim of domestic violence – indeed very serious domestic violence – which purports to have an ameliorative effect on the offending conduct behind it. It is not helpful for the partner to say (as she did at the hearing) that she may have – to the extent she could – directed a forceful hand or arm towards the Applicant or that she pushed him away. The difficulty with that evidence and the reason it has little or no weight is because there is nothing in the contemporaneous material about her doing anything to provoke his domestic violence offending. To the extent that “provocation” can be detected in her evidence, it goes no further than (1) the couple facing the usual the domestic difficulties relating to limited finances and associated pressures; and (2) the Applicant reacting poorly to his feelings of insecurity and jealousy when he was socializing with her.
The unresolved nature of the Applicant’s symptoms giving rise to his propensity to offend and to otherwise fail to moderate his conduct to be respectful of lawful authority causes one to gravitate towards the same conclusion reached by the earlier decision-maker at the Migration and Refugee Division of this Tribunal:
The Tribunal’s concern, however, is not only with the risk the Applicant poses to his former partner but also the risk he may pose to the broader community through his violent behaviour, and to women, given the multiple instances of the Applicant’s engagement in family violence.[18]
[18] Ibid, PG13, page 140 per Senior Member Raif.
I agree with the further finding of the Migration and Refugee Division of the Tribunal as to the more likely motivation between the Applicant’s expression of remorse:
It is not readily apparent to the Tribunal why the Applicant has expressed such a desire [i.e. to seek professional rehabilitative assistance] now and not in the past, when the conduct has occurred for a number of years. The Tribunal is concerned that the Applicant’s expression of remorse and the claimed desire to improve are in response to the possibility of his visa being cancelled rather than reflective of a genuine intent to change.[19]
[19] Ibid, PG13, page 137 per Senior Member Raif.
The question thus becomes what are the factors informing an assessment of the nature of the harm that would likely result from further or other serious conduct by the Applicant? Those factors may be variously factored as thus:
·Limited insight: he says he has developed insight into the nature and harm rendered by his past conduct. The problem with that submission is that it is only he who has formed this view. It is not supported or augmented by independent psychological/ psychiatric evidence;
·Identification of causative factors: there is no identification of exactly what it is within the Applicant’s personality or psychology that causes him to deal with domestic situations in the violent way he has done. Does he have a problem with alcohol that is unresolved? Does he have an unstable mood which is somehow aroused or thrown out of kilter by the consumption of alcohol and/or other substances? Has his conduct got little or nothing to do with ingested substances and does he simply have some kind of mood instability or diagnosable mood disorder?
·Refusal to submit to lawful authority: aside from the Applicant expressing remorse about what he has done and his realization that things could seriously go awry for him were he to not succeed in this application, how can the Tribunal be satisfied that the Applicant has gained any modicum of respect for lawful authority. It is certainly not demonstrated either in his domestic violence/criminal offending or in his traffic history;
·What has he learnt from custodial terms?: I have already referred to the increasing severity of sentences imposed upon him culminating in respective custodial terms in 2016 and 2018. How can the Tribunal be satisfied the Applicant has learnt anything from the imposition of those custodial terms in circumstances where he receives a relatively “light” custodial term in 2016 yet commits a significantly more serious act of domestic violence barely a year later that results in a significantly “heavier” custodial term?;
·His failure to moderate his own behaviour: why should the Tribunal accept his evidence of being a changed person in circumstances where he has not moderated his behaviour in the past despite:
othe efforts of sentencing courts to deter him from future offending via the various sentences imposed upon him;
othe very real, significant and ongoing parental and familial responsibilities he has as, effectively, the leader and main bread winner of a family consisting of his obviously devoted partner and their three infant children aged seven, three and one respectively; and
othe opportunity (prior to either corrective or immigration detention) to engage with genuine rehabilitative expertise, yet failing to do so.
I have had regard to the totality of the Applicant’s history and its escalating level of seriousness. For reasons I have explained, I am of the view that were the Applicant to re-offend in a similar manner, the risk he would pose to either his current or any future domestic spouse or a person within his own circle of family/friends/acquaintances or even a member of the general public, would be very significant. Such harm could result in others suffering anything from minor physical or psychological injuries to much more serious such injuries or, particularly in the case of his partner, death. I am therefore of the view that the potential future harm he may cause to members of the Australian community is very significant.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Sub-paragraph 11.1.2(3)(b) of the Direction requires me to assess the likelihood of the Applicant engaging in further criminal or other serious conduct taking into account available information and evidence in relation to such a risk while also looking for and taking into account any rehabilitation achieved by the time of this decision.
The Respondent has identified[20] several reasons behind a likelihood of there being a significant risk that he will re-offend. I think those reasons are well founded and can, in the context of the evidence, be re-stated thus:
·his offending history is predominantly one of violence – indeed, increasingly severe violence – in a domestic environment. In 2016, the sentencing court must have known the Applicant had issues resolving problems between himself and his partner in terms of their household affairs and inter-personal affairs. This is why that sentencing court ordered that he attend domestic violence counselling as part of a group participation programme. Yet after participating in that programme, he re-offended in a much more serious way resulting in a much more serious sentence. I do not accept his evidence that he did not get anything out of the 2016 counselling sessions because they were done in a group and not on a one on one basis;
·whatever treatment or programme he has undergone while in immigration detention has resolved nothing by way of identifying his symptoms, defining a rehabilitative or treatment programme and laying down a prognosis of how those symptoms – duly managed – will lessen his propensity to offend;
·as discussed earlier in these Reasons, there is no independent or expert evidence before the Tribunal to prove and demonstrate the content of the immediately preceding bullet point paragraph. I have earlier dealt with the respective reports of Mr Hand and Mr Mahon and the limitations inherent in both. The Applicant says he has sought out and engaged “…with mental health nurses whilst in prison;”[21] but apart from this assertion, there is nothing by way of a report from any such health nurse about what sort of treatment/care or instruction was administered;
·the Applicant has been in either corrective or immigration detention since July 2017. Any extent to which he may have been rehabilitated is yet to be tested because insufficient time – indeed no time - has elapsed to observe the Applicant’s conduct in an unsupervised environment within the Australian community. There is thus no time-based measure to test his claims of rehabilitation and to form a genuine assessment of the likelihood of him re-offending.
[20] Exhibit 2, Respondent’s SFIC, pages 8-9, [35].
[21] Exhibit 1, Applicant’s SFIC, page 5, [30].
I have formed the view that the Tribunal cannot be satisfied that the Applicant has taken adequate steps to rehabilitate himself such that there is a low likelihood of him re-offending. Any issues he may have with alcohol (or any other substance) remain unresolved. Any psychological/psychiatric factors within him remain unidentified, untreated and unresolved.
Conclusion: Primary Consideration A
My finding is that for all of the preceding reasons there is a strong and convincing likelihood that this Applicant will engage in further serious conduct, most likely domestic violence offending, if returned to the Australian community. I am also of the view that it is quite likely any harm occasioned to others in the event of him re-offending would be both substantial and serious and, quite conceivably, at least of the same level of severity that his offending has demonstrated to date. In consideration of all of the relevant factors contained in the Direction, I find that Primary Consideration A weighs heavily in favour of refusing a grant of the subject visa sought by the Applicant.
Primary Consideration B: The Best Interests of Minor Children in Australia
Paragraph 11.2(1) of the Direction compels a decision-maker to make a determination about whether refusal is, or is not, in the best interests of a child who may be affected by a refusal to grant the subject visa sought by the Applicant. Paragraphs 11.2(2) and 11.2(3) respectively contain further stipulations. The former provides that for their interests to be considered the relevant child (or children) must be under 18 years of age at the time when the decision to refuse to grant the visa is expected to be made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Applicant and his partner have three minor children, all daughters, respectively aged seven, three and one. Thus the provisions of paragraphs 11.2(1)-(3) of the Direction are activated. I am therefore required to make a determination about whether a refusal to grant the subject visa is, or is not, in the best interests of the three children.
Paragraph 11.2(4) of the Direction sets out a number of factors that must be taken into account when assigning weight to this consideration. Relevantly, some of those factors include:
·the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where there have been long periods of absence, or meaningful contact (including whether an existing court order restricts contact);
·the extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18);
·the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;
·the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
·whether there are other persons who already fulfil a parenting role in relation to the child;
·any known views of the child (with those being given due weight in accordance with the age and maturity of the child);
·evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect;
·evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
I take issue with the Respondent’s contention that this consideration does not weigh in the Applicant’s favour and is, at best, neutral.[22] The Respondent makes an earlier concession that this consideration should be given “limited weight”.[23] Clearly, weight should be afforded to this Primary Consideration, the question is how much. There can be no meaningful submission against the reality that the Applicant’s children will be impacted by an adverse decision against him. As is often the case in applications of this type involving incarcerated or detained applicants, the reality of the children being affected must be tempered by the unavoidable reality that his family unit has been impacted while in one form of custody or another. I also note (but not in a determinative way) that there have been not insignificant periods of separation between the Applicant and his partner.
[22] Exhibit 2, Respondent’s SFIC, paragraph 40, page 10.
[23] Ibid, paragraph 39, page 10.

I will now turn to an application of the abovementioned factors appearing at paragraph 11.2(4) of the Direction. Sub-paragraph (a) refers to the nature and duration of the relationship between the children and the Applicant. The Applicant’s partner has given evidence about the Applicant’s role as a loving and caring father. Even during the periods of separation between them, she says he has continued to financially provide for her and the children. This is, of course, to the credit of the Applicant. As against that, there is a limited amount of evidence regarding the specific nature of the care and parental guidance that the Applicant has provided to the children. In the absence of employment that the Applicant could walk straight back into were his visa to be granted, responsibility for the children would, to a significant extent, devolve to him because the partner, as mentioned earlier, has found apparently stable work in the child care industry that consumes a significant portion of her working week.
In the context of the lives of the three children, particularly the two youngest children, the Applicant’s periods of absence from them due to his placement in either corrective or immigration detention, is, to my mind, particularly telling. He was held in corrective detention from 1 July 2017 until 8 February 2018. He was then immediately taken into immigration detention on 8 February 2018 where he remains. He is approaching a period of 16 months in custody and away from the children.
The youngest child was born in May 2017. The Applicant has been in custody for virtually the entirety of her life thus far. The middle child was born in September 2015. He has been in one form of custody or another for over 43% of her life thus far. As noted by the partner, it is not certain whether she and the Applicant were still living together at the time the middle child was born.[24] The eldest child was born in April 2011. The Applicant has been in one form of custody or another for almost 20% of her life thus far. Again, there is evidence from the partner that she and the Applicant had separated in 2012 when the eldest child was about one year old.[25]
[24] Exhibit 3, G Documents, G16, page 156.
[25] Ibid.
I take into account the content of Exhibit 4 which comprises a visitation history relevant to the Applicant during his period of corrective detention from July 2017 until February 2018. It records something in the order of 34 visits made to him while in prison, many of which were by his children. Prison visits are one thing but they cannot be a substitute for either the Applicant’s being in the family home to be physically present with the children (assuming the relationship between him and his partner is still current) or, in the alternative, pursuant to some properly defined parenting plan (assuming the relationship between him and his partner were not current).
Having regard to the abovementioned evidence about this sub-paragraph (a), I am of the view that this factor is of progressively less relevance commencing from the youngest child to the eldest child. This is because, of course, the Applicant has been out of the lives of the two youngest children to a much more significant extent than is the case with the eldest child. Accordingly, the nature and duration of the relationship between the Applicant and the three children, especially the two youngest children, is not a factor militating, to any significant extent, in favour of granting him the visa he seeks on the basis that it would be in the best interests of the children to do so.
Sub-paragraph 11.2(4)(b) points a decision-maker to an assessment of the extent to which the Applicant is likely to play a parental role in the future, taking into account the length of time until the children turn 18. It is unclear to me exactly what kind of positive future parenting role the Applicant will play in the lives of the children. I have previously recorded my misgivings about the evidence of the partner to the extent it can be relied upon specifically about the strength and longevity of her domestic relationship with the Applicant. It is peppered with periods of separation. It also features repeated acts of domestic violence by him against her who, of course, is the mother of the subject children.
The unreliability of the partner’s evidence about the exact current nature and prospects of her relationship with the Applicant leads one to a finding along the lines of that expressed by the Migration and Refugee Division of this Tribunal:
There is no evidence that the Applicant’s relationship with his former partner has resumed, even though the applicant claims he hope [sic] to reconcile. Given the history of the relationship that may or may not happen. While undoubtedly the Applicant will have better opportunities to visit his children and spend time with his children if he remains in Australia, there is no suggestion that the Applicant intends to return to the family home or that plans have been made for that to happen in the immediate future. The evidence before the Tribunal is that the Applicant will live with his sister if released from detention. That is, any level of personal contact the Applicant would have with his children would be limited.[26]
[26] Ibid, PG13, pages 141-142.
The children have, between them, a cumulative period of 43 years before they are each over 18 years of age. Given (1) the unresolved nature of factors predisposing the Applicant to offend and my finding of a significant likelihood that he will re-offend; (2) the lack of clarity about the nature of the relationship between the Applicant and his partner; (3) if the relationship is not current, the absence of any formal parenting orders or parenting plan in relation to the children; and (4) the absence of any evidence of the parenting role played by the Applicant in the lives of the children thus far, it is difficult to ascertain the extent of any positive parental role the Applicant is likely to play in the lives of the children until they attain the age of 18 years.
Having regard to the totality of the Applicant’s role in the lives of the three children thus far, I have both a difficulty and hesitation in positively applying this factor (b) to any consideration of whether granting the subject visa sought by the Applicant is in the best interests of the children.
Sub-paragraph 11.2(4)(c) involves an assessment of any negative impact of the Applicant’s prior conduct, and any likely future similar conduct, on the children. I do not recall anything in the evidence suggestive of the Applicant’s acts of domestic violence in 2016 and 2017 having occurred in the presence of the children. Be that as it may, I concur with the comments of my colleague in the Migration and Refugee Division of this Tribunal when she observed that “…it is not in the best interests of the children to experience, observe or be present in a relationship that is affected by violence.”[27]
[27] Ibid, PG13, page 142.
Whether or not the domestic violence occurred in the direct presence of or within earshot of any or all of the children, the Applicant’s prior conduct has had a negative impact on their lives because it has caused him to be removed from respective significant portions of each of their lives. The corollary of this finding is that were he to re-offend, then such future conduct would likewise have an adverse impact on the children. As to how this negative impact would materialize, one need look no further than what has occurred in the past. Were he to re-offend, there is little or no doubt that any sentence would involve a still more significant custodial term than what has been imposed upon him thus far. Although ultimately a matter for the partner, one cannot imagine extending her levels of endurance towards this sort of violence were it to occur again. Thus, one would expect she would draw a line beneath the relationship between her and the Applicant. Both of these developments would adversely impact the children.
It is clear the Applicant’s prior conduct has adversely impacted on the lives of the children. I am of the view that on present evidence, it is likely he will re-offend and in a serious way. I therefore cannot apply this sub-paragraph (c) in any positive way such that granting the Applicant the subject visa would be in the best interests of the children.
Sub-paragraph (d) of paragraph 11.2(4) of the Direction requires an assessment of the likely effect any separation of the children from the Applicant would have on them, taking into account the Applicant’s ability to maintain contact with his children in other ways. I take into account the partner’s evidence about the positive aspects of the Applicant as a father to the children. Even when the Applicant and his partner are not living together, there seems to be little or no friction between him and her about his time with the children. Although she did not explicitly express it in her evidence, I have every expectation that she would facilitate real time contact between the Applicant and the children via Skype and other digital platforms were he compelled to leave Australia.
While not conceded by the Respondent, it is reasonable to conclude that were the current regime of separation between the Applicant and the children to be maintained as a result of not granting the subject visa to him, it would result in certain adverse effects on the children. Accordingly, I am of the view that this factor (d) would, to an extent, militate in favour of granting the visa sought by the Applicant.
Sub-paragraph (e) of paragraph 11.2.4 of the Direction poses the question of whether there are persons who already fulfil a parental role in relation to the children. Even a cursory view of the evidence indicates that this is clearly the case. The three children reside with their mother and she fulfils the role of parent and primary caregiver. The hearing also received evidence from the Applicant’s two sisters, and his mother. While the totality of their evidence was not of great value, it was possible to glean that both of his sisters and his mother can and do provide assistance to the partner in terms of caring for the children. The Tribunal also heard evidence from the partner’s brother. The sum total of the evidence received from both sides of the Applicant’s family is indicative of an extended family that remains close and supportive towards his partner and the three children and would readily provide assistance to her in relation to the children as and when it may be required.
There is clearly another person – the children’s mother – who already fulfils a parental role in relation to the children. She appears to have the support of her brother, at least two sisters of the Applicant and the Applicant’s mother in that role. Accordingly, this factor (e) does not militate against the best interests of the children if the Respondent’s decision to refuse the requested visa remains undisturbed.
Sub-paragraph (f) of paragraph 11.2(4) requires me to consider any known views of the children about their separation from the Applicant having regard to their age and maturity. the partner has referred to taking the eldest child to a psychologist because she was worried of the apparently adverse effect the Applicant’s absence was having on her. According to the partner, the eldest child had her first appointment with the psychologist in late April of this year with a follow-up appointment in May.[28] There is no report from the treating psychologist detailing the symptoms, their impact and a likely prognosis in relation to the eldest child. Accordingly, little or no weight can be allocated to this evidence.
[28] Ibid, PG16, page 159.
In perhaps an indirect way, the Tribunal can glean from the abovementioned prison visitation records[29] that the children are missing their father because they felt motivated enough to visit him on the occasions indicated in those records. In addition, the material discloses written and drawn messages one usually sees from infant children towards an absent parent, especially one in custody.[30] The evidence in relation to any or all of the children is entirely subjective and, technically, heresay, because it comes from their mother. The further difficulty is that the three children are of a very young age and any views they were to express now could not be relied upon with any level of certainty especially in circumstances those views are not vetted and provided by an independent and suitably trained expert.
[29] See Exhibit 4.
[30] See Exhibit 3, G Documents, G27, pages 194-204.
I have little or no doubt that the views of the children are oriented towards having their father return home to be with them. However, the totality of the evidence with regard to this factor (f) is such as to caution against any application of this factor in favour of a finding that the views of any or all of the children warrant a positive application of this factor (f) to grant the visa sought by the Applicant.
Sub-paragraph (g) of paragraph 11.2(4) compels a decision-maker to look for evidence that the non-citizen has abused or neglected the children in any way. There is no evidence of deliberate, intentional or wanton abuse of the children by the Applicant. I will not afford any weight to this factor.
Sub-paragraph (h) of paragraph 11.2(4) compels a decision-maker to look for evidence that the children have suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct. I could not recall or locate any evidence to this effect in relation to the youngest and middle child. For reasons stated in relation to my consideration of sub-paragraph (f), I cannot allocate any level of weight to the partner’s evidence that the eldest child has been taken to a psychologist.
In relation to the youngest child, the partner has said that “I am worried that if [the Applicant] is forced to leave Australia [the youngest child] might have problems if she never really gets the chance to know her father.”[31] For similar reasons to the evidence his partner has given about the oldest child seeing a psychologist, it is difficult for me to allocate any level of weight to this evidence about the youngest child. It should also be borne in mind that the youngest child is one year old. Having regard to the totality of the evidence in relation to this factor (h), I am of the view that it is of little or no weight to my consideration and is not determinative of any finding about Primary Consideration B.
[31] Ibid PG16, page 159.
Conclusion: Primary Consideration B
I find that the best interests of the Applicant’s minor children in Australia is a consideration that weighs slightly in favour of granting him the visa he seeks. However, the finding can go no higher than that. I have only allocated any realistic level of weight to one of the factors in paragraph 11.2(4) of the Direction that governs a decision-maker’s consideration of this Primary Consideration B.
Any evidence about the children largely comes from the partner and is not endorsed by any expert or similar evidence addressing any of the factors in paragraph 11.2(4). I am therefore of the view that the best interests of the Applicant’s minor children only weigh slightly in favour of the Applicant.
Primary Consideration C
The final primary consideration relates to the expectations of the Australian community. In making this assessment, paragraph 11.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to the Government’s views in this respect. Paragraph 11.3(1) of the Direction directs a decision-maker to endorse the refusal of a visa as an appropriate finding simply because the nature of an applicant’s offending is such that the Australian community would expect that they should not hold a visa.
For the purposes of considering the present matter, the essential question with respect to this Primary Consideration C is surely whether the Australian community, as a whole, would expect that a non-citizen with the Applicant’s history of offending – particularly his domestic violence offending, his lack of engagement with the rehabilitation process and his consequential lack of insight into that offending, should be granted the visa he seeks and thus be allowed to be in Australia. Each offender’s criminal history and circumstances of offending is, of course, different. In deciding matters such as this, the question of whether this Applicant should retain the right to remain in Australia is most clearly answered by reducing it to a series of components that can be properly understood and assessed.
I think the essential question posed by paragraph 11.3(1) of the Direction may be stated thus: would the Australian community expect the Applicant to be granted a visa to remain in Australia in circumstances where:
·He arrived in Australia in 1998 aged 7 years, commenced a relationship with his partner in 2009 aged approximately 18 years, committed his first act of domestic violence in 2009 and then found himself before the criminal courts in Australia on a number of occasions from July 2014 until February 2018;
·The increasing nature of seriousness inherent in his offending has caused him to be the subject of the imposition of lawful authority on the following dates and for the following offences on each of those dates:
oNovember 2009 - domestic violence order;
oJuly 2014 – burglary; entering premises to commit an indictable offence; possessing a utensil for the consumption of an illegal substance; failing to appear;
oFebruary 2016 – breach of bail; stealing; contraventions of a domestic violence order; assaults occasioning bodily harm; obstructing a Police Officer; and
oFebruary 2018 – one count of strangulation in a domestic violence setting; one count of contravention of a domestic violence order with a circumstance of aggravation.
·He has been in either corrective custody or immigration detention on a continuous basis from July 2017;
·For the four year period of his criminal history running from July 2014 to February 2018, the sentencing courts have imposed a cumulative custodial period of 32 months – a period approaching 3 years. As mentioned earlier, the seriousness of his offending has been such that the sentencing authorities have considered his offending worthy of punishment by way of custodial terms for almost 71% of his four-year criminal history;[32]
·There is no medical or other independent expert, either (1) identifying or diagnosing the factors giving rise to the Applicant’s propensity to offend; or (2) defining a regime of treatment and remedial management of those factors such that the Tribunal can be satisfied that the Applicant is not likely to further offend. Put another way, the Applicant’s issues with alcohol and anything else in his psychological profile remain unidentified, unresolved and untreated. There is no certainty that he will not offend in future, and if he does, that his offending will be any less violent and dangerous than it already has been.
[32] That is, in the form of head sentences.
I am mindful of the elements necessary to be balanced in any proper consideration and application of this Primary Consideration C to the present factual matrix. Since the early 2000s, Courts and Tribunals have been defining formulae designed to assist a decision maker in reaching decision that accords with the expectations of the Australian community.
As a general proposition, Deputy President Block, in 2003, said that one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[33]
[33] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].

Of course, the passage of time informs and even alarms any reasonable member of the Australian community. Times and circumstances change, which sometimes spawns an alteration in the community’s apprehension of how a specific statutory power ought be applied. The community’s tolerance of domestic violence has – through concentrated and intense community and media campaigning – definitely become lower in the course of the last decade. Its effect on how Courts and Tribunals have sought to apply s 501 of the Act (and more particularly with reference to the community expectations component described in paragraph 11.3(1) of the Direction) is palpable, particularly in more recent decisions.
Deputy President Forgie of this Tribunal considered the Australian community’s expectations as part of her consideration of paragraph 11.3(1) of the Direction.[34] In ETWK and Minister for Immigration and Border Protection, Deputy President Forgie said:
102… conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) [the equivalent paragraph in the Direction for the present consideration is 11.3(1)] is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…
…
103. Although ultimately a matter for judgement, the facts on which that judgement is made must be on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgement that is ultimately made by a decision-maker must be able to be explained.
[my underlining]
[34] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Mortimer J in YNQY v Minister for Immigration and Border Protection:[35]
In substance this consideration is adverse to any Applicant…In particular, the last two sentences of para 13.3 [for present purposes, paragraph 11.3(1)] of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any Applicant who has failed the character test and has been convicted of serious crimes.
[my underlining]
[35] [2017] FCA 1466 at [76]-[77].
The learned Mortimer J went further, and thought the last two sentences of paragraph 11.3 of the Direction:
…[are] not a consideration dealing with any objective or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the Executive Government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the Applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do.
[my underlining]
In Afu v Minister for Home Affairs,[36] Justice Bromwich said:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.
[36] [2018] FCA 1311 at [85].
The resulting question is whether an informed and reasonable member of the Australian community would consider that the Applicant has been adequately punished by the imposition of custodial terms for his repeated offending – especially his very serious domestic violence offending – such that he should not now be allowed to remain in this country.
I cannot come to that conclusion in light of my findings as to:
(i)The very serious nature of his offending and its undeniable trend of increasing seriousness, especially between 2016 and 2017 (sentenced 2018);
(ii)His demonstrated refusal to accept and submit to lawful authority. This is evident from several aspects of his offending profile, including, but not limited to, his various breaches of domestic violence orders and other lawful requirements imposed upon him, be it in the form of a grant of bail;
(iii)His ready recourse to very serious violence as a means of resolving a problem or impasse presented to him in a domestic setting;
(iv)My respective findings as to (a) the very serious nature of his offending to date; (b) the likelihood that he will re-offend; and (c) if he were to do so, the resulting harm would be both substantial and serious;
(v)His failure to moderate his behaviour in circumstances where (a) the sentencing courts have sought to deter him from further offending; and (b) the reality that he is the main bread winner of a family consisting of himself, his devoted partner, and their three infant children aged seven, three and one respectively;
(vi)A virtual absence of any participation in a rehabilitative process, with only some unconvincing submission that the process he undertook following the 2016 sentence was not effective enough because it was done in a group environment and not on a one on one basis;
(vii)The comments of the learned Justices Mortimer and Bromwich and Deputy President Forgie about how a decision-maker ought to apply paragraph 13.3 of the Direction , which is of course the parallel provision to paragraph 11.3.
I therefore find that the Australian community would consider that this Applicant has breached the trust they have placed in him to obey Australian laws while in Australia. Accordingly, I find that the Australian community would not consider it appropriate that the visa the Applicant seeks should not be granted.
At the hearing, the Applicant spoke of wanting to return to the community to, in effect, prove himself both to his own immediate family and in the community more broadly. Does he deserve such an opportunity? The answer depends on the circumstances of his case to be considered in light of the overriding purpose of the legislation.[37]
[37] See Allan and Minister for Immigration and Border Protection [2016] AATA 1077 at [65] per Senior Member Toohey.
The Applicant has a criminal history running for four years. It has become progressively more serious and it has only stopped as a result of him being placed in either corrective custody or immigration detention. That is the stark reality of his offending history that cannot be denied. Similarly, the increasing severity of his offending cannot be denied and is reflected in the increasing severity of custodial sentences that have been imposed upon him.
In terms of remunerative employment, he has not been entirely dilatory while in Australia. His work history may be summarised thus:
·While in Year 11 at school, he found a job with KFC at Beenleigh and remained in that employment for 18 months;[38]
·Approximately a year later, he found employment doing pop riveting work at Steel Framings at Yatala and remained in that role for about 2½ years;[39]
·He then commenced work with VIP Pet Foods as a process worker at Ormeau. He became a machine operator and pick and packer and eventually rose to the level of second-in-charge. He remained employed at VIP Pet Foods for about five years;[40]
·In 2014, he found employment with the GPO Bar and Nightclub and was eventually promoted to work as a bartender. This employment saw him working every weekend from Friday night until Sunday morning. He remained in this role until he was taken into custody on 1 July 2017;[41]
·From January 2016, he found work at Burndy Cable Support Systems as a metal folder and packer. His work at Burndy required him to work from Monday to Friday and he then went to his job at the GPO from Friday night to Sunday morning. This was the Applicant’s work modality until he was taken into custody on 1 July 2017.[42]
[38] Exhibit 3, G Documents, PG15, p 150.
[39] Ibid.
[40] Ibid.
[41] Ibid, pages 150 – 151.
[42] Ibid, page 151.
At the hearing, the Operations Manager of Burndy Cable Support Systems, Mr Karl Devoney, gave certain evidence. The evidence, although well intended, was not very instructive or helpful. Mr Devoney spoke of the Applicant being a conscientious and diligent worker who did not create problems in the workplace. Mr Devoney did not appear to have any detailed knowledge of why the Applicant had to cease working other than to say he had been told that it was “due to an external issue”. When asked about whether a job would be available for the Applicant at Burndy were he to be released back into the community, Mr Devoney replied in the negative.
In the written material, there is a letter of support from Camilo Martinez[43] provided on behalf of the GPO Bar and Nightclub. Mr Martinez says the Applicant performed his allocated tasks “extremely well” and that he was assigned to a supervisory role after completing his work experience requirements. Mr Martinez adds that the Applicant “…proved to have a great work ethic and … He showed great commitment which led [him] to be promoted as a bartender and soon after as a supervisor”. Mr Martinez was not called to give oral evidence at the hearing. His letter of support does not disclose whether or not Mr Martinez is aware of the reason for the Applicant no longer working at the GPO Bar and Nightclub nor does it say anything about a position being available for the Applicant were he to be released back into the community.
[43] Ibid, PG18, page 164.
In my view, the totality of the evidence around the Applicant’s employment life and history is indicative of him being sufficiently diligent to appreciate the serious requirement upon him to derive an income to support his family. It is not indicative that he is readily employable in any particular field or that a job is otherwise waiting for him were he to be released back into the community.
The Applicant’s work history and the positive evidence the Tribunal has heard and received about his role as a father and provider is significantly overshadowed by his offending, particularly during the period 2014 – 2018. The increasing level of seriousness of his offending effectively removes any guarantee that were he to again find remunerative employment, he would cease and desist from his offending ways.
I have taken into account that each of his partner, her brother and the Applicant’s mother and his two sisters have spoken favourably of him. I note that a further witness, for all intents and purposes, a family friend has done likewise. It would be trite to surmise that the Applicant has made absolutely no contribution to both his family and the Australian community during his time here. However, none of his lay witnesses spoke with any conviction or certainty that he would not reoffend. I found the partner’s evidence about the currency and longevity of her relationship with the Applicant to be unconvincing and, on the whole, unimpressive.
My greatest concern arising from the factual circumstances of this matter is that the issues giving rise to this Applicant’s propensity to offend remain unresolved. His previous offending has been so serious that the only prediction one can make about the likelihood of his offending in future is (1) that he indeed is likely to reoffend; and (2) if he does, the consequences will most likely be very serious. In these circumstances, I am of the view that the Australian community would consider that this Applicant represents an unacceptable risk of breaching the trust it reposed in him when he first came here.
The Applicant speaks of having a chance to re-establish his life back in the Australian community. He has had those chances, be it in the form of initially less harsh sentences and by way of a loyal, loving and forgiving partner, together with a supportive immediate and extended family. He has ignored each of those chances, opportunities and responsibilities and actually conducted some of his most serious offending after he had experienced the benefit of those elements. I am of the view that a reasonably minded member of the Australia community would conclude that there is little more that our community can do for him.
I therefore do not consider that the Australian community would be prepared to give this Applicant a chance to be released from immigration detention and to resume his life here.
Conclusion: Primary Consideration C
Having regard to this Primary Consideration C, I find that the community’s expectations in respect of this Applicant would endorse an affirmation of the decision under review – specifically, that the Respondent’s Delegate has rightly refused a grant of the visa sought by the Applicant. I accordingly find that this Primary Consideration C weighs in favour of him not holding a visa to remain here.
Other Considerations
There are four “other considerations” disclosed at paragraph 12(1) of the Direction. I address each in turn.
(a) International Non-Refoulement Obligations: I cannot recall any evidence that this other consideration is of relevance in determining this application.
(b) Impact on Family Members: there is a ready acknowledgement by the Respondent “…that there would be some impact on the Applicant’s immediate family members if the visa was refused.” Further, “The Respondent contends that this [other] consideration weighs in favour of the Applicant, but should only be given limited weight and is not outweighed by any of the other considerations weighing against refusal.”[44] I concur with both the Respondent’s concession about this other consideration including weight to be allocated to it in the determination of this application. I have previously given my views and reasons about the level of weight that should be attached to the impact on the Applicant’s three children were the subject visa not granted to him. I can take that discussion no further. I also note he has an appreciable number of family members residing in Australia. They comprise his partner, his parents, two brothers and four sisters, as well as his children. He also has two cousins who reside here.[45] Having regard to the totality of the evidence in relation to this other consideration (b), I am of the view that the impact of visa refusal on his immediate family members in Australia is a factor that weighs in favour of the Applicant being granted the visa he seeks.
[44] Exhibit 2, Respondent’s SFIC, page 12, [47].
[45] Exhibit 3, G Documents, PG25, page 186.
(c) Impact on Victims: while there are no doubt obvious victims of the Applicant’s offending such as his partner as a result of his very serious domestic violence offending and the victims of the Applicant’s burglary/stealing, for which he was ordered to pay restitution in the sum of $6,500, there is nothing by way of a Victim Impact Statement (or equivalent) from any victim of his offending. The Respondent did not call any evidence about the impact the Applicant’s continued presence in Australia would have on his victims. In the absence of such evidence, it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact this would have on the Applicant’s victims. Accordingly, I find that this factor does not attract any weight either in favour of, or against, the granting of the visa sought by the Applicant;
(d) Impact on Australian business interests: I cannot recall any evidence that this other consideration is of relevance in determining this application. For the sake of completeness, I note paragraph 12.4(1) of the Direction provides that this other consideration only carries weight where removal of an applicant from a given employment scenario would significantly compromise the delivery of a major project or delivery of an important service to Australia. There is no such evidence before the Tribunal in this matter.
Conclusion: Other Considerations
The application of the Other Considerations mandated by paragraph 12(1) of the Direction can be summarized as follows:
(a)International non-refoulement obligations: not relevant;
(b)Impact on family members: weighs in favour of the Applicant;
(c)Impact on victims: not relevant due to an absence of evidence;
(d)Impact on Australian business interests: not relevant.
CONCLUSION
I have had regard to the considerations referred to in the Direction. Primary Consideration A weighs heavily in favour of refusing the visa. Primary Consideration B weighs slightly in favour of the Applicant. Primary Consideration C weighs in favour of refusing the visa. Of the Other Considerations, only Other Consideration B (Impact on Family Members) weighs in favour of the Applicant while the remaining Other Considerations have no application and/or are otherwise of no weight. I do not consider that Other Consideration B even when combined with Primary Consideration B, outweigh Primary Considerations A and C. Accordingly, a holistic view of the considerations (both Primary and Other) in the Direction favours exercise of the discretion in favour of refusing the visa sought by the Applicant.
I revert to the two stages of the enquiry applicable to determination of this application:
(a)First, I am satisfied that the Applicant has not discharged the onus to demonstrate that he passes the character test;
(b)Second, I am of the view that the discretion to refuse to grant the Bridging Visa E (Class WE) pursuant to s 501(1) of the Act should be exercised such that the subject visa should not be granted.
DECISION
The decision under review is affirmed.

I certify that the preceding 133 (one hundred and thirty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

..........................[sgd]..............................................
Associate
Dated: 15 November 2018

Dates of hearing: 24 October and 1 November 2018

Applicant: By video-link

Advocate for the Respondent: Matthew Hawker

Solicitors for the Respondent: Sparke Helmore

[2018] AATA 4257

15 November 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Dates of hearing:	24 October and 1 November 2018
Applicant:	By video-link
Advocate for the Respondent:	Matthew Hawker
Solicitors for the Respondent:	Sparke Helmore