Pessoa Firme and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Pessoa Firme and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 773 (12 April 2024)
Division:GENERAL DIVISION
File Number: 2024/0364
Re:Kaio Allony Pessoa Firme
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Rebecca Bellamy
Date of decision: 12 April 2024
Date of written reasons: 18 April 2024
Place:Brisbane

On 12 April 2024, the decision under review was affirmed. These are the written reasons for that decision.
.................................[SGD].................................
Senior Member R Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class EN subclass 186 Employer Nomination Scheme visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – multiple serious violent offences including family violence – insufficient evidence of rehabilitation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Minister for Home Affairs v Buadromo [2018] FCAFC 151
SECONDARY MATERIAL
Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member R Bellamy
18 April 2024

The Applicant is a 24 year old citizen of Brazil who came to Australia in 2009 when he was 10 years old. His Class EN subclass 186 Employer Nomination Scheme visa (“visa”) was cancelled due to his criminal offending and he asked the Tribunal to revoke that cancellation.
Section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) relevantly provides that the Minister must cancel a visa that has been granted to a person if:
·the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a), on the basis of paragraph (7)(a), (b) or (c); and
·the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Under s 501(6)(a) of the Act, a person will not pass the character test if they have “a substantial criminal record”. Section 501(7)(c) of the Act relevantly provides that a person has a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”. On 23 March 2023, the Applicant was sentenced to imprisonment for two and a half years. On 19 May 2023, while he was serving that sentence, a delegate of the Minister (“the Respondent”) mandatorily cancelled his visa because he did not pass the character test and he was serving a full-time custodial sentence.
The Applicant subsequently made written representations to the Respondent requesting revocation of visa cancellation (“revocation request”). Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act which provides:
The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
On 19 January 2024, the Respondent notified the Applicant of a decision not to revoke the cancellation. The Applicant lodged an application in this Tribunal for review of that decision. The Tribunal has jurisdiction to review the decision pursuant to s 500(1)(ba) of the Act.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act and that he does not pass the character test. Thus, the sole issue is whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa. If there is, I should set aside the original decision.[1]
[1] Minister for Home Affairs v Buadromo [2018] FCAFC 151.
The hearing of this application took place in person on 2 and 3 April 2024. The Applicant, his partner, his mother, and Dr James Freeman gave evidence. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
There were some questions asked in re-examination of the Applicant that I did not allow as they went outside what was raised in cross examination. While the Tribunal is not bound by the rules of evidence, it does have to operate efficiently and to afford both parties procedural fairness. The Applicant made a comprehensive statutory declaration, and he was given relatively wide scope in his oral evidence, often digressing and giving evidence in the narrative form, so I am satisfied that he was afforded a reasonable opportunity to put forward his case.
Determination of Whether There is Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In applying s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) applies.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several guiding principles. Those principles, as far as they relate to this matter, may be summarised as follows:
·Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
·Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
·The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
·Australia generally may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
·Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account. They are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)strength, nature and duration of ties to Australia;
(4)best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. They are:
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on victims; and
d)impact on Australian business interests
Neither party contended that Other Consideration (a) attracted weight in this matter, and I agree. For completeness, I note that affirming the decision means that:
· the Applicant will be liable to removal from Australia as soon as reasonably practicable,[2] and the only foreseeable matter that would delay his removal is an appeal against the decision; and
· he will not be able to apply for another visa while in Australia (with the exception of a protection visa or a Bridging visa).[3]
[2] Sections 189 and 198 of the Act.
[3] Section 501E of the Act
This is an obvious and predictable outcome. It is exactly how the legislative scheme is intended to work. Such an outcome does not attract any weight for or against the Applicant.
There is no evidence before the Tribunal with respect to the interests of any victims of the Applicant’s offending, so Other Consideration (c) attracts no weight. It was not contended that any Australian business would be impacted by the decision in a way that would warrant the allocation of weight under Other Consideration (d), and the evidence does not suggest that either, so this Other Consideration is neutral.
I may take into account other matters that are relevant to whether there is another reason to revoke the cancellation of the Applicant’s visa.
Paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations, and paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.
BACKGROUND
The Applicant was born in August 1999 in Brazil. His parents separated, and he was placed in the care of his paternal grandparents, when he was around seven months old.[4] Around that time, his mother commenced a relationship with another man, Mr O. The Applicant and his older brother spent some weekends with his mother and occasional weekends with his biological father. However, he recalls that his father had no time for him.
[4] Transcript, page 77, lines 5 to 16.
There appears to have been some physical abuse in the Applicant’s childhood, although the details are unclear. In December 2023, he reported to Dr James Freeman, forensic psychologist, that he was raised by his grandparents in a stable environment devoid of physical or emotional abuse.[5] However, in a statutory declaration he made in January 2024, he said he was a naughty child, and he was disciplined with physical punishment a lot by his parents, grandparents and an aunt.[6] He recalled that his mother reacted to him falling off his bike and hurting his knee by beating him all over his legs, bottom and back with an aloe vera leaf, and that he received beatings like that every week.[7] In the hearing, he said, about his parents in that period, “I don’t have any good memories with them”.[8] He also recalled his grandfather hitting him with a belt or a stick for being naughty[9] which the Applicant saw as discipline rather than anything bad. He recalled getting into fights at school and witnessing violence at the pub his grandfather owned.[10] He thought the violence in his childhood had an impact on him.
[5] Exhibit G, G-Documents, G16, page 250.
[6] Exhibit G, G-Documents, G16, page 205.
[7] Ibid.
[8] Transcript, page 12, lines 29 to 31.
[9] Transcript, page 11, lines 9 to 16.
[10] Transcript, page 10, line 46 to page 11, line 4.
In 2004, the Applicant’s mother and Mr O had a daughter, Ms L, who lived with them. In 2007, that family moved to Australia so Mr O could take up a job opportunity. The Applicant did not recall hearing from them after they moved to Australia, although his mother recalls briefly saying hello when she telephoned his grandparents to check in on him. In 2008, the family sent for the Applicant’s older brother and in June 2009, a family friend accompanied the Applicant to Australia. He joined the rest of his family in Rockhampton. For around 12 months before he left Brazil, he was living with an aunt as his grandfather was sick. The Applicant’s mother and Mr O had another daughter, Child Y, in 2015. It was not disputed, and I accept, that the Applicant was neglected and abandoned by both his parents when he was young, and he felt it.
Once in Australia, the Applicant enjoyed school and he had a lot of friends. He also enjoyed being able to go out to skate parks and the like.[11]
[11] Transcript, page 13, lines 32 to 40.
When the Applicant was approximately 11 years old, he was sexually abused on two separate occasions by a different older boy on each occasion. He felt ashamed and he did not have the kind of supportive relationship with anyone where he felt he could disclose the abuse, so he told no-one.
In the Christmas holidays of 2011, the Applicant and his family visited Brazil. He stayed with his grandmother who was living with his aunt (a different aunt to the one he previously stayed with) after his grandfather passed away. He also spent some time with his biological father.
At around 13 years of age, the Applicant started using marijuana. He was offered it at skate parks, and it made him feel good and confident. Now, looking back, he thinks he used drugs and later alcohol to suppress the emotions and trauma from the sexual abuse.
When the Applicant was 14 years old, his family again spent the Christmas holidays in Brazil, and he again stayed with his grandmother and biological father. He did not use drugs in Brazil because they were not available to him. In addition to this, he said it was not a struggle to be completely off drugs because it was nice to see his family, and it was good to be around his grandmother, spending time with her and enjoying her cooking. It was like a coping mechanism that he switched to while he was there. He was enjoying his holiday, and the sexual abuse was not on his mind.[12]
[12] Transcript, page 57, line 10 to page 58, line 8.
At around 14 or 15 years of age, which would have been in 2013 or 2014, the Applicant started going to parties with friends that he met though soccer, the skate park and other places. He became a heavy drinker. Alcohol made him feel confident. He was also sometimes getting high before school (at a friend’s place) and staying away from the family home on weekends.
The Applicant recalled that by the age of 16, his mother knew about his substance abuse because he had told her.[13] He did not recall her telling him not to do it,[14] although she did tell him not to do the wrong thing because “God doesn’t like it”.[15] He was not receptive to general guidance from their church (which he was forced to attend) or from his step-father about how he should behave.[16]
[13] Transcript, page 58.
[14] Transcript, page 39.
[15] Transcript, page 64, lines 35 to 42.
[16] Transcript, page 19, lines 20 to 28; page 58.
The Applicant was exposed to cocaine use by his peer support group when he was 17 years old,[17] which would have been around 2016, the year he finished high school. He had a job when he was at school and he continued employment after he finished school.
[17] Exhibit G, G-Documents, G16, page 252.
The Applicant’s drinking got worse when he turned 18 because he was able to buy alcohol. He was drinking on weekends and he took MDMA and cocaine every weekend.[18] He stopped using marijuana as he preferred those drugs.[19] In May 2019, he moved from Rockhampton to Brisbane and his “partying” escalated.[20]
[18] Transcript, page 20.
[19] Exhibit G, G-Documents, G16, page 206.
[20] Exhibit G, G-Documents, G16, page 207; Transcript, page 20, lines 25 to 29.
In a statutory declaration, he said he thought the drugs and alcohol helped him suppress his feelings and forget about his worries.[21] He told Dr Freeman that by the time he was 18, he stopped thinking about the sexual abuse, trying not to allow it to affect him as much.[22]
[21] Exhibit G, G-Documents, G16, page 206.
[22] Exhibit G, G-Documents, G16, page 250.
OFFENDING
On 14 May 2019, the Applicant was placed on a late-night driving restriction for 12 months due to the accumulation of demerit points. He had been caught speeding and performing an illegal U-turn in the preceding months. On 26 May 2019, he drove without due care and attention. According to him, he was approaching a random breath testing station and, because he was drunk, he avoided it. The police called him, and he presented himself to the station the next day.[23] On 8 June 2019, he was caught speeding, and on 16 June 2019, he was caught failing to display his P plates.
[23] Transcript, page 46, lines 34 to 37.
At 5.30am on 12 July 2019, the Applicant was served with a Police Banning Notice, banning him from entering or remaining in the Fortitude Valley Safe Night Precinct for ten days until 5.30am on 22 July 2019, as a result of him being involved in a disturbance. He could not recall what the disturbance was. Less than 72 hours later, he attempted to get into a pub in the area where he was banned.[24]
[24] Exhibit R2, Respondent’s Tender Bundle, TB3, page 41.
On 28 August 2019, the Applicant’s license was suspended due to demerit points. At around 12.10am on 29 August 2019, the police intercepted him driving. He assured them he would not drive the vehicle home and that his friend had a licence. Around five minutes later, he was again intercepted by the police driving the vehicle. He apologised and said his friend only had a learners permit.[25]
[25] Exhibit R2, Respondent’s Tender Bundle, TB3, page 46.
In November 2019, when the Applicant was 20 years old, he met Ms B and they commenced a relationship. A week later he moved into her share house. This was his fourth serious relationship, and the second in which he lived with his girlfriend.[26] The Applicant described his relationship with Ms B as toxic, with them both cheating on the other, feelings of built-up pain and resentment on both sides, and substance abuse. They broke up and got back together a few times. When they were not at work, they consumed cocaine and drank to excess together.[27] He claimed Ms B had bi-polar disorder and “mixed personalities” and she said mean things.
[26] Exhibit G, G-Documents, G16, page 207.
[27] Transcript, page 43.
On 11 March 2020, a domestic violence order (“DVO”) was issued against the Applicant, for the protection of Ms B. The Applicant thinks this was the result of a neighbour hearing them argue. He claimed she was screaming at him while he tried to stay away from her to avoid arguing. The DVO was served on 18 March 2020, to remain in place until 10 March 2025. Its conditions prohibited him from committing acts of domestic violence against her, being at her home, and contacting her.[28]
[28] Exhibit R2, Respondent’s Tender Bundle, TB3, page 4.
In the early hours of 16 April 2020, the Applicant and Ms B got into an argument about financial matters. According to the police records, the Applicant picked up a mobile phone and threw it at Ms B, hitting her in her eye socket and causing her to fall from the chair she was sitting on, striking her head on the wall and wooden floor. Blood streamed down her face, and she lost vision in that eye. She asked the Applicant to take her to hospital, however, he told her the injury was not that bad and that if they attended hospital together, they would be arrested. She took an Uber to the hospital instead, where she underwent surgery to her orbital bone.[29]
[29] Exhibit R2, Respondent’s Tender Bundle, TB3, page 28.

The learned Magistrate who ultimately sentenced the Applicant for this offending, accepted that he deliberately threw the phone at Ms B with such force that it broke her eye socket, she “suffered quite a degree of bleeding to the face, to the eye area”, and the Applicant told her there was no need to go to hospital.[30]
[30] Exhibit G, G-Documents, G7, page 58.
In this proceeding, the Applicant claimed Ms B was putting him down, saying mean things, and he was affected by alcohol and drugs at the time. He threw the phone at a table, and it ricocheted into Ms B’s face. Ms B was panicking, and he was trying to calm her down by telling her it was not as bad as she thought. He said he did want her to go to hospital but they both made the decision that he should not take her because there was a DVO in place. He claimed that he looked after Ms B afterwards and took her to follow up appointments at the hospital (and waited outside).[31] I reject the Applicant’s account of the offending and immediate aftermath as far as it differs from the facts the court accepted.[32]
[31] Transcript, pages 47 to 48.
[32] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Ms B did not report this to the police at the time.
Around May 2020, the Applicant broke up with Ms B and moved back to Rockhampton for a month or two. According to the evidence he gave in the hearing, she called “non-stop” and begged him to move back in with her. He considered that she was not mentally stable.[33] He had earlier told Dr Freeman, in December 2023, that:
“We broke up a few times and I tried to move away from the relationship plenty of times, and sometimes I’d get sucked back in and then as soon as we’d get back together the old things would happen again. It wasn’t a good relationship and I wasn’t in a good state of mind. I’d get away to Rockhampton and she’d be suicidal and I thought I could help her.”[34]
[33] Transcript, page 23, lines 40 to 48.
[34] Exhibit G, G-Documents, G16, page 252.
In a statutory declaration, dated January 2024, he said Ms B had called him and sent emails asking to get back together, and that she threatened to kill herself if they did not.[35] However, none of these claims were put forward to the police or courts. Further, the Applicant gave a different explanation to Dr Freeman for being with Ms B in July 2021 (discussed below), saying:
“We broke up and then I came back to the house. I had no place to stay but at the house. I just told the cops the truth, they said you are not allowed to go back there, and I said, where am I meant to go? I had no family or support in Brisbane.”[36]
[35] Exhibit G, G-Documents, G16, page 209.
[36] Exhibit G, G-Documents, G16, page 248.
I do not accept that the Applicant felt he had to reconcile with Ms B and contravene the DVO because she threatened suicide.
On 22 June 2020, the Applicant failed to appear in court, in breach of a bail undertaking, which must have related to his contravention of the banning notice. When the police caught up with him, he said he had already entered a guilty plea so did not think he needed to attend court.[37]
[37] Exhibit R2, Respondent’s Tender Bundle, TB3, page 50.
On 12 July 2021, the Applicant and Ms B had another argument that turned violent. According to the police records,[38] the Applicant grabbed her hair and pulled her from where she was sitting on the bed. He dragged her across the floor by her hair and clumps of hair fell out. She lay on her side on the ground and the Applicant punched her between 10 and 15 times on her face and back. He bit her on her calf, which broke the skin and left teeth marks. She screamed at the Applicant to get off her. He then choked her for between five and seven seconds, during which time she was unable to scream due to the pressure on her neck. Ms B thought that the Applicant was going to kill her. She wriggled free and ran outside. A few minutes later, the Applicant came outside and said he was sorry and that he would not do it again.
[38] Exhibit R2, Respondent’s Tender Bundle, TB3, pages 11 to 12.
The next day, Ms B called in sick from work due to her injuries. She went to hospital because the bite injury was infected. She did not speak to the medical staff about the injuries and bruising to her face and neck, but her injuries were noted in her medical records. She discharged herself from the hospital against medical advice.
An anonymous informant contacted the police and reported that the Applicant was living with Ms B. That evening, the police conducted a welfare check. Ms B appeared distressed and was rambling. She said the Applicant was not there and she had not spoken to him for weeks. However, upon hearing a noise upstairs, they entered the house and found the Applicant there. He admitted to being aware of the DVO and its conditions, and he said he had only been there a couple of days. Ms B told the police about the domestic violence, and they photographed her injuries which were partially covered in makeup. However, she did not provide a statement to the police at that time as she felt bad for the Applicant and believed him when he said he would not hurt her again.
The day after the police found the Applicant at Ms B’s home, he was fined for contravening the DVO. However, the physical attack on her was not dealt with and over the following months Ms B became un-cooperative with police, requesting the matter be withdrawn.
The Applicant was eventually brought to account for the physical attack. The learned Judge who ultimately sentenced the Applicant for offences arising out of this incident accepted that the Applicant and Ms B had an argument and then he committed the violent acts recorded by the police and noted that “The photographs certainly bear out an attack of that ferocity”. His Honour observed that after the attack, the Applicant “came outside and completed the cycle of domestic violence by saying [he was] sorry and that [he] would not do it again”.
The account of the July 2021 incident given by the Applicant in his statutory declaration was that he and Ms B had been on a night out, consuming alcohol and he had also taken cocaine. He got home before she did, and when she got home, she tried to wake him up and said mean things. He pushed her off, she started hitting him and he snapped. He slapped her, choked her and pushed her away. She started hitting him again and he tried to stop her. He was immediately depressed and ashamed.[39]
[39] Exhibit G, G-Documents, G16, pages 209 to 210.
In the hearing, he gave a slightly different version where he was the first one to start hitting. He claimed he choked her “to tell her to stop”. He added that he was crying and ashamed of how he treated her, asking himself “How can I just do that to a human?”.[40] He had no recollection of biting her or of the bite becoming infected. [41]
[40] Transcript, page 50, lines 27 to 33.
[41] Transcript, page 24.
There is no record of the Applicant telling the police or the sentencing court that Ms B was hitting him and he was defending himself. I reject his account as far as it differs from the police facts that the court accepted.
According to the Applicant, he broke up with Ms B in October 2021 and stopped using drugs for a month or two, except he still used drugs when he went out. He felt “heartbroken” and continued to drink to excess on weekends to avoid how he felt. He described himself as “very addicted to drugs and alcohol”.[42]
[42] Transcript, page 44, lines 19 to 34.
In December 2021, the Applicant met Ms E and commenced a relationship with her. She was 18 years old at the time. According to police records, on 13 December 2021, Ms B came to his home to retrieve her car keys. When she arrived, the Applicant was not answering his phone. She entered, disturbing the Applicant in bed with his girlfriend. He yelled at Ms B to leave. She said she would after he returned her keys. He pushed her over onto the floor and dragged her down a set of stairs and out the front door, while she screamed in pain. He told her the keys were in the letterbox and she retrieved them from there.[43] The learned Magistrate who sentenced the Applicant for this offending accepted those facts, and commented that fortunately there were no injuries to Ms B.[44]
[43] Exhibit R2, Respondent’s Tender Bundle, TB3, page 28.
[44] Exhibit G, G-Documents, G7, page 58.
Ms E remains the Applicant’s partner, and she made a statement and gave oral evidence in support of him in this proceeding. She asserted that he has never been violent towards her and that she is committed to helping in his rehabilitation. Although this was not included in the police records, Ms E herself engaged in violence towards Ms B on that occasion. They argued, and Ms E physically attacked Ms B. Ms E estimated that they fought for two or three minutes before the Applicant broke it up. Ms E claimed she was in shock and did not see what the Applicant did but he later told her he “pushed” Ms B out of the house. The Applicant’s account was that Ms B did not have permission to enter his house and he “roughly” made her leave. When it was put to him that he did worse than that, in fact, he pushed her to the floor and dragged her by her hair, he conceded that he remembered having done those things.[45]
[45] Transcript, page 25, lines 35 to 41; page 50, lines 45 to 46; page 51, lines 1 to 5; page 51, line 40 to page 52, line 8; page 104, lines 1 to 17.
I am satisfied that Ms E physically attacked Ms B, and that the Applicant then pushed Ms B to the floor and dragged her down a flight of stairs.
On 24 December 2021, the Applicant was in Rockhampton at a bar with his friends. According to police records, a fight broke out and the victim tried to separate the people who were fighting. The Applicant and another male started punching the victim. The Applicant struck the victim’s face with a closed fist multiple times. Then, from around a meter away, he threw an empty glass directly at the victim’s face. It shattered upon impact and the victim stumbled back and fell onto the floor. He required stitches across the bridge of his nose, and an x-ray revealed a bone chip displacement in his nose. At the time of sentencing five months later, in May 2022, the victim was still suffering pain, and he was still undergoing medical treatment, as a result of the injury.[46]
[46] Exhibit R2, Respondent’s Tender Bundle, TB3, page 17.
The learned Magistrate who sentenced the Applicant for this offence accepted the police facts and noted that the CCTV showed that the Applicant picked up the glass and threw it “forcefully” at the victim. That is, the Applicant did not punch the victim while absent-mindedly holding a glass in his hand, which is generally regarded as a less serious form of “glassing”. He deliberately picked up the glass to use as a weapon against the victim who was trying to break up the fight. The learned Magistrate found that the Applicant used the glass as a “weapon” and that it was due to good fortune, rather than any restraint on the Applicant’s part, that the victim did not suffer more serious injury.[47]
[47] Exhibit G, G-Documents, G7, pages 58 to 63.
The Applicant’s account was that he had been drinking for three days straight and was “heavy” on cocaine and MDMA. He was “black out” drunk, with around six of his friends, and he did not recall assaulting anyone. In the hearing, he claimed that a friend had told him the next day:
“…that I was hitting someone…I’ve picked up a glass and I chucked my glass at the other person that was mouthing off to me or something like that”.[48]
(underlining added)
[48] Transcript, page 26.
However, the police had questioned the Applicant in February 2022, and he had told them that he threw a plastic cup that hit the victim in his back as he was looking away. He said he got involved after seeing one of his mates being assaulted and he remembered trying to push someone around.[49] This account significantly understated the seriousness of what he did. In the hearing, when he was asked about what he told the police, he claimed that his friend had told him he had thrown a plastic cup “Because in the clubs, they only have plastic cups. They don’t have glass cups”.[50] However, that is inconsistent with the evidence he gave earlier that his friend told him he had thrown a glass. Further, he threw the glass at the victim’s face from close-range, not at his back as he was walking away. I find that the Applicant deliberately gave the police a fabricated account to make his conduct seem harmless when, in fact, he knew it was not.
[49] Exhibit R2, Respondent’s Tender Bundle, TB3, page 17.
[50] Transcript, page 53, lines 5 to 20.
After the attack, the Applicant remained in the community until he was sentenced in May 2022. During this time, he did not commit any more violent offences. He claimed that the glassing incident brought about a change. In the hearing he said:
“…it was like the biggest wakeup call for me. It was like God telling me that ‘This is your last chance. This is what it’s going to do for you. Like, if you keep going down this path, it’s going to turn ugly.’ And things did turn ugly. As I got sentenced, I went to jail…even in the sentencing date seeing old mate’s face, it was just a shock to me to see that. It completely broke my heart to see that because Christmas is a time that you spend with your family, and he spent that night in hospital…I didn’t know how to cope with that…I felt like saying sorry, but I felt like my sorry wasn’t going to do enough on that day - on sentencing day that I seen him at the - he was like that in hospital and didn’t get to spend that time with his family. It did - really did break my heart.”[51]
[51] Transcript, page 26, lines 25 to 39.
I note there that the Applicant’s regret appears to relate to the impact of his offending on the victim and the impact on himself – being imprisoned.
In December 2023, he told Dr Freeman:
“I glassed him at the end of the fight and I have no idea why. He was mouthing off at me. I don’t remember what was said – just being angry at the wrong time. I came home and still kept drinking. It was a real big eye opener for me. It was a big signal to calm down and stop drinking.”[52]
[52] Exhibit G, G-Documents, G16, page 249.
In his statutory declaration, dated in January 2024, he said:
“I quit drugs after the nightclub incident in December 2021. I stopped my heavy drinking then too and limited myself to only one or two beers on the weekend. Once I was going through court I stopped drinking and just focused on my work and family.”[53]
[53] Exhibit G, G-Documents, G16, page 211.
When he was asked in the hearing “When was the last time you used drugs or alcohol?”, he replied “Christmas Eve 2021”.[54] However, this is not accurate. The Applicant was still drinking heavily.
[54] Transcript, page 29, line 14.
Ms B eventually co-operated with the police. She provided multiple statements and photographs she had taken after the incident in July 2021.[55] In January 2022, the Applicant was given a notice to attend court for domestic violence offences.[56] According to him, at that time, he told Ms E about the domestic violence. She recalled finding out the “complete detail” of his charges in March or April 2022.[57]
[55] Exhibit G, G-Documents G5, page 54; Exhibit R2, Respondent’s Tender Bundle, TB3, page 12.
[56] Transcript, page 38.
[57] Transcript, page 98, lines 2 to 45.
In February 2022, the Applicant received a notice to attend court in relation to the assault and glassing on Christmas Eve. He knew he was facing serious charges and, according to him:
“I was scared. I was - everything was running through my mind because the last thing I wanted was to go to jail. As these being my first offences, I was prepared to go to jail. I was prepared to do the time for my mistakes”.[58]
[58] Transcript, page 28, lines 4 to 8.
Also in February 2022, the Applicant and Ms E moved in together. According to her statement, “He was drinking too much. It became even more obvious after we started living together. He wanted to drink every night. He would wake up and want to drink”.[59] When this was put to the Applicant, he did not deny it. In early March 2022, Ms E spoke to him about his drinking, and he “started to slow down as time went on” so that he was no longer drinking every day, and by April 2022, he “really started cutting down”.[60]
[59] Exhibit G, G-Documents, G16, page 372.
[60] Transcript, page 104, lines 33 to 46.
In the hearing, the Applicant claimed that by the time he was sentenced, he had “completely stopped doing drugs” and “would only drink if it was a special occasion”. Instead, he was focussing on things that made him happy like going to church, being around Ms E and his brother, and playing soccer.[61] However, after Ms E’s statement was brought to his attention, he admitted that he “slowed down on drinking”, leading up to his court date.[62] Ms E was never aware of the Applicant taking drugs either before or after the glassing incident, so she was not in a position to shed any light upon the veracity of the Applicant’s claim that he stopped using drugs after that.
[61] Transcript, page 26, line 40 to page 27, line 3.
[62] Transcript, page 45.
On Wednesday 9 March 2022, the Applicant failed to report to the Rockhampton police station by 6pm which breached his bail conditions. The police facts indicate that he later told them that he had to work late, however he had not made any attempt to advise police prior to 6.00pm.[63]
[63] Exhibit R2, Respondent’s Tender Bundle, TB3, page 32.
On Good Friday 15 April and Easter Monday 18 April 2022, the Applicant again failed to report to the Rockhampton Police Station by 6.00pm in breach of his bail conditions. When he reported on 20 April 2022, he was asked about failing to report previously and he said he did not think he had to report due to the dates being public holidays.[64]
[64] Exhibit R2, Respondent’s Tender Bundle, TB3, page 36.
In his statutory declaration, he said he breached bail because he had had difficulty getting to the police station before 6pm due to his work, and that he “called up the police station on the days [he] was having trouble making it for 6pm and asked to come later. [He] was told each time that it was okay”.[65] When it was put to him that one police record said the opposite, he suggested that whoever took his message did not pass it on.[66] With respect to the other two breaches, he said “I honestly thought the police was closed on the weekends”. Even if the Applicant meant to say “public holidays” rather than “weekends”, I find it unbelievable that he thought the police service stopped on public holidays. When his excuses and his evidence were called into question, he said “I’m taking responsibility for it” with reference to the breaches.[67] However, he was not. He was taking responsibility for mistakenly failing to report and mistakenly thinking he could report later. That is not what he did. What he did was ignore his reporting obligations.
[65] Exhibit G, G-Documents, G16, page 211.
[66] Transcript, page 53.
[67] Transcript, page 54.
Just before the Applicant’s first sentencing episode, he told Ms E about the sexual abuse that had occurred in his childhood.

SENTENCING AND VISA CANCELLATION

On 16 May 2022, the Applicant was sentenced for the offending on 13 and 24 December 2021.[68] The learned sentencing Magistrate took the Applicant’s young age into account in his favour along with the fact that he was a non-citizen who could be at risk of losing his visa. He acknowledged that the Applicant’s de facto partner was pregnant. His Honour indicated that he did not intend to impose a term of imprisonment that would lead to the Applicant losing his visa. He initially imposed a six month period of imprisonment for the assault (punching) and a nine month period of imprisonment for “assault occasioning bodily harm whilst armed/in company” (glassing). Before he got to the penalty for the assault against Ms B (the mobile phone), the Applicant’s lawyer pointed out that the six and nine month periods together would exceed 12 months and suggested a lengthy period of probation instead. The ultimate sentences imposed were:
·assaults occasioning bodily harm whilst armed/in company (24 December 2021), imprisonment for nine months to serve three months;
·common assault (24 December 2021), probation for 18 months;
·assaults occasioning bodily harm - domestic violence offence (16 April 2020), breaching bail x 3, and contravention of domestic violence order (aggravated offence) (13 December 2021), probation for 18 months.
[68] Exhibit G, G-Documents, G7, pages 57 to 63.

Ms E gave birth to a child in late January 2023, meaning she was pregnant when the Applicant was sentenced. I asked the Applicant if he and Ms E had conceived a child, knowing he was facing prison, because he thought that if he had a pregnant fiancée or a baby the court might go easy on him. He said “No, we didn’t even know that [Ms E] was pregnant in court”. He claimed that it never crossed his mind that Ms E could get pregnant, and they were not planning on it. It was an unexpected blessing.[69]
[69] Transcript, page 60, lines 15 to 35.
Ms E on the other hand, said:
“We had both talked about, like, I always wanted to be a mother. It wasn’t like set in stone we’re trying or anything like that but it was sort of like we weren’t not trying.”[70]
[70] Transcript, page 98, lines 25 to 30.
She also claimed that she did not know she was pregnant until after the Applicant went to prison.
The Magistrate clearly said the Applicant had a pregnant de facto partner. The Applicant and his lawyer were in court when that was said, and no-one corrected the Magistrate. Indeed, one cannot imagine the Magistrate got that information from anyone other than the Applicant (directly or indirectly). It contradicts what both the Applicant and Ms E said in the Tribunal hearing. Whatever the circumstances of this child’s conception, the child is now in a very unfortunate predicament where he has never had, and may never have, his father physically present in his life, and his young mother is struggling on her own.
In July 2022, the police invited the Applicant to participate in a recorded interview about the offending against Ms B in July 2021 but he declined.[71]
[71] Exhibit G, G-Documents, G5, page 54; Exhibit R2, Respondent’s Tender Bundle, TB3, page 12.
In September 2022, the Applicant and Ms E got engaged and in late January 2023, their son, Child A, was born.
On 23 March 2023, the Applicant was dealt with in the District Court for the July 2021 offending.[72] He was sentenced to imprisonment for two years and six months for “choking suffocation strangulation associated domestic violence”, and imprisonment for two years for “assaults occasioning bodily harm - domestic violence offence” (x 2). He was given a parole release date, meaning he did not have to apply for parole. The learned sentencing Judge commented that the Applicant’s relative youth paled in comparison to his criminal history. He also pointed out that choking is considered to be a precursor to domestic homicide. This seems to be well accepted in the criminal justice system. His Honour quoted from Ms B’s victim impact statement:
“It is hard to understand domestic violence unless you have experienced it. I still look back to this day and question could I have done something different.”
“Even writing this is extremely hard. It’s as if I am reliving it all again. All the pain, all the emotions, everything I’ve tried so hard to forget about.”
[72] Exhibit G, G-Documents, G5, pages 52 to 55.
His Honour continued:
“She says that instead of someone who was supposed to love her and protect her, she was terrified of you and that she believed that it was her fault that you were doing these things and that you were just angry because of your upbringing. She, importantly, says that she does not hate you – she just feels sorry for you – and that she is sorry that you lack so much sympathy and remorse.”
His Honour said he was not prepared to accept the plea of guilty as indicative of any expression of remorse, observing that:
“There is nothing that would seem to indicate that to me. The explanation provided was that the relationship was toxic; you were using drugs and alcohol, and that somehow has caused you to behave in such a monstrous fashion”.
The Applicant’s youth worked in his favour in terms of the sentence imposed, with the learned Judge commenting that, despite the very serious nature of his offending, the Crown had asked for a sentence of two years and six months based on a comparative sentence. His Honour said he would otherwise have imposed a far higher sentence.
On 4 May 2023, Queensland Corrective Services allocated the Applicant a high security classification. That was partly based on a Risk of Reoffending that placed him in the category of prisoners who pose a moderate risk of further general offending. While he was in prison, Ms E and Child A lived in Rockhampton and visited him regularly.
On 19 May 2023, the Applicant’s visa was mandatorily cancelled, and he sought revocation of the cancellation that day.
On 19 June 2023, the Applicant was paroled to immigration detention, so he was transferred from prison in central Queensland to the immigration detention centre in Brisbane. That day, he was seen by staff of the International Health and Medical Services (“IHMS”). A mental health nurse noted that he had been exposed to violence “in the neighbourhood” as a child and he had been sexually assaulted “by pastor's child” and used drugs and alcohol as a way of coping. He said he was able to reflect while in prison and realised the assault had affected his life. He told a General Practitioner that he had pain in his right hand from “an injury during a fight 3 weeks ago”. The GP also noted “Bite on Left hand which is healed now (prison?)”. She noted that the Applicant had consumed six standard drinks daily but “ceased upon imprisonment”. [73]
[73] Exhibit G, G-Documents, G16, page 284.
An IHMS clinical note of the same date states “Requests to have R hand looked at as was involved in an altercation in prison 2-3 weeks ago and R hand some pain on movement”.[74] When asked in the hearing “What was the altercation that you were involved in in prison?”, the Applicant said he was not in an altercation and that his hand was accidentally injured playing rugby when he and another person fell at the same time and he hit his hand on the ground.[75] He was then read the next sentence from that clinical note which was “Also wishes for R wrist area to be reviewed as was bitten in altercation in prison 2-3 weeks ago”. He then admitted that there was an altercation in prison, adding “It was just something that happened, like, so quickly I tried to defend myself and we wrestled, and I got bitten in the hand”. When asked what happened, he said “I don’t remember what it was. It was just something that happened, like, so quickly I tried to defend myself and we wrestled, and I got bitten in the hand”.[76] However, after the luncheon adjournment, he gave details about the catalyst for the altercation, which included gambling with tokens and a teasing remark he made.[77]
[74] Exhibit G, G-Documents, G16, page 288.
[75] Transcript, page 55, lines 1 to 10.
[76] Transcript, page 55, lines 25 to 30.
[77] Transcript, page 61.
Another IHMS clinical note, dated 27 June 2023, said “recently in a fight (has had multiple) and punched someone with his right hand, injuring base of right pinky finger, no treatment did not seek help”.[78] The Applicant did not admit to having been in a recent fight and claimed he was referring to fights he had in the past. When asked about the word “recently” he claims the note referred to the fight in prison. However, he had been quite emphatic that he had not been the aggressor in that fight and all he did was try to shield himself. When the words “punched someone with his right hand” were brought to his attention, he said he did not recall saying that. Instead, he recalled saying he got into an altercation and his hand got bitten.[79]
[78] Exhibit G, G-Documents, G16, page 276.
[79] Transcript, page 56.
The Applicant’s evidence concerning the contents of these files notes, which purport to record his own words to IHMS staff, was unsatisfactory and unconvincing.
The DVO remains in place until 10 March 2025. There is not an ongoing relationship between the Applicant and Ms B, and I accept that there is no likelihood of any future contact between them.
In February 2024, Ms E and Child A moved to Brisbane. The Applicant is accommodated in Brisbane, so she and Child A are able to visit him more often than when they lived in Rockhampton. Her mother also lives in Brisbane.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1 of the Direction requires decision-makers to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. I should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community. The Direction provides that “serious conduct” includes behaviour or conduct that does not constitute a criminal offence.
In determining the weight applicable to this Primary Consideration, paragraph 8.1(2) of the Direction requires me to give consideration to:
a)The nature and seriousness of the Applicant’s conduct to date; and
b)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of the Applicant’s criminal offending or other conduct to date, I must have regard to the following relevant matters:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)…
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
…
The Direction requires me to treat the three violent attacks on Ms B as very serious regardless of the sentences imposed. Those attacks included the Applicant punching Ms B, dragging her by her hair, throwing a mobile phone at her hard enough to break her orbital bone, biting her with enough force to break the skin, and choking her. They all occurred in the contravention of a DVO. After two of the attacks, Ms B had to take herself to the hospital for treatment: the applicant did not help her. On the occasion when the Applicant broke her orbital bone, he was more concerned with potentially getting into trouble for breaching the DVO than assisting her to get medical treatment.
The Applicant was only sentenced to probation for the mobile phone incident and the incident where Ms B went to his home to get her car keys. However, the court’s leniency in its efforts to prevent a young offender with a pregnant partner from being put at risk of deportation does not diminish the weight I give to this Primary Consideration. The attack in July 2021 attracted a sentence of two and a half years imprisonment, and the sentencing Judge thought it warranted more.
The Applicant’s violent assault on a stranger who tried to stop a fight is also very serious regardless of the sentence imposed, which was nine months imprisonment. Not only did the Applicant punch the victim multiple times, he picked up a glass and threw it at his face with such force that it shattered.
The Applicant’s driving history, taken as a whole, is serious. The licensing system is aimed at making sure only people who meet certain driving standards are operating vehicles on the roads. Road rules are there to promote order and safety. The Applicant’s license was suspended because of his failure to comply with road rules. He then drove unlicensed, was caught by the police, lied to the police and kept driving unlicensed. The instance when he was driving drunk and evaded a random breath testing station is particularly concerning as driving without due care and attention when drunk tends to increase the risk of a collision.
The Applicant’s offending was frequent as he committed some 14 offences in a three-year period. The seriousness of his offending escalated from contravening a police banning order to very serious violence. The cumulative effect of his repeated violent offending was two members of the Australian community sustained serious injuries and the consequential psychological impact of that.
The three breaches of bail, while not causing any harm, show a lack of regard for the administration of justice.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Here, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.[80]
[80] Paragraph 8.1.2(1) of the Direction.
I must have regard to the following relevant factors on a cumulative basis:
(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 available information and evidence on the risk of the non- citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence.[81]
[81] Paragraph 8.1.2(2) of the Direction.
The nature of harm from further violent offending, having regard to the offending the Applicant has previously engaged in and the fact that it was escalating in seriousness, includes catastrophic, even lethal harm. Glassing a person could result in the victim being maimed or disfigured, losing the function of one or both eyes, or dying from that attack or from falling because of the attack. The same could be said for forcefully throwing other types of hard projectiles (like a mobile phone) at a person’s head. Where choking and strangulation in a domestic setting are precursors to homicide, and the seriousness of a person’s offending escalates, there is a real risk of homicide. Any material risk of these types of harm occurring is unacceptable.
Further, even disregarding the risk of death or catastrophic harm, further violence is likely to cause physical and psychological harm to victims. Further, crimes like these have a ripple effect, adversely affecting the loved ones of the victims who empathise with their suffering, worry about their wellbeing, and sometimes need to make sacrifices to accommodate their physical and psychological needs. Those who witness domestic violence, or other serious violence, often feel immediate distress and can suffer long-term psychological harm.
Specifically in relation to domestic violence, the “Fourth Action Plan – National Plan to Reduce Violence against Women and their Children 2010-2022”, reported that every day there were on average 12 women in Australia who are hospitalised due to domestic violence. Violence against women and their children resulted in an overall economic cost of $26 billion in 2015-16, with victims bearing approximately 50 per cent of that cost.[82] This alarming report shows that domestic violence impacts the whole community. With respect to the strain on hospitals, the Applicant hospitalised both his victims due to the level of his violent attacks.
[82] Exhibit R2, Respondent’s Tender Bundle, TB6, page 100.
The type of risky driving the Applicant has previously engaged in is likely to increase the risk of collisions which are a cause of injury and death.
With respect to the risk of further offending by the Applicant, I have the benefit of an independent, expert risk assessment by a forensic psychologist with a great deal of relevant experience. As it often the case, the information that was available to Dr Freeman at the time he conducted his assessment differs in some respects to the evidence that was before the Tribunal. I will address some of the other evidence that is relevant to the risk of re-offending before addressing Dr Freeman’s evidence.
It is well accepted, and Dr Freeman gave evidence of this, that past behaviour is one of the best predictors of future behaviour. The Applicant misused drugs and alcohol for around eight years, and in a two-year period he committed multiple violent offences while under the influence of drugs and/or alcohol. His breaches of bail and traffic offences, not all of which were committed while under the influence of substances, show lack of respect for the law separate to his substance misuse. His behaviour in intimate relationships was immature and irresponsible. None of this bodes well in terms of his future behaviour, given he has only aged by two years since he was incarcerated.
After the first attack against Ms B, which broke her orbital bone, the Applicant moved away, effectively ending the relationship, but he did not take any steps to change his own behaviour. Nor did he do that after the second attack in which he choked and bit Ms B (among other things), despite his evidence that he felt depressed and ashamed immediately afterwards. Even after the third physical attack against Ms B, after they had broken up, he did not engage in any counselling or rehabilitative programs.
It was only after the Applicant glassed a stranger that, according to him, he decided he had to change his ways – “calm down” and stop drinking. His reasoning was partly that things would “turn ugly” for him if he did not. At that time, Ms B had not reported any of the assaults on her, however, his attack at the pub had occurred in front of witnesses and the victim was not someone who had an interest in protecting him from the legal consequences of his actions. Even then, the Applicant did not stop drinking or seek rehabilitative treatment. It was Ms E’s influence that led him to decrease, but not stop, his substance abuse some months later. He did not engage in any anger management treatment.
The Applicant’s behaviour before his incarceration was not demonstrative of a person who recognised that he needed to change. I note, in fairness to the Applicant, that he refrained from violence for the five months when he was on bail. However, there were previous lengthy periods between his violent assaults that were obviously not indicative of reform.
The Applicant has not used alcohol or illicit substances in prison. He described prison to an IHMS staff member as “like a rehabilitation”.[83] While drugs are available in prison, they are not as available as they are in the community given the much higher degree of surveillance and the restrictions that apply in prison. The Applicant remained abstinent in immigration detention. There are not any reports by prison or detention centre staff of poor behaviour by the Applicant.
[83] Exhibit G, G-Documents, G16, page 285.
Since the Applicant entered immigration detention, he has engaged in rehabilitative courses that address substance abuse, domestic violence and anger management. He has also done a basic parenting course. He claimed that he has learned how to control his emotions to avoid violence in and out of custody. He indicated that he has strategies and coping mechanisms to help him cope in the community with stress and anger management and maintaining healthy relationships. He said “Everything has helped me to understand and to become a better person. Every day I live by that. Every day I'm trying to better myself…”.[84]
[84] Transcript, page 29, lines 30 to 35.

The Applicant’s learnings from the courses, as he and Ms E described them, seem rather generic and superficial, e.g. breathe, walk away, but they are a start.
The Applicant has disclosed the childhood sexual abuse to Ms E and his mother, and he is engaging in counselling with a psychologist to address that. Telling his mother about it felt like a big weight lifted off his shoulders. He intends to continue this counselling.
There are several letters and statements of support from family, friends, and people the Applicant knows through church that speak well of him. Some people say they see positive change in him. However, this evidence is of little value in terms of the risk of re-offending as it does not address his offending or the contributing factors in any meaningful way.
The Applicant still has some way to go in terms of his attitude to his offending. He has expressed remorse and disgust with himself. He has acknowledged, in a superficial way, the harm he did to the person he glassed, and how his actions have affected himself, his family, Ms E and Child A. He said many times that he accepts responsibility for his offending and that he does not blame anyone else. However, my impression is that his remorse largely relates to the impact of the consequences of his offending on himself, and to some extent on those close to him, and that he blames Ms B for provoking him to behave in a way that he now feels disgusted about. He has consistently focussed on the toxicity of their relationship and her mean put-downs that upset him. For example, in his statutory declaration, dated 10 January 2024, the Applicant said:
“When I think about the domestic violence, I really regret everything that happened. I regret going back there and back to her, just every single moment. I should have just left the relationship alone. I knew it was something I definitely shouldn’t do. My brother was warning me. I was very young and naïve and I believed in love a lot. A very toxic version of love. It’s definitely something I never thought I would do in my life. It’s completely not how I’ve been raised. I would never treat my mother or family like that, but I did it to my partner. I feel disgusting in myself.”[85]
[85] Exhibit G, G-Documents, G16, page 211.
Worse, he does not appear to have ever regarded Ms B as someone he victimised. For example, when giving evidence about his reluctance to take her to hospital after the first assault, he said:
“We were both getting angry and agitated because we were both panicking and not knowing what to do…I was telling her, ‘Look, it’s going to be okay’…because there was a lot of blood, I was just trying to get her to calm down. Because when people do see a lot of blood, they tend to just panic and freak out. So I was just trying to calm her down first, and then get her the help that she needed.”[86]
[86] Transcript, page 48, lines 10 to 24.
That is, the Applicant was angry at Ms B because she would not calm down after he hurt her. Then he did not, in fact, get her the help she needed. She went to the hospital herself in an Uber.
The Applicant has not acknowledged the physical and mental damage he caused to Ms B, and he does not appear to understand the psychological impact on her. For example, in his efforts to convince the Tribunal that he did not mean to throw the phone at Ms B, he pointed to the fact that she had stayed with him afterwards as proof that she knew it was an accident. However, the parts of Ms B’s victim impact statement that the Judge read out and paraphrased to him when passing sentencing indicate that she blamed herself for the Applicant’s violence, made excuses for him, and felt sorry for him, which better explains why she stayed with him.
The Applicant seemed disgruntled about Ms B reporting him, or the way she reported him, to the police. On 19 June 2023, he told the IHMS that domestic violence charges “were pressed by ex-partner”.[87] In his statutory declaration in January 2024, he said “She didn’t press charges against me about this until later on – years after the incident”.[88] He said she only reported the July 2021 offending after she heard he was going to have a baby with his new partner, although that does not match the timing of events. In his oral evidence, he claimed that she sent emails saying “If you don’t get back together with me I’m willing to press charges” and that she only reported his offences out of spite when he was happily in a relationship.[89] It is significant that he continues to have ill feelings towards Ms B for telling the truth about what he did to her, whatever her reasons, even after having done a domestic violence course.
[87] Exhibit G, G-Documents, G16, page 285.
[88] Exhibit G, G-Documents, G16, page 209.
[89] Transcript, page 49.
I am satisfied that the learned sentencing Judge’s observation that there was nothing to indicate that the Applicant felt remorse for his offending against Ms B remains accurate.
Another concern I have is that throughout the Applicant’s evidence, he attempted to minimise, excuse and shift blame, particularly regarding his offending against Ms B. For example, he claimed Ms B assaulted him first in the July 2021 incident, and he understated what he did to her in December 2021. He described the breaches of bail as mistakes and misunderstandings. His evidence about the altercation in prison chopped and changed. Whatever did occur, he was not candid about it. I accept that a person’s failure to accurately recount their offending may simply be a function of imperfect memory or lack of objectivity, and it is not necessarily cause for concern. The Applicant’s intoxication when he committed the violent offences would have impaired his memory. However, some of the discrepancies in the Applicant’s accounts of his offending cannot be explained that way. There is discernible unwillingness on his part to be accept full accountability for his actions.
Dr Freeman interviewed the Applicant, and administered some actuarial risk assessment tools, on 10 December 2023. He subsequently provided a report.[90] He pointed out that alcohol is known to impair judgement and elevate irritation, and cocaine use also impairs judgement and executive functioning. He said individuals who experience childhood trauma/hardship are vulnerable to struggle with lower resilience levels in adulthood and utilise negative coping mechanisms. He thought the primary contributing factors to the Applicant’s offending were substance abuse and associated impaired decision-making, youth/immaturity, a high-risk relationship and inability to respond appropriately to emotional stressors.
[90] Exhibit G, G-Documents, G16, pages 247 to 263.
The order in which the Applicant was sentenced for his offences did not match the order in which he committed them. Dr Freeman was not able to work out the chronology of his offending. This, and the fact that he did not have all the evidence at his disposal,[91] impacted his ability to put some things in their temporal context. Overall, I think Dr Freeman formed an overly positive impression of the Applicant because of the information he had available to him. For example, Dr Freeman thought the glassing happened in Brisbane and the Applicant had reacted by moving away from negative peers in Brisbane to Rockhampton, as he had “come to his senses”, and stopped drinking. He thought he had been able to modify his behaviour and abstain from alcohol while on bail.[92] In fact, the glassing happened in Rockhampton and the Applicant returned to Brisbane and continued drinking.
[91] As often happens in expedited matters where summonsed material is unavailable at the time of the assessment, and Applicants are not entirely forthcoming.
[92] Transcript, pages 122 to 126.
Another example is that Dr Freeman did not know about the drink driving or disqualified driving. When informed about the drink driving, he thought it reflected misuse of alcohol, which he was already aware of. He said had the Applicant been caught disqualified driving repeatedly, then that would raise questions about why he could not abide by the rules and regulations.[93] The Applicant was caught driving disqualified twice in one night. He also breached bail multiple times. Dr Freeman was also not aware of the third offending episode against Ms B.[94]
[93] Transcript, page 118.
[94] Transcript, page 122.
Dr Freeman formed the opinion that the Applicant was able to recognise that his offending was his fault: he did not clearly intend to minimise, rationalise or externalise his behaviour. As I have noted, this was not the impression I got from the entirety of the evidence before me, although the Applicant did not engage in the sort of “high end denial”, e.g. “I didn’t do it, I wasn’t there or it was consensual” that Dr Freeman thought would be cause for concern.[95] Dr Freeman said he would have expected the Applicant to acknowledge the impact of his offending on Ms B, and he suggested that perhaps he did not question the Applicant enough about that. However, Dr Freeman did discuss the offences against Ms B, and the Applicant talked about them and the impact of Ms B’s behaviour on himself, so he had opportunity to acknowledge the impact of his behaviour on her.
[95] Transcript, page 119.
When asked how a lack of genuine remorse would affect his evaluation, Dr Freeman said it would affect it “in a big way”. It would be necessary to explore the Applicant’s capacity to articulate and understand what empathy is, and whether there is a personality deficit. Where a person cannot see how their behaviour could affect somebody else, that would weigh heavily into the risk of re-offending and likely “bump any risk category up to a higher rating”.[96] As I have observed, I am not satisfied that the applicant felt genuine remorse for what he did to Ms B or that he adequately understands how it impacted her.
[96] Transcript, page 121.
Dr Freeman diagnosed the Applicant with:
·     Alcohol Dependency Disorder (sustained remission);
·     Cocaine Use Disorder (sustained remission); and
·     Adjustment Disorder (with anxious distress).
Dr Freeman opined that the Applicant’s offending history suggested a vulnerability to use reactive violence (including excessively) when intoxicated and exposed to a perceived emotional stressor. He also demonstrated a vulnerability to misguided use of substances to manage emotional distress.
Dr Freeman considered that the Applicant needed to mature a lot from when he was offending, and he thought he probably had matured a fair bit. He said he hoped that if the Applicant ever found himself in another high-risk relationship, he would be mature enough to get out. Research shows that young men’s prefrontal lobes do not fully develop until the age of 25, and the Applicant is approaching that age.[97]
[97] Transcript, page 128.
Dr Freeman administered the Psychopathy Check List (PCL-R) which is a reasonably accurate predictor of sexual and violent recidivism, the HCR-20 (Historical, Clinical and Risk Management Violence Assessment Scheme) which is designed to assess the risk for future violent behaviour in criminal and psychiatric populations, and the Violent Risk Appraisal Guide (VRAG) which is validated to predict an individual’s probability of violent recidivism. The first two placed the Applicant in the low-risk category whereas the VRAG placed him in the medium risk category. The VRAG only takes into account static (historical) factors whereas the others take into account dynamic factors such as whether an offender’s relapse prevention plan is realistic and achievable.
Dr Freeman identified a number of protective factors that he thought could lower the risk of re-offending, including completion of intervention programs, family support, realistic release plans, lack of deviancy or clear anti-social tendencies, capacity to demonstrate regret/remorse, his strong work ethic and employment opportunities, and his commitment to maintain abstinence. He thought the risk would likely increase substantially if the Applicant were to experience a prolonged period of relapse, so ongoing maintenance-based substance abuse treatment in the community would help.
Dr Freeman’s opinion that the Applicant had realistic plans was based on his belief that the Applicant was “smart enough” to realise that there were negative risks associated with Brisbane, and that he was planning to live in Rockhampton where he has family, and he could work in his brother’s cleaning business. As things have now changed, and he plans to live in Brisbane, Dr Freeman thought the Applicant would need to be vigilant to ensure that he avoids any negative peer support group.[98]
[98] Transcript, page 116, lines 27 to 38.
Dr Freeman also took into account that the Applicant has an adjustment disorder because he does not like the predicament he is in, which means he has strong incentive to avoid prison and deportation, which he saw as a protective factor.
Using the combination of the three actuarial tools and his clinical opinion, Dr Freeman thought there was a low risk of the Applicant reoffending if he were to remain abstinent from drugs and alcohol and maintain lifestyle stability. After being provided with some additional information when giving his oral evidence, Dr Freeman remained of the view that the Applicant had shown genuine remorse, and that he was in the low-risk category. I am prepared to accept his risk assessment but given the concerns I have raised, I accept the Respondent’s submission that a low risk is as good as it gets for the Applicant. Further, I do not take “low” to mean very low or marginal, given one of the assessment tools placed the Applicant in the medium risk category. Without the requisite maturity, abstinence, lifestyle stability and domestic violence and anger management counselling, the risk could well increse.
The Applicant acknowledged that he needs to continue with counselling and rehabilitation. He is aware that some rehabilitative programs in the community are very expensive. Neither he nor Ms E have any savings. His mother said she and her husband cannot afford to give him any financial assistance. He will have to find rehabilitation services that are free, such as Narcotics Anonymous, or subsidised by the government. He said he wants to engage in rehabilitation for the rest of his life. Any length of continued rehabilitation will require commitment. In immigration detention, he has ample time for counselling and courses. In the community, he will have a job, fiancée/wife, child, friends, soccer, and family taking up his time.
The Applicant said he intends to rely on friends and family to keep him on the rehabilitation path, ground him, and make sure he does not slip back into his old ways. He said his brother and Ms E in particular will make sure he continues his rehabilitation. He mentioned his religion as an important factor too.
The Applicant plans to live in Brisbane with Ms E and their baby. Ms E thinks the Applicant has matured and improved a great deal since they first met. He tells her what he has learnt in rehabilitation and parenting courses. She believes he is really ashamed of his offending. She plans to help him continue his rehabilitation and give him mental and emotional support. Both the Applicant and Ms E are aware that if he re-offends, he will likely lose his visa and not get it back. I am satisfied that the Applicant’s relationship with Ms E is loving and committed, and that she is motivated to help him to stay off drugs and alcohol and refrain from offending. However, she cannot force him, only support him.
In the very early stages of Ms E’s relationship with the Applicant, having found out about his violent offending and alcohol abuse, she chose to continue the relationship and was open to the possibility of tethering herself to him by having a child together. This is highly suggestive of poor judgment and a tolerance for anti-social behaviour. So is the fact that she, herself, engaged in violent behaviour against Ms B, despite the regret she expressed about that in the hearing.[99] Ms E claimed that it would not be ok with her if the Applicant were to re-offend, and she suggested she would break up with him if he did. Ms E appeared to give truthful evidence for the most part, but adopting a zero-tolerance policy now would require a big change in attitude, and I am sceptical given Ms E’s devotion to the Applicant and the child they share. While I accept that Ms E will support and encourage the Applicant to stay out of trouble, I do not think she is a strong protective factor.
[99] Transcript, page 106, lines 1 to 4.
The Applicant’s relationship with Ms E is not his first serious relationship. He has had four other serious relationships which have all broken up. He and Ms E spent less than six months as a couple in the community before he was incarcerated. Ms E thinks their relationship has become stronger since then. However, if that has occurred, it has occurred in artificial circumstances where they are not facing day to day issues together, running a household, dividing chores, balancing work and home life, and dealing with financial stressors. Their ability to maintain a stable, healthy, long-term relationship with each other has simply not been tested in the community. They are both very young and there are some elements of immaturity in their relationship, for example, the early rapid acceleration of the relationship which is reminiscent of the Applicant’s relationship with Ms B. If Ms E and the Applicant were to break up, then any risk of further domestic violence would relate to his future partners.
The Applicant’s brother lives in Rockhampton, but I accept that he can provide emotional support and advice to the Applicant from there. The Applicant did not accept his brother’s advice to end his troubled relationship with Ms B, so the extent to which his brother can help him depends upon his willingness to accept help.
The Applicant claimed to have recently forged a close relationship with his mother and step-father. He indicated he is now willing to accept their guidance. They both believe he has changed for the better. The Applicant’s mother appears to have been in denial about some important aspects of the Applicant’s life. For example, she claimed that they always had a good mother-son relationship, and she denied that he had used drugs as a minor. She knew very little about his offending, believing the phone incident was the most serious. I got the impression that she tailored some of her evidence and I do not consider her to be a reliable witness. I do not regard her as much of a protective factor and it is not evident how useful the Applicant’s step-father would be, given he was around for all those years when the Applicant was abusing drugs and alcohol and did not intervene in any significant way.
I am satisfied that there it least a low, and very real, risk that the Applicant will re-offend in a manner similar to his offending to date.
Primary Consideration 1 weighs very heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen. I must have regard to the following relevant factors when I consider the seriousness of the family violence engaged in by the Applicant:
a)the frequency of the Applicant’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the applicant’s last known act of family violence, including:
i.the extent to which he accepts responsibility for their family violence related conduct;
ii.the extent to which he understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to his conduct.

The Direction defines family violence to include violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes them to be fearful. It was not disputed that the offences against Ms B were acts of family violence.
I have already addressed the frequency of the Applicant’s family violence, the trend of increasing seriousness, the cumulative impact of his repeated acts of family violence, the rehabilitation he has achieved since the last attack on Ms B, and his efforts to address factors which contributed to his offending against her. I have found him to be somewhat deficient in the extent to which he accepts responsibility for his offending against her and the extent to which he understands the impact of his behaviour on her.
Primary Consideration 2 weighs heavily against revocation of the cancellation of the Applicant’s visa.
I will address Primary Consideration 5 out of order as it is the final consideration that weighs against the Applicant.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.[100]
[100] Paragraph 8.4(1) of the Direction.
A visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through certain specified conduct which includes acts of family violence and the commission of serious crimes against women. These expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[101]
[101] Paragraph 8.4(3) of the Direction.
Paragraph 8.4(4) of the Direction provides the following guidance on how the expectations of the Australian community are to be determined:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
The Applicant certainly has committed offences that raise serious character concerns, namely multiple serious crimes against a woman that were also family violence, in contravention of a court order. Further, the attack on a stranger at a pub and his driving history show disregard for the law and the safety of other members of the Australian community. Although there need not be a measurable risk of causing physical harm to the Australian community in order to engage this Primary Consideration, there is one.
I accept that the Applicant suffered from the neglect of his parents in Brazil, sexual abuse in Australia and lack of emotional support from his family in Australia. Additionally, he was raised in an environment where violence was normal. I accept that these factors could well have predisposed him to abuse substances and engage in violence. Accordingly, it is not the case that, having an unremarkable background, and with a clear head, he chose to inflict violence on people, and I take that into account in the weight I allocate to this Primary Consideration. However, after the first violent offence, which resulted in blood streaming from Ms B’s eye wound, a trip to the hospital, and an operation, the Applicant did absolutely nothing to address his predisposition to violence or to curb his drug and alcohol use. The second attack left extensive bruising on Ms B and he knew he had choked her, yet still he made no efforts in that regard. He ultimately glassed a person. While it is understandable that the Applicant did not feel able to seek help for his childhood trauma, he could have sought help for is substance abuse and violence.
Primary Consideration 5 weighs heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 3: STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA
Here, I am to consider any impact of the decision on the Applicant’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. I should also consider the strength, duration and nature of any family or social links generally with persons in that category. I should give more weight to the Applicant’s ties to children in that category.
In addition, I should consider the strength, nature and duration of any other ties the Applicant has to the Australian community. In particular, where the Applicant has been ordinarily resident in Australia during and since his formative years, that warrants considerable weight in his favour. The length of time he has resided in Australia should be given more weight if he has contributed positively to the Australian community in that time.
The Applicant spent some of his formative years in Australia as he moved to Australia when he was 10 years old and he completed the majority of his schooling here. He lived in the wider Australian community for around 13 years before he was incarcerated. In that time, he was gainfully employed for around six years, and he paid tax on his income. That is a significant contribution for one so young. He did not do any voluntary work. The Applicant played in a soccer team, and he was in a church congregation before his incarceration.
The ties the Applicant has to the community are apparent in the numerous letters of support from family and friends.
The Applicant’s mother, step-father, brother, two half-sisters, and nephew live in Australia, in Rockhampton. There is also an infant niece whom he has never met. I accept that the Applicant has a close and enduring relationship with his brother with whom he has lived for most of his life. While he did not live with the rest of his family until he was 10 years old, I accept that he has recently become close to his mother and step-father. He speaks with his mother and brother on a daily basis, and his step-father regards him as a son. I accept that the Applicant has emotional ties with his nephew and his two half-sisters, although the older half-sister, Ms L, does not have much contact with him.
The Applicant has maintained communication with his family by phone and online since his incarceration. He would presumably continue to do that whether he lives in Brazil or Brisbane. If he is removed to Brazil, he will only be able to see his family if they visit him. His mother has visited Brazil around four times since moving to Australia.[102] She and his step-father have family in the Applicant’s home town in Brazil.[103] I am satisfied that visits are likely, although they would be infrequent.
[102] Transcript, page 88, lines 16 to 18.
[103] Transcript, pages 88 to 89.
The Applicant has been able to maintain communication, albeit occasional, with his relatives in Brazil, which demonstrates that conversely, he would be able to communicate with his Australian family from Brazil.
The Applicant’s mother used a fair bit of hyperboles in her description of the impact that the Applicant’s deportation would have on her. She referred to the family never seeing him again and said “Just thinking that my son could be deported would cause me pain worse than death”.[104] She did not describe their previous separation in that way, and she is obviously aware that the family can visit the Applicant in Brazil. The Applicant is now an adult with transferrable employment skills and he has relatives in Brazil, so he would not be alone without any form of support. For these reasons, I do not accept the Applicant’s mother’s evidence at face value. However, I do accept that his family are already experiencing emotional hardship due to his predicament, and while they are not financially or practically reliant on him, they will suffer emotional hardship if he is deported. I accept that his mother and brother are particularly impacted. I further accept that any visits to Brazil would deplete their finances.
[104] Exhibit G, G-Documents, G16, page 404.
The Applicant has some social ties in the community. For example, a Ms Bakss provided a letter of support in which she said she knows the Applicant through her church and that he spent a lot of time with her four children when they were smaller and they considered him to be a big brother. She had some health problems over the years, and the Applicant went out of his way to visit her.
It was contended on the Applicant’s behalf that it is most unlikely that Ms E and Child A would be able to move to Brazil with him. Ms E and Child A would be able to communicate with the Applicant, although the time difference would make it hard, and visits would be infrequent if they occur at all. I accept that deportation would cause a great deal of emotional hardship to both Ms E and the Applicant because Ms E and Child A will be permanently separated from the Applicant. They will lose the opportunity to live as a family now, where the Applicant can contribute financially, practically and emotionally, and they will have to give up their hopes and dreams of a happy future together with their child in Australia. I accept that deportation means that Child A will not have the potential benefits of his father present in his life.
Ms E has some qualifications and work experience so there is potential for her to find employment, although she is currently reliant on Centrelink which she finds a struggle. She has been taking medication for depression due to the Applicant’s predicament, and I accept that her mental state could deteriorate if the Applicant is deported. When she was in Rockhampton, the Applicant’s family, mostly his mother, provided some practical and financial support. Now she is in Brisbane, her mother can help to a limited extent. Ms E is also worried about the Applicant’s wellbeing in Brazil: she thinks he would be homeless due to having no-one to help him. However, this seems speculative.
This Primary Consideration weighs heavily in favour of revoking the visa cancellation.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Here, I must determine whether a non-revocation decision is or is not in the best interests of a child (under the age of 18 at the time) affected by the decision. Where there is more than one child affected, the best interests of each child should be given individual consideration to the extent that their interests may differ.[105]
[105] Paragraph 8.3 of the Direction.
The Direction sets out a number of factors to take into consideration, which relevantly include:
·     the nature and duration of the relationship between the child and the Applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
·     the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
·     the impact of the Applicant’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·     the likely effect that any separation from the Applicant would have on the child, taking into account the child’s or Applicant’s ability to maintain contact in other ways;
·     whether there are other persons who already fulfil a parental role in relation to the child;
·     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
The Applicant’s eight year old half-sister, Child Y, lives with the Applicant’s mother and step-father. They fulfil the parental role for her. By the time Child Y was born, the Applicant was spending a lot of time outside the family home, with friends. He speaks with Child Y when he calls his mother. I accept that the Applicant has a positive relationship with Child Y, although she is not dependant on him in any way.
The Applicant’s brother has two children, Child C and Child N. Child C is nine years old and lives with the Applicant’s mother. Chid C visited the Applicant in detention earlier this year. I accept that they have a positive relationship, however, there are other people fulfilling the parental role and Child C is not dependant on the Applicant in any way.
I accept that Child Y and Child C both have positive, close relationships with the Applicant and they miss him. If the Applicant is deported, these children will not be able to communicate with him, or see him in person, as much as they would be able to if he were in the community in Brisbane. I accept that both children, Child C to a lesser extent, are likely to experience some emotional hardship. On that basis, I allocate some weight with respect to each of these children, with a little more allocated to Child Y.
Child N was born recently, and she lives with her mother, who does not appear to be in a relationship with the Applicant’s brother. The Applicant has never met her. It is not known what sort of relationship, if any, he could have with her if he were in the community. I do not allocate any weight with respect to this child.
The Applicant’s son is 14 months old. Due to the Applicant’s conduct, he has been in custody for the entirety of this child’s life. While Ms E claimed that the Applicant and Child A have a “great relationship”, the reality is that their contact is limited to occasional visits (three or four since Ms E moved to Brisbane in February 2024) and phone/video calls. Child A is barely old enough to communicate even at a basic level. I am not satisfied that there is a close, meaningful relationship, although I accept that the Applicant loves Child A and Child A recognises him. Child A is not dependant on the Applicant in any way and I am not satisfied that he would feel his absence to any significant degree if he were deported. Ms E fulfils the parental role for Child A with some help from the Applicant’s family and her mother. While she struggles, there is no suggestion that Child A is not adequately cared for.
I accept that the Applicant wants to be a good parent to Child A. He made the effort to do a basic online parenting course. However, he is young and inexperienced, and he has not had the opportunity to prove his ability and commitment as a parent. His relationship with Ms E has not yet withstood the stressors of day-to-day life in the wider community on a long-term basis. If they part ways at some point, his parenting role will presumably be limited. Further, if he relapses into drug or alcohol abuse, that will undermine his ability to be a responsible, nurturing, positive factor in Child A’s life. Worse, if he is aggressive or violent towards Ms E, that will adversely impact Child A directly or indirectly. I have found that there is a real risk that he will re-offend. Any re-offending could result in his imprisonment and/or deportation, and if he and Child A have formed a bond by that time, his absence is likely to adversely impact Child A.
Taking all these matters into consideration, the value the Applicant would add to Child A’s life during his childhood, if he were in the Australian community, is uncertain. The Applicant’s removal from Australia would take away the potential for him to be a good parent to Child A for many years to come, but I do not think it can be put much higher than that.
If the Applicant is deported, he can maintain phone and electronic communication with Child A and there might be infrequent visits. I accept that this could not replace physical presence and he may not be able to provide financial support from Brazil.
There is no information about whether or how the Applicant’s removal would affect Ms Bakss’ children. The information about their past relationship with the Applicant is very general and there is almost no information about their current circumstances. They were not put forward as minor children whose best interests are affected by the decision. Given these matters, I am unable to allocate any weight in relation to them.
Taking into account the best interests of Child A and the other children I have mentioned cumulatively, this Primary Consideration weighs moderately in favour of the revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATON (b): EXTENT OF IMPEDIMENTS IF REMOVED
I must take into account the extent of any impediments that the Applicant may face if removed from Australia to Brazil, in establishing him/herself and maintaining basic living standards (in the context of what is generally available to other citizens of Brazil), taking into account:
(a)the Applicant’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to the Applicant in Brazil
The Applicant is 24 years old. He is able bodied and does not suffer from any medical conditions. He speaks fluent Portuguese although he forgets a lot of words.[106] He lived in Brazil until the age of 10 and went to school there to the third grade. He did not claim to have experienced any feelings of alienation or cultural difficulties when he visited Brazil in 2011/ 2012 or 2013/2014.
[106] Transcript, page 32, lines 7 to 10.
The Applicant’s mother claimed that the Applicant does not know “how Brazil works culturally” and that she does not know “what will happen to him if he is just sent to Brazil and left to figure things out by himself”.[107] His step-father said the Applicant “doesn’t understand just how different it is over there”.[108] However, in her oral evidence, his mother was unable to give an example of something the Applicant would need to figure out that she, her husband or their relatives in Brazil could not guide him through.[109] I am not satisfied that the Applicant would face any substantial language or cultural barriers in Brazil.
[107] Exhibit G, G-Documents, G16, page 404.
[108] Exhibit G, G-Documents, G16, page 411.
[109] Transcript, pages 91 to 92.
The Applicant and others have expressed concern that he will not have financial support in Brazil and he will end up homeless, especially as he does not have any qualifications or work experience in Brazil. However, the Applicant has a range of work experience in Australia and presumably he can obtain references from former employers attesting to his skills. He has also demonstrated a strong work ethic. He has worked in food service (McDonalds), customer service (Front Counter Assistance at 7D Virtual Reality), labouring work (Theodore Mill, JBS Meatworks and Austrek Australia), food delivery (Domino’s Pizza), sales (FTF Pty Ltd) and distribution (Woolworths Distribution). He also worked in the kitchen and landscaping while in prison so presumably he has some skills associated with that work. It is reasonable to assume that there is a need for labour, customer service, food service, and sales skills in Brazil, so I am satisfied that the Applicant has some transferrable employment skills. When his mother lived in Brazil, she got a job at the local meatworks without any qualifications or experience because her cousin worked there.[110] Therefore, potentially a connection or recommendation would do where qualifications and local experience are lacking. The Applicant impressed as a confident, well presented young man.
[110] Transcript, page 92.

The Applicant grew up in Cacoal, Rondônia. His paternal grandmother, who raised him to the age of 10, lives there with a paternal aunt (not the one he stayed with as a child) and a person he described as a second uncle. While the Applicant said in his written evidence that they do not have a place for him to stay, in the hearing, he said they still live in the house they lived in when he visited Brazil, and his best bet for a place to stay would be with them.[111] He is in contact with his aunt at least once per month: he checks on his grandmother and his aunt keeps him “on the right path” and sends “good, positive messages about the bible”.[112] His aunt has two adult children. He last spoke with his grandmother not long after he got released from prison.[113] He claimed that they cannot support themselves and that he and his older brother previously sent money so his grandmother could go to the doctor and get medical treatment.[114] There is no evidence to suggest that the Applicant’s older brother could not continue to send money occasionally when his grandmother needs it. A maternal grandmother, two maternal aunts and two maternal uncles also live in Cacoal. One aunt looks after the Applicant’s maternal grandmother. Another runs a home child-care business, and an uncle has a business selling car parts.[115] The Applicant’s step-father has a brother and two sisters in Cacoal.[116]
[111] Transcript, page 31, lines 39 to 45.
[112] Transcript, page 62, lines 40 to 46.
[113] Transcript, page 63, lines 1 to 5. Note: he said “detention centre” but he is still in detention so I take him to have meant prison.
[114] Exhibit G, G-Documents, G16, pages 212 to 213.
[115] Transcript, pages 88 and 94.
[116] Transcript, page 89.
The Applicant’s mother talks to one of her sisters and although she has little contact with her other siblings, they are not estranged, they all love each other.[117] She said her family in Brazil could not help the Applicant in any way, which seems implausible and is an example of where I believe she tailored her evidence.
[117] Transcript, page 93, lines 1 to 10.
I am satisfied that the Applicant has many relatives in Cacoal, some of whom he is in touch with and others whom his mother or step-father are in touch with. I am satisfied that his grandmother could accommodate him as she did when he visited previously. While I am unable to find that his relatives would assist him financially, he will not be completely without support and connection. There are people there who can provide company and practical information, and potentially introduce him to their friends, family and church congregation.
The Applicant’s mother said she and her husband would not be able to provide any financial support to the Applicant in Brazil as they have a mortgage and other debts. In Brazil, the Applicant will have the same access to charitable support as other Brazilians.
Dr Freeman diagnosed the Applicant with an adjustment disorder due to his unhappiness with his current circumstances. He thought that if the Applicant were to be deported, it could become a major depressive disorder, and these tend to be “very clinically impairing”. That is, they affect a person’s ability to set and achieve goals. He added that if a person is really depressed and isolated from people, they will struggle to function and make good decisions.[118] I accept that if the Applicant is deported, he will be isolated from those closest to him whom he relied on for emotional and psychological support. He will be able to communicate with them - either using his own device and phone/internet service or presumably the device and service that his aunt and grandmother use - and he will have some relatives around him. Still, I acknowledge that he will have to grapple with the reality that he will not be able to live close to his family, Ms E and Child A for the foreseeable future and probably the rest of his life.
[118] Transcript, page 127.
The Applicant also has a predisposition to misuse drugs and alcohol, and Dr Freeman diagnosed Alcohol Dependency Disorder and Cocaine Use Disorder, both of which are in remission in a controlled environment. Relapse will most likely impair his ability to function optimally, although he previously managed to maintain employment for most of the time he was abusing drugs and alcohol.
The Applicant will have access to the same level of health and mental health services that any citizen would have, and he will have access to contact and support from his family and Ms E through electronic means. He will be able to join a church congregation in Brazil.
I am satisfied that establishing himself and maintaining basic living standards in the context of what is generally available to other citizens will be challenging for the Applicant and may well involve some hardship, but I do not think these challenges and hardships will be insurmountable.
This Other Consideration weighs moderately in favour of the revocation of the cancellation of the Applicant’s visa.
CONCLUSION
I am now required to weigh all of the Considerations that attract weight either for or against revocation of the cancellation of the visa, in accordance with the Direction. I have allocated weight as follows:
·Primary Consideration 1 – very heavily against revocation;
·Primary Consideration 2 – heavily against revocation;
·Primary Consideration 5 – heavily against revocation;
·Primary Consideration 3 – heavily in favour of revocation;
·Primary Consideration 4 – moderately in favour of revocation;
·Other Consideration (b) – moderately in favour of revocation;
In addition, I allocate some weight in the Applicant’s favour to recognise the accumulation of several factors that are treated disparately in the Direction. The Applicant felt rejected and abandoned by his parents. They did not acknowledge his experience and he continued to feel disconnected from his mother and step-father even when he was living with them. He was physically abused under the guise of discipline, and he witnessed violence, which can have a normalising effect. He was sexually abused and that went unaddressed for a long time. All these things likely predisposed the Applicant to substance abuse. Deportation means he will, once again, be removed from his family as well as Ms E and Child A. These matters have been accounted for in my consideration of the mandatory considerations, but their combined effect has not. Accordingly, I apply an uplift, equal to a low weighting, in favour of revocation. It is not enough to tip the balance in favour of revocation.
Even taking into account the adverse impacts of a non-revocation decision on the Applicant and other people, the combined factors against revocation prevail. Therefore, there is not another reason to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 198 (one hundred and ninety-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy

................................[SGD]...............................
Associate
Dated: 18 April 2024

Date of hearing: 2 and 3 April 2024

Solicitor for the Applicant:

Ms Victoria Lenton

Lenton Migration Law Pty Ltd

Solicitor for the Respondent
Mr Chris West

Sparke Helmore

ANNEXURE A – EXHIBIT LIST

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G

G-Documents

(G1 to G17, 456 pages)

R

Various

31 January 2024

A1

Applicant’s Statement of Facts, Issues and Contentions

(41 pages)

A

21 February 2024

21 February 2024

A2

Applicant’s Bundle of Additional Material

(AM1 to AM2, 21 pages)

A

Various

21 February 2024

R1

Respondent’s Statement of Facts, Issues and Contentions

(19 pages)

R

13 March 2024

13 March 2024

R2

Respondent’s Tender Bundle

(TB1 to TB6, 133 pages)

R

Various

13 March 2024

[2024] AATA 773

12 April 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G	G-Documents (G1 to G17, 456 pages)	R	Various	31 January 2024
A1	Applicant’s Statement of Facts, Issues and Contentions (41 pages)	A	21 February 2024	21 February 2024
A2	Applicant’s Bundle of Additional Material (AM1 to AM2, 21 pages)	A	Various	21 February 2024
R1	Respondent’s Statement of Facts, Issues and Contentions (19 pages)	R	13 March 2024	13 March 2024
R2	Respondent’s Tender Bundle (TB1 to TB6, 133 pages)	R	Various	13 March 2024