Pillay and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Pillay and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 739 (15 April 2024)
Division:GENERAL DIVISION
File Number: 2023/2606
Re:Lesley Pillay
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:15 April 2024
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), this Tribunal affirms the decision made on 20 April 2023 by a delegate of the Respondent to not revoke the mandatory cancellation of the Applicant’s Class BW Subclass 857 Regional Sponsored Migration Scheme visa.
.........................[SGD]............................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – remittal- non-revocation of mandatory cancellation of a 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 – where the criminal offending predominantly involved illicit substance abuse and family violence offending – where Applicant was previously warned by the Respondent’s Department- Tribunal finding Applicant’s recidivist risk as unchanged - factors against revocation outweigh factors in favour of revocation- Tribunal finding there is no another reason to revoke the mandatory cancellation decision- decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Bail Act 1980 (Qld)
Criminal Code Act 1899 (Qld)
Domestic and Family Violence Protection Act 1989 (Qld)
Domestic and Family Violence Protection Act 2012 (Qld)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Police Powers and Responsibilities Act 2000 (Qld)
Cases
Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Walker v Minister of Home Affairs [2020] FCA 909
Secondary Materials
Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Senior Member Theodore Tavoularis
15 April 2024
INTRODUCTION

Mr Lesley Pillay (‘the Applicant’) is a 38-year-old man, born in South Africa on 2 February 1986. He first arrived in Australia in November 2008 as a 22-year-old.[1] He then departed Australia in December 2008 for a period of one month returning in January 2009. He departed again in August 2010 and remained offshore for six months until his return in February 2011.[2] He departed for the final time in November 2012 and returned a couple of weeks later in early December 2012. Since his arrival in 2008, he has been in Australia for a period of about 16 years less the seven-and-a-half-month period when he was out of the country. It can be safely accepted that for all intents and purposes, the Applicant has lived permanently in Australia since his arrival in November 2008.
[1] R1, p 104.
[2] R1, p 104.
PROCEDURAL HISTORY
The Applicant’s visa history in this country is a storied one. It transpired thus:
·15 February 2019: he was notified of the mandatory cancellation of his then Class BW Subclass 857 Regional Sponsored Migration Scheme visa (‘the Visa’) pursuant to s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’);
·14 February 2020: he was notified of a decision by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) that the immediately preceding mandatory cancellation decision had been revoked;
·15 August 2022: consequent upon the Applicant’s convictions for further offending on July 2022 he was notified of a second mandatory cancellation of his Visa pursuant to section 501(3A) of the Act;
·16 August 2022: the Applicant sought revocation of this second mandatory cancellation decision;
·20 April 2023: a delegate of the Respondent decided, pursuant to section 501CA(4) of the Act, not to revoke the second mandatory cancellation decision. For the purposes of these Reasons, I will refer to this non-revocation decision as the ‘Decision Under Review’;
·24 April 2023: the Applicant applied to this Tribunal seeking review of the immediately preceding non-revocation decision made pursuant to section 501CA(4) of the Act;
·14 July 2023: this Tribunal (differently constituted) affirmed the Decision Under Review; and
·28 September 2023: the Federal Court of Australia remitted the Tribunal’s decision of 14 July 2023 for reconsideration.
This proceeding comprises this application’s second ventilation before this Tribunal. The evidence ventilated at the first hearing may be taken into consideration for present purposes. However, this second ventilation is a hearing de novo. Revocation of the Decision Under Review by this Tribunal is, by definition, a stand-alone merits based review of the totality of the evidence from both ventilations.
The instant hearing proceeded before me in-person on 6 and 7 March 2024 (‘the Hearing’). At the commencement of the Hearing the parties agreed that the Tribunal’s list of material should be consolidated into an agreed Exhibit List[3] which is attached to these Reasons and marked as ‘Annexure A’. This Hearing received oral evidence from:
·the Applicant;
·the Applicant’s aunt, Ms Nancy Chetty;
·the Applicant’s aunt, Ms Lorna Reddy;
·the Applicant’s mother, Ms Yvonne Govender;
·the Applicant’s brother, Mr Damien Pillay;
·the Applicant’s friend, Mr Pera Wihongi-Lim;
·the Applicant’s partner, Ms Siobhan Correia; and
·the clinical psychologist and Associate Professor in Allied Health, Dr Jacqui Yoxall.
[3] See generally, Transcript, p 2, lines 26-35; p 3, lines 1-15.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4 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.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. I am also satisfied this Tribunal has jurisdiction to review the non-revocation decision pursuant to s 500(1)(ba) of the Act.
There are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; and if not
(b)whether there is another reason to revoke the mandatory cancellation of the Applicant’s Visa.
Does the Applicant pass the character test?
The Applicant does not pass the character test as a matter of law.[4] He was sentenced to a term of imprisonment for 15 months on 8 July 2022[5] and thus meets the respective threshold requirements appearing in section 501(6)(a) of the Act (‘substantial criminal record’) and section 501(7)(c) of the Act (‘sentenced to a term of imprisonment of 12 months or more’). Accordingly, the Applicant cannot rely on section 501CA(4)(b)(i) of the Act for the mandatory cancellation of his Visa to be revoked.
[4] Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63].
[5] R1, p 40.
Is there another reason to revoke the mandatory cancellation of the Applicant’s Visa?
In considering whether there is another reason to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) of the Act 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 (‘Direction’ or ‘Direction 99’) has application.[6]
[6] Direction No 99 commenced on 3 March 2023. It replaces Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a

non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are as follows:
1Australia 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.
2Non-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.
3The 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.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens 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.
6
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 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the 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. These considerations are:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to
keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by

non-citizens. Decision-makers 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.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
I will consider each in turn.
The nature and seriousness of the Applicant’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(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)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(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;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Applicant has convictions for the commission of multiple violent offences against women. This offending falls within the auspices of paragraph 8.1.1(1)(a)(ii) of the Direction and must thus be found to be ‘very serious’. He has a conviction for the commission of a fraud against an elderly female victim while he was working as a locksmith. He told the previous hearing that his victim was in her 80’s at the time he offended against her.[7] This conduct falls within the auspices of paragraph 8.1.1(1)(b)(ii) of the Direction and must thus be found to be at least ‘serious’.
[7] R1, p 2090, line 11.
He has at least two convictions for ‘contravene direction or requirement’[8] of a police officer in the performance of their duties. This is conduct also falls squarely within the auspices of paragraph 8.1.1(b)(ii) of the Direction and must also be found to be at least ‘serious’.
[8] Pursuant to section 791(2) of the Police Powers and Responsibilities Act 2000 (Qld).
In assessing the nature and seriousness of the Applicant’s conduct it is also necessary to have regard to the sentences imposed by the Courts for his offending. Paragraph 8.1.1(1)(c) of the Direction precludes me from having regard to sentences for specific conduct. However, even by not taking into account the sentences he received for precluded conduct, the Applicant has received virtually the full range of sentencing options for his conduct. His non-precluded conduct has been punished by fines in the approximate sum of $11,750. He has been ordered to make monetary restitution towards some of his victims totalling some $15,000. He has received orders for the performance of community service. Perhaps most significantly, sentencing courts have imposed something in the order of 47 months of head custodial time for his non-precluded offending.
It is well – established that sentences involving custodial time represent the last resort in the sentencing hierarchy. The imposition of a custodial term should be viewed as a reflection of the objective seriousness of the offences committed by this Applicant.[9] I am satisfied that the scope of sentencing modalities imposed on this Applicant for the non-excluded offending strongly militate in favour of a finding that the totality of his conduct must now be found to be ‘very serious’. I so find.
[9] PNLB and Minister for Immigration and Border Protection [2018] AATA 162.
I must also determine whether the Applicant’s offending has been frequent and whether it demonstrates any trend of increasing seriousness. The first of the two questions compelled by paragraph 8.1.1(1)(d) of the Direction can be readily answered in the affirmative. An offending history involving the commission of some 56 offences dealt with at 17 sentencing episodes spanning an approximate nine and half year offending period is clearly frequent offending. The Applicant’s traffic offending is similarly substantial. It covers the period December 2008 until July 2022. His driving privileges were suspended on 13 occasions during that period. He accumulated 56 demerit points, incurred some $7,658 in fines and the cumulative period of suspension from driving was 96 months or eight years. Therefore, both the Applicant’s criminal offending and traffic offending can be both be safely found to have been of a frequent nature.
The second question compelled by paragraph 8.1.1(1)(d) of the Direction involves the question of whether the offending evidences a trend of increasing seriousness. During the period from February 2013 to November 2018, the Applicant’s unlawful conduct primarily involved offending in the realms of breaching his bail, stealing and breaching domestic violence orders. During this period he committed 15 offences. From December 2018 until the end of the criminal history in July 2022, his offending intensifies. He commits another 40 offences and the resulting sentences are much more oriented towards custodial terms. But this intensification of both the rate of offending and the severity of sentences does not adequately answer the question of whether the offending evinces a trend of increasing seriousness. This is because the Applicant’s offending has been very serious from its commencement. It was moderately committed (in terms of rate of offending) between February 2013 until November 2018. It was more intensively committed during the period December 2018 to July 2022.

I am comfortably satisfied that the totality of the Applicant’s criminal and traffic history has been of a very serious nature. There is no requirement to look for any graduation in the level of seriousness of the totality of this criminal offending because in my view, it has been serious from its commencement. This criminal history, when conjoined with his traffic history, engages the auspices of paragraph 8.1.1(1)(d) of the Direction in favour of a finding that the totality of the Applicant’s unlawful conduct has indeed been ‘very serious’.
The Direction (via paragraph 8.1.1(1)(e)) then compels a decision maker to identify any cumulative effect(s) from the Applicant’s repeated offending. First, there seems little or nothing to cavil with the proposition (and finding) that he has not taken any deterrent effect from the sentencing regime imposed on him. Non-custodial sentencing options did not deter him, nor did an existential threat to his Visa status given that his Visa had previously been cancelled but reinstated with a significant warning, which I will discuss later. Nor for that matter did the imposition of custodial time deter him. He received his first custodial terms (of about three months) in 2018. Thereafter his offending attracted the imposition of 39 months of custodial time.
Second, such has been the Applicant’s disorientation resulting from his significant difficulties with illicit drugs that his conduct has been utterly devoid of any respect for the lawful authority governing and regulating the community into which he now seeks re-admission. He has no respect for (1) the requirements of a domestic violence order; (2) an order granting him bail and which required him to present himself at Court on future dates; (3) the laws and regulations governing the operation of a motor vehicle on Australian carriageways; and (4) the laws governing rights of Australia citizens to peacefully enjoy the property they have worked hard to acquire.
Third, it is a matter of concern both for the present requirements of this paragraph 8.1.1(1)(e) of the Direction (and for his recidivist risk which I will discuss later) that the Applicant’s significant difficulties with illicit drugs (primarily heroin) are yet to come under any reliable pattern of treatment, management and control. It seems plain that the predominant amount of his offending was committed while under the influence of illicit substances or as the result of a need to meet his cravings for those substances. This uncertainty created by the gap in the clinical evidence does comprise a cumulative effect of his offending.
Fourth, I have earlier outlined the sheer scope and extent of the Applicant’s criminal offending and traffic history. There is absolutely no doubt in my mind that the totality of his unlawful conduct in this country has consumed more than its fair share of the community’s policing, sentencing and custodial resources. This is an undeniable cumulative effect of his repeated offending.
These four cumulative effects of the Applicant’s repeated offending must, to my mind, cause this paragraph 8.1.1(1)(e) to strongly militate in favour of a finding that the Applicant’s offending in this country has been ‘very serious’.
The Direction, via paragraph 8.1.1(1)(f) then compels an enquiry of whether the Applicant has provided false or misleading information to the Respondent’s Department, including by not disclosing criminal offending. I have earlier outlined the Applicant’s movement history since his initial arrival here in November 2008. As will be recalled, he departed from and returned to Australia on three separate occasions. All of those three occasions pre-date his criminal history. The material therefore contains nothing in the form of an incoming passenger card that could now be said to contain false or misleading information. This paragraph must be put to one side and rendered neutral for present purposes.
The next enquiry, pursuant to paragraph 8.1.1(1)(g) of the Direction, involves the question of whether the Applicant has reoffended since being formally warned about the consequences of further offending on his Visa status to remain here. As mentioned earlier, the Applicant’s Visa has been mandatorily cancelled twice. When it was reinstated after the first mandatory cancellation, the Applicant received a warning about the consequences that further offending would very likely have on his Visa status to remain here. The explicit terms of that warning appear in the material. I will refer again to this warning later in these Reasons when addressing the issue of recidivist risk. For the purposes of this paragraph 8.1.1(1)(g) of the Direction it suffices to say that (1) he received the abovementioned warning on about 14 February 2020; and (2) he thereafter committed some 20 further offences that attracted the imposition of some 21 months of head custodial time. This paragraph 8.1.1(1)(g) thereby very strongly militates in favour of a finding that the Applicant’s offending has been of a very serious nature.
The final paragraph of the Direction referrable to an assessment of the nature and seriousness of the Applicant’s conduct is paragraph 8.1.1(1)(h). The Applicant is currently aged 38 years and he spent the first 22 and a half years of his life in South Africa. The material is silent about whether he has compiled any history of criminal or other offending in South Africa or any other country that could be classified as an offence or other unlawful conduct in Australia. This paragraph 8.1.1(1)(h) must be put to one side and rendered neutral for present purposes.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have applied each of the relevant paragraphs appearing in paragraph 8.1.1(1) of the Direction. The relevant paragraphs applicable to the instant facts safely lead me to the conclusion (and finding) that the totality of this Applicant’s unlawful conduct in this country can be readily characterised as ‘very serious’. This finding is consistent with the Applicant’s position at both the earlier ventilation of this matter and in the present one.
In his written material adduced into evidence for the first hearing, the Applicant’s Statement of Facts, Issues and Contentions (‘SFIC’) said ‘…it must be accepted that the applicant’s criminal offending in Australia is very serious.’[10] In his closing submissions to the instant Hearing, the Applicant said: ‘I can see that my offending is very serious, and I blame no one but myself for my actions.’[11]
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
[10] R1, p 146 [24].
[11] Transcript, p 82, lines 17-18.
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker 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 of it being repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following 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;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The Applicant’s concessions
In his written statement, the Applicant succinctly summarises the nature of the harm that his offending has occasioned upon both individual victims and the broader community. He talks about harm resulting from a variety of his past unlawful conduct including (1) his fraudulent conduct; (2) his domestically violent conduct; (3) the impact of domestically violent conduct upon domestic partner victims and children who are exposed to it; and (4) traffic offending. It is worth quoting, in some length, the Applicant’s conceded positions about the harm his offending has caused. There is surely no denying the Applicant’s agreement to the effect that were he to reoffend as he has done in the past, similar or identical harm would ensue:
‘15. I understand that my criminal offending has impacted many people including the direct victims of my crimes, my own family and the Australian community.
16. I also have much better insight into the harm caused to the victims and the Australian community by the crimes I have committed in the past. For example, I clearly understand that fraud is a crime that could have lasting consequences on its victims. Particularly vulnerable people such elderly, the sick and the poor may suffer from long-term mental and physical trauma as a result.
17. Further, Fraud impacts people, businesses, industries and has a negative impact on the community where government resources are often diverted away from important social programs and services to assess, investigate, detect and respond to these crimes lawfully.
18. My actions over the last 6 or 7 years, particularly my repeated fraud and stealing offences have consumed a lot of community and law enforcement resources. I have taken advantage of people, stolen from them, defrauded them simply to feed my serious addiction at the time. I am genuinely remorseful and ashamed of my conduct.
19. I also clearly understand that domestic violence has serious consequences for its victims (I myself have been at the receiving end of it as a child for many years and I continue to be affected by it mentally and emotionally). It is a leading cause of death, illness and disability for women; it has a devastating impact on the victims physical, mental and emotional health; the victims often would turn to drugs and alcohol to deal with the ongoing abuse and pain imposing an ongoing cost on the community and a burden on the much-needed services.
20. In a household where domestic violence is being perpetrated by one of the parents, children in that household can feel unsafe and unstable and could have a far reaching impact on their health and wellbeing. Often children who are exposed to domestic violence grow up without learning about positive and respectful relationships. Significant taxpayer funds and resources are also used in prosecuting the abusers and the process once again exposes the victims to relive the trauma that was perpetrated on him/her. I am truly ashamed that I once behaved just like my abuser.
21. Similarly, traffic offences are not victimless crimes and particularly driving while under the influence of drugs or alcohol could have catastrophic consequences for innocent road users. When a person is impaired, he cannot concentrate, make good judgements and react to situations quickly enough. People impaired by drugs and alcohol also have a reduced ability to judge distance and speed and would have a false sense of confidence and that could increase the risk of crashes on the road.’[12]
[My emphasis]
[12] A1, pp 2-3 [15]-[21].
Based upon the Applicant’s above acknowledgements and concessions, it can be safely found that the nature of harm to individuals or the Australian community in the event of recommission of his offending would:
·cause quantifiable material loss to victims of his fraudulent conduct. The victims could include individual people, more vulnerable elderly people and businesses;
·cause physical, emotional and potentially catastrophic harm to domestic partner victims on the receiving end of that conduct;
·cause physical, emotional and potentially catastrophic harm to other road users in the event of the Applicant recommitting his traffic offending; and
·cause the community to again allocate an inordinate level of its policing, judicial sentencing, custodial and public health resources to deal with the consequences of the Applicant’s offending.
I have had regard to the totality of the Applicant’s unlawful conduct. I am satisfied that the nature of harm it would cumulatively represent to either individual victims or the Australian community would range from psychological harm, physical harm, measurably material harm up to, quite conceivably, catastrophic harm in the event of its recommission. I so find.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant’s evidence
I return again to the Applicant’s written statement filed in the instant proceeding.[13] He frankly concedes that difficulties with illicit drugs have been at the epicentre of his offending. He accepts that most, if not all, of his offending has been committed while under the influence of illicit substances or as a result of feeling compelled to criminally offend to satiate his cravings for those substances:
‘….I was pretty much high all the time before my incarceration and when I was not, I was looking for the next fix. The long abstinence from drugs in a controlled environment has allowed me to think back and reflect on how certain things happened and how the abuse I suffered has manifested into my adulthood. I truly believe that my childhood and the abuse I suffered has played a major part in me turning to drugs, which is the root cause of all of my offending.’[14]
[13] A1.
[14] A1, p 2 [12].
He talks about initially working as a locksmith after his arrival in Australia in November 2008. Thereafter, he says:
‘…I got trapped into drug addiction, I lost my business, lost my family, distanced myself from my family and loved ones and became a menace to society. I defrauded people, stole from my employer, committed numerous driving offences just for another fix of the drugs that had completely taken over my life.’[15]
[15] A1, p 4 [22].
He talks about currently maintaining and observing an abstinence from illicit substances. He has been out of the community for almost two years. For first five months of that period, he was in prison and for the last circa 17-18 months he has been in immigration detention. He refers to his time in both prison and immigration detention. During this time away from the community, he says ‘I have spent the time wisely and have undergone significant rehabilitation to turn my life around.’[16] That rehabilitation is particularised in his written statement as follows:
[16] A1, p 4 [23].
‘Certificate Courses
A. Understanding Addictions (10 hrs);
B. Stress Management (4 hrs);
C. Depression Management (5 hrs);
D. Domestic violence 101 (5 hrs);
E. Anger Management 101 (5 hrs);
F. Drug and Alcohol abuse 101 (7 hrs);
G. Basic Parenting 101 (5 hrs);
H. Healthy Relationships (7 hrs);
I. Fundamentals of Domestic Violence and Abuse (5 hrs);
J. Triple P Online – Positive Parenting Program (20 hrs);
K. Opioid Crisis (3 hrs)
L. Criminology basics (3hrs)
37. Beyond Blue
A. Understand mental health and wellbeing in learning communities (1 hr);
B. Connect through strong relationships (1 hr);
C. Include by embracing diversity within the community (1 hr);
D. Partner with families through purposeful and positive relationship (1 hr);
E. Assist families to support and promote mental health and wellbeing (1 hr);
F. Affirm the importance of social and emotional learning and resilience (1 hr);
G. Embed evidence-based social and emotional learning strategies (1 hr);
H. Empower children and young people to look after their mental health and
wellbeing (1 hr);
I. Notice the early signs of mental health issues (1 hr);
J. Inquire sensitively about the child or young person’s circumstances (1 hr);
K. Provide support within and beyond the early childhood service or school (1 hr);
L. Recognise the potential impact of critical incidents (1 hr);
M. Respond collaboratively to critical incidents (1.5 hrs);
N. Natural disasters and other community trauma support those affected by
community trauma (1.5 hrs);
O. Leading through natural disasters and other community trauma (2 hrs); and
P. Therapeutic storytelling (2.5 hrs);’[17]
[17] A1, pp 5-6 [36]-[37].
His written statement also contains ‘Learning Outcomes’ referrable to each of the certificate for each of these courses he undertook. Much of these reported ‘outcomes’ appear to be ‘cut and paste’ narratives inserted into the statement and it is difficult to take anything definitive from those reported outcomes.
But this is not the end of his rehabilitative efforts. He has:
·‘…commenced counselling with the psychologist Mr Fredi Bashour to address my criminogenic needs and manage my symptoms, and now Dr Josh Kelly, I will undertaking on-going consultations with Dr Josh Kelly in future, including in the community if I am released…’;[18]
·‘…undertaken rehabilitation…in the Smart Recovery Program meetings. I have so far attended 13 meetings of 1.5 hours duration…’;[19]
·‘….successfully completed with flying colours, a 6 week course “The Relapse Process” through Lives Lived Well.’;[20] and
·‘….completed a number of appointments with SANE…a program for people with recurring, persistent or complex mental health issues and trauma, and for their families, friends and communities.’[21]
[18] A1, p 14 [43].
[19] A1, p 14 [44].
[20] A1, p 14 [45].
[21] A1, p 14 [46].
He talks about being ‘…committed to future rehabilitation. I really have and will continue to make changes in my life to be a better person, great father and loving husband.’[22] In terms of his job prospects he refers to a likelihood of him ending up being employed by his aunt in her cleaning company.[23] This evidence was corroborated by that aunt-Ms Nancy Chetty-in her oral[24] and written[25] evidence.
[22] A1, p 14 [47].
[23] A1, p 15 [53].
[24] See generally, Transcript, p 25, lines 44-47; p 26, lines 1-17.
[25] See generally, A10, in particular, second page and second paragraph on that page.
He also refers to now apprehending the existential threat to his Visa status to remain here in the event he commits further offences and receives further consequential convictions that would again give rise to mandatory cancellation of his Visa for a third time:
‘57. Finally, I understand the consequences of reoffending if I am released. I understand if I were to reoffend, I will never be given another chance to stay in the Australian community. Any further offending will result in the cancellation of my visa again and as a consequence deportation to potentially my death in South Africa. I will also lose all contact with my children, and my family that I dearly love.’[26]
[26] A1, 16 [57].
In his oral evidence given in cross-examination, the Applicant was asked about his prospects of remaining reliably abstinent from illicit drug use if returned to the community. As best as I understood his evidence, he (1) accepted that he has relapsed in the past; (2) he has done counselling; (3) he appreciates the future threat of deportation in the event of another mandatory cancellation of his Visa; (4) says it is much less likely he will relapse now because he has greater insight into his addiction and also has protective supports around him. I have derived the above four elements from the Applicant’s oral evidence at the Hearing before me which has been transcribed in these terms:
‘MR WEST: Yes, that’s right, yes. So what I’m interested in there is, is the first paragraph there – well, the first sentence there, it says, ‘Lapse and relapse is all part of the recovery.’ So you’d accept that’s the case when you’re rehabilitating from drug use?
APPLICANT: Yes, I have relapsed in the past, yes.
MR WEST: And you’d accept that that statement continues to apply to you, that you’re a recovering drug addict, so lapsing and relapsing will be part of that process. That’s fair enough?
APPLICANT: I mean it’s a lot harder this time with all the work that I’ve done, with all the counselling that I’ve received, and the threat of deportation even more.
MR WEST: So do - - -?
APPLICANT: It’s a lot different.
MR WEST: Mr Pillay, I’m asking you fairly direct questions?
APPLICANT: It’s part of the process, but it’s a lot harder from where I am now.
MR WEST: So you can’t say for certain then that you’re not going to relapse in the community, can you?
APPLICANT: I can spot it from a mile away this time, and I have supports.
MR WEST: Mr Pillay?
APPLICANT: Yes.
MR WEST: All I asked you was, you can’t say for certain that you won’t relapse if you re-enter the community. That’s all I’m asking you?
APPLICANT: I’ve – I’ve got the supports in place to protect me from that.
MR WEST: So your answer is you can say for certain that you’re not going to relapse. That’s your evidence?
APPLICANT: I – I know that I won’t, but it’s – if it’s part of the process, I know what to do this time. That’s – that’s my answer. That’s my answer, and I can spot it from a mile away, you know. I have the supports in place. That’s my answer.
MR WEST: So just so I’m clear about that, Mr Pillay, you say it won’t happen, but if it does you have supports in place. That’s your evidence?
APPLICANT: My evidence is before a relapse, there’s – there’s other things that happen before that. So I’m in a position now that I can spot it before it gets to that.
MR WEST: Okay. So you’re saying you’re certain you won’t relapse?
APPLICANT: It’s – it’s a lot harder for me to relapse. I’m trying to answer the question as best as I can.
SENIOR MEMBER: Well, he doesn’t have to answer it from the point of view of certainty. What’s certain? I mean, well, what he’s saying is, that if I’m put back into the community, and I do have cravings for drugs again, these are the defence lines that I’ve set up. That’s what he’s saying, and to that extent he can be, in inverted commas, ‘certain’, as certain as he can be.
MR WEST: Is that your evidence, Mr Pillay?
APPLICANT: That’s accurate.
SENIOR MEMBER: That’s about as high as it gets, isn’t it?
APPLICANT: Yes.’[27]
[My emphasis]
[27] Transcript, p 16, lines 9-47; p 17, lines 1-10.
The expert evidence

As will be noted from the Applicant’s evidence, he now propounds a position of being able to sustain a reliable abstinence from illicit drug use upon a return to the community. He refers to courses completed, supports around him and a relatively new-found capacity to apprehend and avoid an onset of any pattern of illicit drug use. This propounded position must be received with caution because (1) this is not how his relationship with illicit drugs has transpired following past ‘second chances’; and (2) the weight of expert opinion, while allocating a measure of recidivist risk, does not necessarily or convincingly lead me to suggest that his issues with illicit drugs will not again affect him if returned to the community where illicit drugs will be way more freely available to him.
At the previous hearing, the Applicant tendered a report from the forensic psychologist, Dr Gavan Palk. Dr Palk records an assurance from the Applicant that he (the Applicant) will not use heroin again if returned to the community. Dr Palk also recorded the Applicant’s stated fear of another cancellation of his Visa and a return to South Africa if he resumed offending to an extent that again resulted in mandatory cancellation of his Visa. The Applicant’s subsequent conduct bears little or no relation to what he told Dr Palk.
Misgivings can also be said to result from the Applicant’s evidence given in the Hearing before me. There were specific and quite material elements of the Applicant’s offending that he did not report to the expert psychologist - Dr Jacqui Yoxall-whom the Applicant retained for the instant proceeding. For example, in terms of his version of certain incidents reported to Dr Yoxall, the Applicant denied certain specific details of the physical violence perpetrated upon a domestic partner victim in circumstances where that denial was squarely at odds with the version of the incident recorded by Police.
The Applicant’s explanation for this inconsistency between what is recorded about his conduct in the material and how he reported that conduct to Dr Yoxall is now vacuously sought to be explained away on the basis of him saying he gave her the whole remittal bundle and that he relied on her to look through the entirety of that material (circa 2100 pages) and to counterpoint and compare his version of a given incident compared to what the remittal bundle has to say about that incident. The reality is the Applicant knew the precise details of the answer he had to provide to Dr Yoxall’s question on a given incident. He took a gamble on Dr Yoxall perhaps not turning up the relevant page(s) in the remittal bundle to expose the blatant inaccuracy of what the Applicant was telling her. While he may think the gamble paid off with Dr Yoxall, it will not with this Tribunal.
In any event, it transpired during Dr Yoxall’s evidence that she had not been provided with the transcript of the previous ventilation of this matter before this Tribunal and nor had she been provided with the critically important prosecution QP9 material. Both the previous transcript and the QP9 documents appear in the remittal bundle. The result is that an inference can now be drawn that the Applicant selectively provided material to Dr Yoxall such as to deprive her of fulsomely fact-checking or cross-referencing whatever answer he gave her to a given question against what should have appeared in the remittal bundle before her. This does the Applicant’s credit no favours.
This predisposition towards dishonesty is a concerning facet of both the Applicant’s offending pattern and in his approach towards instructing Dr Yoxall. While he may be able to explain away his fraudulent conduct on the basis of committing it to obtain money in order to acquire illicit drugs, he cannot maintain such position with regard to the material he gave to Dr Yoxall and how he sought to explain some aspects of his conduct to this Tribunal or her. He purported to minimise much of his conduct resulting in a multiplicity of convictions for breaching domestic violence orders on the basis of those breaches deriving from exclusively verbal arguments as opposed to physical interference perpetrated upon a domestic partner-victim. On any reasonable view, the Applicant’s position on the breaches being exclusively limited to oral disputes does not square with the evidence.
Dr Yoxall conducted her usual thorough and detailed assessment procedure in relation to the Applicant. Following application of those testing methodologies upon him, Dr Yoxall concluded that:
·in terms of the Applicant’s risk of general reoffending he represented a, ‘…low to moderate level of risk of general reoffending and a low to moderate level of rehabilitation needs.’[28] To this assessment Dr Yoxall added that ‘The key risk factors for Mr Pillay are relapse to drug dependence.’;[29]
·in terms of the Applicant’s risk of domestic violence reoffending, ‘…if Mr Pillay remains abstinent from alcohol and drugs, and he manages his mental health then his risk of DV reoffending will remain low’.[30]
[28] A2, p 32.
[29] A2, p 32.
[30] A2, p 34.
Dr Yoxall attempted (as best as she could) to longitudinally understood how the Applicant’s difficulties with illicit drugs spawned the very serious offending resulting in two mandatory cancellations of his Visa. This longitudinal understanding took into account what the Applicant had told Dr Palk just prior to the previous ventilation of this matter in this Tribunal. Dr Yoxall then said the following in her report:
‘This leads to the current situation wherein Mr Pillay is once again in immigration detention, having had his visa cancelled for the second time. He is appealing this and hoping to have revocation reversed. He is once again stating that he will live a drug free, prosocial life if he is allowed opportunity to return to the Australian community.
The question of current risk of reoffending is therefore complex. I concur with Dr Palk that the primary factor that will determine if Mr Pillay reoffends is risk of relapse to drug use. If he relapses to heroin use, then the likelihood of a return to offending is very high.’[31]
[My emphasis and underlining]
[31] A2, p 36.
In terms of an overall finding of the Applicant’s recidivist risk Dr Yoxall said: ‘….it is my view that Mr Pillay does currently presents [sic] with a low risk of reoffending, as long as he doesn’t relapse to heroin use.’[32]
[32] A2, p 38.
A significant difficulty for the Applicant
I return to the letter dated 14 February 2020[33] provided by the Respondent’s Department to the Applicant immediately following re-instatement of his Visa after it had been mandatorily cancelled for the first time. There is no doubt the Applicant received this letter because there is a signed receipt in the material.[34]The terms of this letter could not be drafted in clearer terms. The relevant terms of the letter are as follows:
[33] R1, pp 101-103.
[34] R1, p 103.
‘Dear Mr Lesley Maburay PILLAY,
Notification of decision to revoke visa cancellation under section 501 CA(4) of the Migration Act 1958
On 15 February 2019, your Class BW Subclass 857 Regional Sponsored Migration Scheme visa was cancelled (original decision) under s501 (3A) of the Migration Act 1958 (the Act).
You were invited to seek revocation of the original decision and you made representations to the decision-maker about why the original decision should be revoked.
After consideration of your response, the decision-maker has decided to revoke the original decision to cancel your visa.
…
Warning: if you engage in further criminal or other serious conduct, this may again result in your visa being cancelled on character grounds.
WARNING FROM THE DECISION-MAKER:
"A stern warning should be issued to Mr PILLAY on this occasion, that he must refrain from further offending and continue to rehabilitate, especially given his addiction to heroin. He should not expect to receive any further leniency. The protection and safety of the Australian community is of paramount importance and a salient consideration.
The Government has a zero tolerance policy on domestic violence and this kind of behaviour will not be tolerated again nor will any further theft, property offences or breaches of judicial orders."’[35]
[Bold in original]
[35] R1, p 101.
I repeat that the Applicant has had his Visa mandatorily cancelled twice. Following the Visa’s reinstatement after the first mandatory cancellation, the Applicant offended within four months by committing the offence of ‘fraud-dishonestly obtains property from another.’[36] In addition, from the time he received the abovementioned letter of warning (February 2020) the Applicant committed some 21 additional offences that were punished by 19 months of head custodial time and which attracted orders for him to make restitution to defrauded victims in the cumulative sum of $11,738.93.
[36] In breach of section 408C(1)(B) of the Criminal Code Act 1899 (Qld).
The further point of the abovementioned letter is this: the significant majority of these types of letters of warning usually and only contain the words ‘Warning: if you engage in further criminal or other serious conduct, this may again result in your visa being cancelled on character grounds.’ It is, in my experience, rare for such a letter of warning to include a further ‘WARNING FROM THE DECISION MAKER’. In this further warning the decision maker sternly tells the Applicant:
·to refrain from further offending: totally ignored by the Applicant who committed 21 additional offences;
·to continue to rehabilitate, especially given his addiction to heroin: totally ignored by the Applicant who allowed his heroin addiction to run virtually out of control which can be seen in the predominance of his offending-after receipt of this letter-which involved committing crimes to obtain money to buy drugs;
·that the safety of the Australian community is of paramount importance: yet the Applicant-after receipt of this letter-directly threatened the safety of the community by his commission of at least 14 further fraud-derived offences;
·that there will be no further toleration of breaches of judicial orders: yet the Applicant-after receipt of this letter-has convictions for breaching his bail on six occasions[37] and failing to appear in accordance with a given undertaking one occasion[38]; and
·that he should not expect to receive any further leniency: yet the Applicant now asks for ‘…one more chance at life in Australia with my family and children.’;[39]
[37] Pursuant to section 29(1) of the Bail Act 1980 (Qld).
[38] Pursuant to section 33(1) of the Bail Act 1980 (Qld).
[39] A1, p 17 [70].
Claimed protective factors-family support and employment
The evidence points to several protective factors, none of which rise beyond the point of moderate sustainability or credibility. First, I will refer to the claimed protective factor of family support around the Applicant as a means of minimising his recidivist risk. The Hearing before me received evidence from a Ms Lorna Reddy who is the Applicant’s aunt. Until relatively recently, Ms Reddy worked in Mackay in the nursing field. She has since moved to the Ipswich area to work as a clinical nurse in mental health.[40] She is ‘…confident that I can offer Lesley [the Applicant] assistance and support through my work in the future.’[41]
[40] See A8.
[41] A8.
Ms Reddy was also cross-examined at the Hearing before me. She repeated her intention to provide support to the Applicant in these terms: ‘….wherever Lesley decides to live, so I am just waiting for if there’s a good response then I will, sort of , station where I can be able to support Lesley with accommodation or food or give him, you know, help him to go to community engagement.’[42] To the best of her understanding, the Applicant will go and live with his family if returned to the community. But she added that: ‘I am also [sic] left the door open for Lesley to come to me as I am able to provide accommodation, you know, if all else fails, I am there and I can also keep, like an eye on him,…’[43]
[42] Transcript, p 53, lines 25-29.
[43] Transcript, p 53, lines 46-47; p 54, lines 1-2.
Ms Reddy’s cross-examination revealed what is, to my mind, a significant flaw in her evidence. She was taken to her evidence at the last ventilation of this matter which involved the same thing she is saying now-that is, she was closely monitoring the Applicant and offering him some measure of support. Yet despite all of that, he returned to the community and reoffended. Her response to this challenge to her evidence was not convincing:
‘MR WEST: Now, the last time Lesley had his visa cancelled you provided a letter in support of him?
MS REDDY: Yes.
MR WEST: On that occasion?
MS REDDY: Yes. Yes.
…..
MR WEST: So in that previous statement, you said, ‘I have been closely monitoring him to make positive changes and I have been offering Lesley behaviour support.’ So you were doing that in 2020 when he was in detention last time?
MS REDDY: I was doing, yes. Yes. Yes, I was doing that and when I could visit I was coming to visiting him wherever he was.
MR WEST: Sure. But you accept though that even though you provided him with that support, Lesley offended again, didn’t he?
MS REDDY: I think, you know, I didn’t really do it to my 100 per cent because I was going through my divorce and troubling financially to visit often and I – that’s why I say I may have even failed him too because I remember when he reached out to me I basically told him to leave me alone, and since then I felt like he reached out to me and I didn’t – but at that time I couldn’t tell Lesley that I was going through a divorce – a difficult divorce and I was also just wanting to isolate myself so I – I feel I failed him in that regard.’[44]
[44] Transcript, p 54, lines 9-12; lines 24-38.
Second, the Hearing before me received evidence from another aunt of the Applicant namely, Ms Nancy Chetty. She says can she offer both personal/familial support and employment to the Applicant. Ms Chetty arrived in Australia in December 2019. Prior to that, she was part of a church in South Africa that was providing community outreach services to people in need.[45] She remains in contact with the people in the church she used to work with in South Africa and said that if the Applicant were returned there, the church she was associated with might be able to offer the Applicant some measure of pastoral care but not ‘…any kind of financial support or food parcel because they not even doing it for their present congregation.’[46] She was asked whether she is capable of providing any financial support to the Applicant and she responded in these terms:
‘MR WEST: And speaking of financial support, are you giving Lesley any financial support at the moment?
MS CHETTY: Very little. Now and again if he asks me for something, like to pay for a psychologist or something. I do that. But really it’s tough. It’s not a easy road here in Australia also, because we live in a rental property. So money is quite tough and I always explain that to Lesley. You know, I just don’t have – wish sometimes I could even give his partner for the upkeep of his child, which is quite a difficult thing for us to do.’[47]
[45] See generally Transcript, p 27, lines 4-25.
[46] Transcript, p 27, line 47; p 28, lines 1-2.
[47] Transcript, p 28, lines 4-10.
Ms Chetty operates a cleaning business and said that:
‘…it requires more staff, but I am finding it rather difficult to get reliable and responsible persons. I am able to offer a position to Lesley including the use of a company vehicle should he have his visa reinstated. I know my business will greatly benefit if he comes on board as I plan to branch out. I would like to train and mentor him to help manage my business with me. This will help me to have some much needed free time to rest as I now overwork myself due to staff issues.’[48]
[48] A10, p 2.
Third, the Hearing before me received evidence from someone whom the Applicant met during their mutual time in immigration detention. This person’s name is Mr Pera Wihongi-Lim. In his written statement[49] he says the Applicant ‘…has secured employment at the flooring company as a labourer until he can secure a job in his regular profession so that he is able to start work immediately…..meaning he would be able to support his family and help lift the burden of financial difficulties his family are facing currently.’[50]
[49] A11.
[50] A11.
Mr Wihongi-Lim was also gave oral evidence at the Hearing. During his evidence-in-chief, Mr Wihongi-Lim said that his workplace could offer the Applicant work ‘…immediately. Like, we’re looking for guys right now, just because we’ve had like an influx of work. I mean, I’m working like big hours to cover the workload.’[51] At other points of his evidence, this witness confirmed he did not have the power to hire and fire in his workplace and the basis of his offer of employment to the Applicant was that his employer asked him ‘….if I could, you know, round up anyone that could come and work.’[52]
[51] Transcript, p 36, lines 35-37.
[52] Transcript, p 39, lines 1-2.
Mr Wihongi-Lim also gave evidence about being able to offer the Applicant some short-term accommodation if the Applicant was returned to the community. He responded in these terms:
‘APPLICANT: Okay. Thank you. And just one more question: So if I was to be released into the community, all right, and if I needed any sort of help from you will you be able to help me? Let’s say accommodation. If an emergency came up and I needed a place to spend the weekend, or spend a night, you’d be able to help me? Yes?
MR WIHONGI-LIM: Bro, definitely I can help you. I mean, you know everything you’ve helped me with in there, after – if you needed to – if you had to you could come and live with me tomorrow.’[53]
[53] Transcript, p 36, lines 45-47; p 37, lines1-4.
Claimed protective factor–children
It is difficult to accept the Applicant’s now-claimed position that his biological and stepchildren represent some form of protective factor against him returning to the abuse of illicit drugs and consequential very serious offending. The Hearing before me heard evidence of an ophthalmic condition confronting the younger of his two biological children, Child N[54], who is currently aged one year. It is important to note that the Applicant was involved in illicit drug use and consequently offending at the time his partner was pregnant with Child N. More broadly, while the Applicant may say there have been minor biological and stepchildren dependent upon him in the past, this dependence he now propounds subsisted during a period in which he was abusing illicit substances and very seriously offending.
[54] The second in age of the Applicant’s two biological children.
The significant difficulty with his claim that minor children in his life can now act as a protective factor against him reoffending is that this factor did not curb his offending pattern in the past. Child E[55] is now six years of age. She is old enough for the Applicant to have had some measure of a parental relationship with her prior to his most recent Visa cancellation. Yet despite (1) a Visa cancellation before that one; and (2) the opportunity to meaningfully engage with Child E as her parent after that first cancellation was revoked, this claimed bond with Child E was not enough to prevent him resuming illicit drug use, very seriously reoffending such that his Visa was cancelled for the second time.
[55] The first in age of the Applicant’s two biological children.
A similar difficulty exists with his claim about a close bond with two of his stepchildren following his previous release from immigration detention. Once again, his claim of a strong level of connection with those children did not prevent from returning to illicit drug use and likewise did not prevent him from repeatedly reoffending to source money to pay for his drug addiction.
Findings about risk

I have identified the following factors speaking to the Applicant’s recidivist risk and will comment on each of them as follows:
·the Applicant’s evidence: the Applicant (to his credit) readily accepts that he ‘…was pretty much high all the time before my incarceration and when I was not, I was looking for my next fix.’ He acknowledges that his difficulties with illicit drugs has been ‘….the root cause of all of my offending.’ There is evidence of his completion of a number of courses during his 17-18 months in immigration detention. There is also evidence of his engagement with two psychologists, Mr Fredi Bashour and Dr Josh Kelly. The Applicant professes being ‘committed to future rehabilitation’ and of returning to an otherwise responsible life as a parent and bread winner. He accepted he has relapsed into illicit drug use in the past but suggests that he is not likely to relapse in future because (1) he has a greater insight into the nature of his addiction; and (2) he has protective supports around him;
Turning firstly to his greater level of insight and its potential for prevention of any relapse, the highest his evidence went was for him to suggest that if faced with cravings and a desire to resume illicit drug use in the community, ‘I can spot it from a mile away this time.’ He went on to suggest ‘it’s a lot harder for me to relapse…’ and ‘I am in a position now that I can spot it before it gets to that [i.e. a relapse].’
Turning secondly to his claimed protective factors, it cannot be safely found that the now-claimed protective factors will assist him to any greater extent in the future than they have in the past. He had family support around him prior to both his first and second Visa cancellations. None of that support curbed his propensity to abuse illicit drugs and to very seriously offend. He is a qualified locksmith. He could have returned to this trade even in the circumstances of his offending involving his work as a locksmith.[56] This did not curb his offending. Accordingly, there is little to suggest that future employment with his aunt (as a cleaner) or in the same workplace as Mr Wihongi-Lim (in the flooring trade) would have any greater potential to curb his offending.
The third now-claimed protective factor is that of his biological and stepchildren. He has only physically met Child N during his time in immigration detention. He was drug-addicted and very seriously offending while his partner was pregnant with Child N. Despite a claimed past parental connection with Child E, this did not prevent his offending that saw his Visa mandatorily cancelled on two occasions. The same finding can be made about his now-claimed parental connection with at least two of his stepchildren;
·the expert opinion propounded at the Hearing before me was that of Dr Jacqui Yoxall. At the previous ventilation of this matter before this Tribunal (differently constituted) the Applicant told his previously-retained expert witness (Dr Gavan Palk-psychologist) that he would not use heroin again, that he was fearful of causing another mandatory cancellation of his Visa and that he was fearful of a resulting deportation to South Africa. His subsequent conduct bears little or no resemblance to what he told Dr Palk.
The significant difficulty with the report and findings of Dr Yoxall is to be found in what the Applicant did not tell her or did not brief to her during her efforts to obtain detailed instructions from him. There is, as I have outlined above, a serious inconsistency between what is recorded about his unlawful conduct in the material and how that conduct was reported to Dr Yoxall. As I mentioned above, whatever gamble he thought he was taking with Dr Yoxall perhaps not being able to turn up the relevant detail demonstrating inconsistency in what he was telling her may have paid off (or regrettably embarrassed) in terms of the findings of an expert professional like Dr Yoxall, that gamble goes nowhere with this Tribunal. The Applicant selectively provided material to Dr Yoxall such as to deprive her of a capacity to fact-check or cross-reference what he was saying to her compared to what the material said about him.
Both Dr Palk and Dr Yoxall were clear in their opinion that if returned to the community and the Applicant were to relapse into heroin use, his likelihood of a return to offending is very high. The fact that at least two experts predicate their recidivist risk findings on the Applicant remaining drug-free is a matter of concern. This is because (1) there is a lack of any type of defined clinical support or rehabilitative pattern the Applicant will become engaged in if returned to the community; and (2) none of the previously-claimed supports (family, employment, children) have curbed his propensity to resume abusing illicit substances and to very seriously offend.
The other difficulty with reports of the type furnished in these matters by suitably qualified experts like Drs Palk and Yoxall is that they are configured from what is told to them by a person aspiring to return to the community while they are in the closed confines of either prison or immigration detention. Of course an applicant is going to tell the expert ‘there is little or no drugs in here, I haven’t taken them since I have been in here because they are harder to get in here.’ Experts like Drs Palk and Yoxall have the unenviable task of bridging the recidivist gap between an applicant’s claimed drug-free posture in prison/detention and what the projected position will be if that applicant is returned to the community. That risk can be hedged against (1) what has transpired in the past; (2) identified and proven protective factors; and (3) the capacity of the expert’s report to resist a challenge to its integrity. Here, we have an Applicant whose Visa has been twice mandatorily cancelled, where none of his now-claimed protective factors have curbed his offending in the past and where the state of the material he briefed to Dr Yoxall (and answers he provided to her) now serve to significantly challenge the integrity of her findings. To be clear, this is not at all the fault of Dr Yoxall;
·the letter of warning from the Respondent’s Department dated 14 February 2020 furnished to the Applicant: I have recounted the stern warning contained in this letter. Even after his Visa was reinstated which occurred concurrently with receipt of this letter, the Applicant re-offended within four months and then proceeded to commit some 21 additional offences punished by 19 months of head custodial time which also required him to make restitution to victims of his fraudulent conduct in the cumulative sum of nearly $12,000. He totally ignored the contents of the letter requiring him to (1) continue to rehabilitate from his heroin addiction; (2) bear in the mind the paramount importance of the safety of the Australian community; (3) understand that the Respondent would tolerate no further breaches of judicial orders; and (4) understand that he should not expect any further leniency.
[56] See generally, Transcript, p 87, lines 38-46; p 88, lines 1-35.
Assessment of recidivist risk
The Applicant’s evidence about being able to successfully resist a relapse into illicit drug use is vague and, ultimately, unconvincing. The integrity of the findings of Dr Yoxall has, to my mind, been seriously impugned by the manner in which the Applicant has caused material to be briefed to her and in certain of the responses he provided to her questions. This of course, is in no way the fault of Dr Yoxall. Both experts strongly predicate their findings about the Applicant’s recidivist risk on his capacity to remain drug free. I am not convinced that any of his claimed supports-family, employment, children-will now serve to curb his offending any more effectively than they have in the past. To my mind, this Applicant has had his final warning. It appears in the abovementioned letter from the Respondent’s Department dated 14 February 2020. He totally ignored every single one of the warnings appearing in that letter.
The only safe finding about his recidivist risk is this: I will initially and cautiously accept the findings of Drs Palk and Yoxall about the Applicant representing a low recidivist risk but note that they both heavily predicated their respective findings on the Applicant’s capacity to remain drug free if returned to the community. However, I have little or no faith in his capacity to do so given (1) his less than convincing evidence of having any such capacity; (2) the past failure of now-claimed protective factors to curb his offending; and (3) his brazen and appalling failure to heed the stern warning from the Respondent’s Department after the first cancellation of his Visa, only to reoffend to the extent of triggering a second mandatory cancellation of his visa. Therefore, I will conclude (and find) that this Applicant represents no different a recidivist risk now than was the case at the time of his most recent removal from the community.
Sub-paragraph 8.1.2(2)(c)
The Direction also contains a reference to sub-paragraph 8.1.2(2)(c). With reference to this specific sub-paragraph, this matter does not involve a ‘refusal to grant a visa to a
non-citizen’. It involves an application for the ‘revocation’ of a decision refusing to revoke the earlier mandatory cancellation of the Applicant’s Visa. This specific paragraph is not relevant to the determination of this application.
Conclusion of Primary Consideration 1:
With reference to the weight attributable to this Primary Consideration 1:
(a)I have found the nature and seriousness of the totality of the Applicant’s conduct to date has been very serious;
(b)I have found that recommission of all or part of the Applicant’s offending would have the potential for the occasioning of physical, psychological, measurably material and, quite realistically catastrophic harm to its victims;
(c)I have cautiously adopted the findings of Drs Palk and Yoxall about recidivist risk being heavily predicated on the Applicant’s capacity to remain drug free. I have little or no faith in him doing so for reasons I have outlined. I have therefore concluded that he now represents now different a recidivist risk than he represented at the time of his most recent removal from the Australian community.
My analysis of the material leads me to a finding that this Primary Consideration 1 confers a very heavy level of weight towards this Tribunal affirming the Decision Under Review.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
1The 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 (see paragraph (3) below).
2This consideration is relevant in circumstances where:
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
3In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
(a)the frequency of the non-citizen’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 person’s last known act of family violence, including:
(i)     the extent to which the person accepts responsibility for their family violence related conduct;
(ii)    the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii)   efforts to address factors which contributed to their conduct; and
(d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
The Applicant has respective convictions for contravention of domestic violence order (aggravated offence)(x2) and contravention of domestic violence order (x3). There were two domestic violence orders the Applicant breached giving rise to these convictions and those domestic violence orders related to two separate victims. The names of the two victims are rightfully redacted in the Police documents. I will refer to the first victim as Ms A.N.A.
With reference to the Applicant’s family violence conduct towards Ms A.N.A, the material records the following:
‘At 03:00 am on the 19/01/2012 police attended [redacted in original] after the agg [name redacted in original] rang 000 stating her boyfriend Resp Lesley PILLAY was assaulting her. On arrival the resp PILLAY had left the address and police spoke with the agg. The agg had a visible bruise under her left eye.
The agg stated that earlier in the night at 8:00 pm she had gone to dominos pizza at Holland Park with a friend. The agg stated her boyfriend had rung her phone but she had not answered. On returning to her [redacted in the original] t the agg noticed a red VW hatch parked on the street near her mothers home and when they drove into the driveway the red VW hatch drove across her mothers driveway. The resp got out of the red VW hatch and has approached the agg and has said "you fucking slut, you had to go and fuck someone". The agg told the resp that she had just gone up the road to buy pizza with a friend. The resp has looked into the car and said "so you can't get dick so you have to get pussy". The resp has walked back to the red VW car and has driven away.
The agg has walked to her mother's front door and her friend has driven away when she noticed the resp drive back down the street and stop outside her mother's house. The resp has come inside the aggrieved mother's house and was questioning the agg as to where she had been and who she was with. The agg could see her mother was upset with this and has taken the 3 children and the pizzas and has gone with the resp back to her unit. The agg has given the 3 children the pizza to eat in the loungeroom and has gone into her bedroom where the resp has followed her into the bedroom shutting and locking the door behind him.
The resp has grabbed the agg around her neck with his left hand. The agg has hit her head causing a lump as the resp pushed her against the wall. The agg has pushed away from the resp and he has then pushed the agg onto the bed. The resp was on top of the agg hitting her and has given the agg a black eye. The agg has told the resp to get off her as he was hurting her and she began to cry. The resp has moved off the agg and she has walked out of the room and out the front door of the unit and the resp has followed. The agg and resp have talked for a while outside.
The resp rang his brother who arrived a short time later and swapped over cars and the resp has then had a shower and left the address.
At about 12:30 am on 19th January 2012 the resp has returned to the agg address and has started to watch TV turning the volume up high. The agg has asked the resp to turn down the TV and another argument has started. The agg has started to dial in 000 on her mobile phone when the resp has placed her in a headlock saying "Let's see if you can do it". The resp has hung up the phone and shortly later the phone has rung and it was the 000 operator asking the agg if she needed police. The resp has again hung up the phone and the 000 operator has rung back. The agg told the resp that the operator would send police if she did not answer the phone. The agg has answered the phone and has asked for police to attend and the resp was in the background asking the agg to tell the 000 not to send police. About 5 mins after the phone call the resp has left the address.
There are previous incidents of DV which are increasing. There was no weapon involved. There was no damage. The aggrieved has sustained a black eye, and the respondent was not present at the time of police arrival. Alcohol and drugs were not a factor. There was no threats to harm or abduct the children. The children were not in view of the incident but were in ear shot.
GENERAL REPORT
Police have attended and took up with the aggrieved who stated that the respondent had left prior to Police attending. Police observed that the aggrieved had a bruised left eye and bruises on her left arm which the aggrieved stated was caused by the respondent. Full statement taken from the aggrieved. Photographs were also taken by Police of the aggrieveds injuries. All children were asleep whilst Police were at the job address. No other witnesses involved. An assault complaint is not being made at this time. SOC not required.
The matter was reported to Police by the aggrieved. The living conditions were safe and sanitary. The children appeared happy and healthy. Unknown what school or daycare the children attend. All parties are Caucasian and speak English. There are no concerns for the mental health of any party.’[57]
[57] R1, pp 1312-1313.
With reference to the second victim-the Applicant’s ex-wife, Ms RP-and the family violence conduct he perpetrated on her, the material records the following:
‘At about 2.40pm on 11th of February 2018 Police from Holland Park Station attended [redacted in original] in relation to a information from the Respondents mother who telephoned Police Communications Centre that a loud disturbance was occurring and she was concerned for the safety of the Aggrieved and her granddaughter.
Police spoke with the Aggrieved who stated the Respondent had left a short time earlier.
The aggrieved provided a typewritten statement stating that between about 1pm and 2.20pm on 11th February 2018 she was asleep on her bed, with her baby and the respondent has barged into the room, demanding $20 for fuel.
When denied the money, he became angry and said, "Ill fucking show you".
When he has left the room, the aggrieved heard a loud bang.
The respondent returned into the room and demanded $10 for fuel. The aggrieved stated she did not have the money. The respondent then told her, "I'm going to fuck you up." The respondent then told the aggrieved to lend him her phone because he wanted to phone his mother. The aggrieved denied this request, fearing the respondent would damage the phone.
The aggrieved then phoned the respondent's mother and spoke to her, stating that the respondent was threatening her for money, asking her to call him.
DAMAGE TO PHONE: At this time, the respondent has then tried to grab the phone out of the aggrieved's hand with his right hand with a large degree of force. The aggrieved has then discovered the phone screen was cracked on the right hand side.
A further discussion took place in relation to the respondent trying to obtain money from his mother and the aggrieved at which time, the respondent said to his mother, "She's a fucking bitch, a dog and she's sitting with money and can't give me money for fuel." The respondent then asked his mother, "Are you going to give me the $20, you are taking the bitches side, Im going to fuck her up and then come there and fuck you up.
Shortly after this, the respondent demanded the aggrieved phoned two other numbers, saying they were in relation to work, but there was no answer on either number.
The aggrieved stated she heard the respondent having another conversation on the phone with his mother, at which time, the aggrieved heard him say, "Let her fucking go, she's a fucking bitch, I'll show her, I'll kill her."
The respondent then stated, "Why did you come back from South Africa and the aggrieved replied, "I was forced back because of [redacted in the original] and said, "Yes I will go back". The respondent replied "This time you will fucking go back yourself, you are not taking the baby, I will murder you."
The aggrieved left the lounge and went to the bedroom to feed the baby, observing the respondent to leave the unit block carpark towards the roadway on [redacted in original].
DAMAGE TO TELEVISION AND PLAQUE. The aggrieved stated she then came back into the lounge room to see what the noise was she heard earlier and saw the television was damaged with a dent in the right hand side of the screen. Upon police arriving, the aggrieved also observed a wall plague which had been hanging on the wall near the kitchen was on top of the lounge chair and was broken into pieces.
On 12th February 2018 the defendant was interviewed in an electronically recorded ROI at Holland Park Police Station in relation to the matter. He denied the allegations made by the Aggrieved. On 19th March 2018 the defendant was located on Logan Rd, Holland Park West and agreed to accompany Police to Holland Park Station where he agreed to take part in an electronically recorded record of interview regarding this matter.
He again denied the allegations of the Aggrieved and stated the damage to the television was pre-existing and he was unaware of damage to the plaque. He stated he didn't grasp the phone at all and didn't damage it.
The defendant has been convicted in the Brisbane Magistrates Court on 15/10/2013 for a Breach of Domestic Violence Order. Notice of Intention to Allege Previous Conviction has been served on defendant."’[58]
[58] R1, pp 1191-1192.

With reference to the propositions in paragraph 8.5(1) of the Direction, this sub-paragraph is expressed thus:
1The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
This Applicant has breached the Australian community’s expectations by his record of criminal offending in this country which is evidenced by a significant number of breaches of the Australian criminal law. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.
The Direction also states that visa cancellation or refusal, or non-revocation of a 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 conduct, in Australia or elsewhere, of the following kind:[204]
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
[204] Paragraph 8.5(2) of the Direction.
The Applicant’s criminal history contains convictions falling within the auspices of:
·the immediately preceding sub-paragraph(a) (acts of family violence against an ex-partner);
·sub-paragraph (c) (a serious crime committed against an elderly person); and
·sub-paragraph(d) (commission of crimes against government representatives or officials – the police – in the performance of their duties).
The commission of these offences means that the Australian community expects the Australian Government can and should refuse to set aside the mandatory cancellation of his Visa.
The remaining question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(4), (5) and (6) of the Direction. In summary these are:
(a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;
(b)the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[205]
(c)Australia will generally afford a higher level of tolerance towards criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age;[206]
(d)the community’s level of tolerance will rise based on the length of time a non-citizen has spent in this country and, in particular, whether their formative years were spent here;[207]
(e)the nature of a 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 a visa outcome that is not adverse to the non-citizen;[208] and
(f)if a non-citizen’s unlawful conduct is inherently of the type captured by any of the categories stipulated in paragraph 8.5(2)(a)-(f)(inclusive) of the Direction, then even strong countervailing considerations may not assist a non-citizen even where the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[209]
[205] Paragraph 5.2(4) of the Direction.
[206] Paragraph 5.2(5) of the Direction.
[207] Paragraph 5.2(5) of the Direction.
[208] Paragraph 5.2(6) of the Direction.
[209] Paragraph 5.2(6) of the Direction.
In relation to sub-paragraph (a) of the immediately preceding paragraph [161], the term ‘limited stay visa’ is not defined in the Act. The Applicant in this case held a Class BW Subclass 857 Reginal Sponsored Migration Scheme visa until it was mandatorily cancelled (for the second time) on 15 August 2022.[210] As the Applicant continued to hold this Visa until it was mandatorily cancelled, it can be safely concluded that this Visa permitted the Applicant to remain in Australia without any end point on his stay.[211] Further, it is can also be safely concluded that if his Visa was not mandatorily cancelled in August 2022, the Applicant would have continued to hold the Visa and thus remain in Australia indefinitely. As the Visa permitted the Applicant to remain in Australia without any limit on the duration of his stay, the Visa held by the Applicant cannot be classified as a limited stay visa.[212] Therefore this sub-paragraph (a) is not applicable to the Applicant.
[210] R1, pp 105-111.
[211] Regulation 857.511 of Migration Regulations 1994 (Cth).
[212] Walker v Minister of Home Affairs [2020] FCA 909 at [29].
In relation to sub-paragraph (b) of the abovementioned paragraph [161], the Applicant has resided in Australia from November 2008 when he was 22 years old. He is currently aged 38 years. He has a history of remunerative employment in Australia. He has fathered two biological children in Australia. Whatever participation in, and contribution to, the Australian community he may have made during his time here cannot be safely found to have been ‘short’. Therefore, the Australian community’s tolerance is not lowered by this part of the principles in 5.2(4) of the Direction.
In relation to sub-paragraph (c) of the abovementioned paragraph [161], I repeat that the Applicant has resided in Australia since November 2008 when he was aged 22. He is currently 38 years of age. He has spent about 4o percent of his life in this country since his initial arrival as a 22-year-old. This means that the Australian community has a higher than usual tolerance of criminal or other serious conduct by this Applicant.
In relation to sub-paragraph (d) of the abovementioned paragraph [161] I am of the view that the 16 year period of time the Applicant has spent here facilitates a slight raising of the community’s level of tolerance for his offending. This finding cannot be augmented due to him not having spent his formative years in this country.
In relation to sub-paragraph (e) of the abovementioned paragraph [161], I am not of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant recommitting his criminal offending of the same type and magnitude already committed and (on the other hand), whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community’s expectations for present purposes. This is because I am of the view that the nature and extent of the Applicant’s offending and the harm resulting from it thus far has been of such a significant and serious magnitude as to potentially dispel any applicable countervailing considerations.
In relation to sub-paragraph (f) of the abovementioned paragraph [161], I have found that at least part of the Applicant’s offending is captured by sub-paragraphs 8.5(2)(a), (c) and (d) of the Direction. Given that finding, even strong countervailing considerations in his favour may not assist the Applicant. Therefore, my finding must be that the nature of his offending effectively precludes any countervailing considerations working in his favour.
Having regard to the above discussion around sub-paragraphs (a)–(f) (inclusive) referenced in paragraph [161] of these Reasons, I am of the view that the Australian community’s expectations are not modified such that the community does not have a higher than usual tolerance of criminal conduct by the Applicant. Because of the very serious nature of the Applicant’s offending, this Primary Consideration 5 compels a finding that the community expects the Australian Government can and should refuse to set aside the mandatory cancellation of the Applicant’s Visa. I so find.
Conclusion: Primary Consideration 5
Primary Consideration 5 confers a heavy level of weight in favour of this Tribunal affirming the Decision Under Review.
OTHER CONSIDERATIONS
Other Considerations (a): Legal consequences of the decision
With initial reference to Other Consideration (a), I accept that the Applicant does not claim to be owed non-refoulement obligations arising from any removal to South Africa.[213] Consequently, were this Tribunal to affirm the Decision Under Review, the Applicant would be liable to removal from Australia as soon as reasonably practical. I am of the view that the totality of the evidence before the Tribunal does not otherwise compel ventilation or analysis of this Other Consideration (a) of the Direction. I will put this Other Consideration (a) to one side and allocate neutral weight to it.
Other Consideration (b): Extent of impediments if removed
[213] See generally, Transcript, p 99, lines 1- 22.
Factors to be taken into account
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
Paragraph 9.2(1)(a)
: the Applicant is 38 years of age. I am not of the view that his age now presents as an impediment to his return and resettlement in South Africa. In terms of any health impediment(s), it should be noted that in his efforts to revoke the first mandatory cancellation decision, the Applicant obtained a report from the forensic psychologist, Dr Gavan Palk. That report is dated 12 June 2019. In that report, Dr Palk opined that ‘Currently, there is evidence of separation anxiety and mild depression…’[214] Dr Palk also thought the Applicant had an ongoing ‘heroin dependency’.[215] In his PCF, (dated 16 August 2022) the Applicant ticked the ‘No’ box in response to the question about whether he has any diagnosed medical or psychological conditions.[216] He refers to taking the medication ‘mirtazapine ’ which he says was prescribed to him for ‘ansiety [sic], sleep’.[217] He says in his PCF ‘I suffer from serious anxiety disorder, it effects my sleep.’[218] There followed (in time), the report of the clinical psychologist, Dr Yoxall which is dated

23 February 2024. Dr Yoxall thought that the Applicant’s responses to questions she put to him as part of her mental health examination ‘…indicate ongoing anxiety symptoms, specifically related to past traumatic events….and current fears’.[219] As best as I recall the evidence, the Applicant does not have any notable or significant physical health symptoms.
[214] R1, p 333 [6.1].
[215] R1, p 333 [6.5].
[216] R1, p 79.
[217] R1, p 75.
[218] R1, p 75.
[219] A2, p 28 [8.3].
Paragraph 9.2(1)(b): the Applicant lived the first 22 years of his life in South Africa and I am hard pressed to now be convinced that there is any language barrier impeding his return and resettlement in South Africa. Likewise with any cultural barriers. To live one’s early childhood, plus adolescent and teenage years plus one’s early adulthood in the same country must surely give rise to a level of cultural familiarity that can be readily recalled if that person is returned to that country at the age of 38. It should also be noted that at the previous hearing the Applicant gave evidence of having a basic understanding of both Zulu and Afrikaans and that he has travelled to South Africa for holidays on three occasions comprising: (1) 23 December 2008 to 23 January 2009; (2) from August 2010 to February 2011; and (3) 16 November 2012 to 2 December 2012.[220] Therefore, I cannot identify any language or cultural barriers impeding the Applicant’s return and resettlement in South Africa.
[220] See, R1, pp 2043 and 2o47.
Paragraph 9.2(1)(c): I am mindful that before the Tribunal is a report titled ‘Report of the National Investigative Hearing Into The Status of Mental Health Care in Africa’.[221] This report was prepared in November 2017. I am also mindful of the Applicant’s contention that ‘I am concerned that my mental health/addiction issues will considerably deteriorate if I was deported to South Africa. I would be a shattered man…I would suffer lifelong sadness, heartbreak and insurmountable hardships.’[222] I have two concerns about this contention arising from the material before me. First, I am mindful of the views of Drs Palk and Yoxall when they talk about the primacy of the Applicant maintaining an abstinence from illicit substance abuse (mainly heroin) as a basis for not returning to a pattern of offending. Second, I am also mindful of the observations of both Drs Palk and Yoxall regarding the Applicant’s predisposition to melancholic patterns of thought and behaviour which have, in turn, predisposed him to illicit drug use as a means of reliving himself of such thoughts.
[221] A19.
[222] A1, pp 16-17 [62].
During his cross-examination, the Applicant was challenged about his capacity to source, obtain and receive mental health support in South Africa. It will be recalled that he has at least some measure of a history of involvement with psychological clinicians in Australia. He was asked a question about whether he would be able to do online rehabilitative courses offered in Australia while he is in South Africa. The Applicant responded with ‘If it’s available there, you know, then yes.’[223] He was also asked a question about whether he would attend a ‘Narcotics Anonymous’ meeting in South Africa and he responded with ‘I’d be able to do that, yes.’[224] This oral evidence is somewhat at odds with the Applicant’s written evidence in which he says ‘I would be unable to continue rehabilitating in South Africa. The evidence shows that South Africa has a very poor healthcare system.’[225] For present purposes I will accept that South Africa’s publicly available mental health system may perhaps not be at the same level to what the Applicant has experienced in Australia. But that does not mean South Africa is entirely devoid of publicly available mental healthcare. For present purposes, I will find that the difference between South Africa’s and Australia’s publicly available mental healthcare systems will present an impediment to the Applicant’s return and resettlement in South Africa.
[223] Transcript, p 14, line 26.
[224] Transcript, p 14, lines 29-30.
[225] A1, p 17 [64].
In terms of social support, it cannot be ignored that the Applicant’s brother is a recent returnee to South Africa. The brother lives in East London. The Applicant spoke about ‘…most probably [going] to Durban because that’s-you know, that’s where I grew up.’[226] The Applicant also told the Hearing that East London and Durban are about six hours apart.[227] I presume these are six driving hours. Therefore, the Applicant will have at least some measure of social support from his brother in South Africa. I receive with caution the Applicant’s submission to the effect that ‘I do not have any real ties in South Africa.’[228] At the previous hearing the Applicant gave evidence that in addition to his brother he has an uncle (his father’s brother) and 10 cousins residing in that country.[229] So it is not true to suggest that the Applicant does ‘…not have any real ties in South Africa’. That said, I will find that the relative difference in terms of closeness and familiarity between the Applicant’s ties to his partner, immediate and extended family in Australia compared to the nature of those ties he has with relatives in South Africa will present an impediment to his return and resettlement in South Africa.
[226] Transcript, p 12, lines 32-33.
[227] See generally, Transcript, p 12, lines 46-47.
[228] A1, p 16 [59].
[229] See R1, pp 2044-2046.
In terms of economic support available to him in South Africa, the Applicant contends that ‘There is a real prospect that any prospective employer would not wish to employ me on the basis of my criminal record in Australia.’[230] The difficulty with this evidence is to be found in the experience of the Applicant’s brother who, as mentioned, is a relatively recent returnee to South Africa as a result of the loss of his visa status to remain here consequent upon the extent of his unlawful conduct in this country. The following exchange occurred between the Applicant and his cross-examiner at the Hearing before me:
‘MR WEST: Your brother has an Australian criminal history, doesn’t he?
APPLICANT: That’s correct, yes.
MR WEST: And he’s managed to find employment in South Africa?
APPLICANT: It took him a while, and it – it was definitely a problem for him, and it still is, because he’s – he’s having a problem right now, because of that as well.
MR WEST: But he’s found employment in South Africa?
APPLICANT: He did.’[231]
[230] A1, p 16 [61].
[231] Transcript, p 13, lines 7-14.
In fairness to the Applicant, it is important to discuss the evidence of his brother, Mr Damien Pillay who provided both written and oral evidence at the Hearing before me. Mr Damien Pillay spent three years in Australian immigration detention until his eventual removal to South Africa in July 2023. His written statement says:
‘I have absolutely no family here. Everything is really bad here…..There is no government support as i [sic] have been living in another country and paying taxes, i [sic] have to work and pay taxes for 12 months before i [sic] am entitled to any government assistance, however once that occurs I will be entitled to R400 a month, a loaf of bread and 2L of milk at the corner store is R37. I spent a few months homeless and on the streets and currently I am living in a boarding house which is not stable or safe…I pay R2500 a month not including water, electricity and food, I only afford to pay half the other half my mum helps me with from Australia.’[232]
[232] A14.
Mr Damien Pillay was also cross-examined. He told the Hearing that he has a job in South Africa. It is not a full-time job and involves him working as ‘…a helping hand at a regional store….packing shelves.’[233] He was asked whether upon the Applicant’s return to South Africa he would be able to provide him with information as to where to find somewhere to live and get a job. Mr Damien Pillay responded with ‘I can provide information. Yes. But I am like 99 per cent sure its going-its not just easy, mate.’[234] Therefore, it can be found that the difference between the extent of Centrelink or government social security benefits the Applicant would receive in Australia compared to South Africa would represent an economic impediment to his return and resettlement in South Africa. As against that, there is the evidence of the brother who, while not landing in the lap of luxury upon his return to South Africa has, nevertheless, found accommodation, found employment and is gradually re-establishing himself in that country.
[233] Transcript, p 34, line 19 and line 25.
[234] Transcript, p 34, lines 33-34.
Findings about impediments

Given my findings about (1) the extent of mental health impediments as a result of comparative differences between publicly available mental healthcare in Australia and South Africa; and (2) impediments arising from comparative differences in social, medical and economic support the Applicant would experience in South Africa compared to what he knows in Australia, I am of the view that this Other Consideration (b) confers a strong level of weight in favour of this Tribunal revoking the mandatory cancellation of the Applicant’s Visa.
Other Consideration (c): Impact on victims
Most usually in these applications, this Other Consideration (c) weighs either neutrally or against an Applicant. It weighs neutrally because there is no statement from a victim in which that victim talks about how they would be impacted in the event an applicant were successful in this type of application. It weighs against an applicant where the Tribunal has such a statement from a victim expressing how they would be adversely impacted by a decision facilitating a return of the applicant to the Australian community.
Here, we have one of the victims of the Applicant’s offending, namely, his former wife Ms RP, who has made two statements during the history of this matter. They are respectively dated 12 June 2019 and 18 June 2019. In both of these statements she says the following:
‘I do believe that Lesley [the Applicant] is remorseful and that given the correct assistance, he will be able to fully rehabilitate himself and be the man we all know and love.
I ask that the court consider allowing Lesley to remain in Australia for the most important reason, our daughter. I believe that she deserves a relationship with her dad and to be afforded the opportunity to know and experience him.’[235]
[235] R1, pp 262 and 285.
There is authority for the proposition that the evidence of a victim who is supportive of an Applicant remaining in Australia can be taken into account and can work in favour of an Applicant. This scenario was contemplated by His Honour Justice Kerr in PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235. When discussing two other relevant authorities, His Honour noted:
‘57 I am satisfied that nothing in CGX20 as has settled the construction to be given to cl 14.4[236] requires, contrary to that guidance, a victim to be heard only as to such impacts as weigh in favour of the cancellation of a visa. I reject that DKN20 requires it.
58 It can be accepted that usually such impacts will weigh in favour of the cancellation of an offender’s visa.
59Usually, but not always.’ [237]
[236] Note to reader: His Honour Kerr J is referring to clause 14.4 of Ministerial Direction 79, which was the relevant Ministerial Direction in force at the time.
[237] [2021] FCA 1235, [57]-[59].
I note the following with regard to Ms RP’s evidence: (1) her two statements are nearly five years old; (2) she did not give oral evidence to the previous Tribunal hearing or the present one; and (3) she appears to be on less than cordial terms with the Applicant in terms of facilitating any contact time between the Applicant and Child E who, as will be recalled, is the biological child they share. Be that as it may, I will cautiously have regard to Ms RP’s two statements and I will, pursuant to the authority of PGDX, allocate a moderate level of weight to this Other Consideration (c) in favour of setting aside the Decision Under Review.
Other Consideration (d): Impact on Australian business interests
The parties are in agreement[238] that this Other Consideration (d) is not engaged by the facts of this matter. I agree with the parties and will allocate neutral weight to it.
[238] For the Applicant, please see Transcript, p 105, lines 7-12; for the Respondent, please see Transcript, p 81, lines 31-39 and R2, p 24 [83].
Findings: Other Considerations
The allocation of weight to the Other Considerations in the present matter can be summarised as follows:
(a)legal consequences of the decision: is of neutral weight;
(b)extent of impediments if removed: is of strong weight in favour of revocation;
(c)impact on victims: is of moderate weight in favour of revocation; and
(d)impact on Australian business interests: is of neutral weight.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant’s Visa: either the Applicant must be found to pass the character test; and if not, I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation decision. As noted (and found) previously in these Reasons, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the power afforded by s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s Visa, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: carries a very heavy level of weight in favour of affirming the Decision Under Review;
·Primary Consideration 2: carries a very heavy level of weight in favour of affirming the Decision Under Review;
·Primary Consideration 3: is of a strong weight in favour of setting aside the Decision Under Review;
·Primary Consideration 4: is of strong weight in favour of setting aside the Decision Under Review;
·Primary Consideration 5: carries a heavy weight in favour of affirming the Decision Under Review.
I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined weights I have allocated to Primary Considerations 3 and 4 plus Other Considerations (b) and (c) are outweighed by the combined weights I have allocated to Primary Considerations 1, 2 and 5.
A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding that there is not another reason to revoke the mandatory cancellation of the Applicant’s Visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), this Tribunal affirms the decision made on 20 April 2023 by a delegate of the Respondent to not revoke the mandatory cancellation of the Applicant’s Class BW Subclass 857 Regional Sponsored Migration Scheme visa.

I certify that the preceding 191 (one hundred and ninety-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

.............[SGD]..........
Associate
Dated: 15 April 2024

Dates of hearing: 6 and 7 March 2024

Applicant: Self-represented litigant

Solicitor for the Respondent: Mr West (Associate)

Sparke Helmore Lawyers
ANNEXURE A

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE RECEIVED

RESPONDENT SUBMISSIONS

R1

Remittal bundle

Various

8 January 2024

R2

Statement of Facts, Issues and Contentions

8 February 2024

8 February 2024

APPLICANT SUBMISSIONS

A1

Applicant’s personal statement

Undated

24 January 2024

A2

Report from Dr Jacqui Yoxall

23 February 2024

23 February 2024

A3

Evidence bundle

Various

24 January 2024

A4

Further evidence bundle

Various

25 January 2024

A5

Submission on impact of domestic violence and maltreatment

Various

25 January 2024

A6

Statutory declaration by Ms Siobhan Correia

Undated

24 January 2024

A7

Handwritten statement by Ms Siobhan Correia

14 February 2024

16 February 2024

A8

Letter of support from Ms Lorna Reddy

13 February 2024

13 February 2024

A9

Letter of support from Ms Yvonne Govender

12 February 2024

13 February 2024

A10

Letter of support from Ms Nancy Chetty

9 February 2024

12 February 2024

A11

Letter of support from Mr Pera Wihongi-Lim

11 February 2024

12 February 2024

A12

Letter from Siobhan’s case manager at Salvation Army

10 January 2024

24 January 2024

A13

Letter of support from Ms Sylvia Budulica

19 May 2023

25 January 2024

A14

Letter of support from Mr Damien Pillay

14 February 2024

15 February 2024

A15

AAT decision in Mr Damien Pillay’s case ([2022] AATA 270)

21 February 2022

16 February 2024

A16

Support letters from children

Various

16 February 2024

A17

Child N’s name meaning

Undated

25 January 2024

A18

Bundle of course completion certificates

Various

Various

A19

Bundle of country information documents

Various

25 January 2024

A20

Tax invoice from Redlands Psychologist

29 February 2024

1 March 2024

[2024] AATA 739

15 April 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Dates of hearing:	6 and 7 March 2024
Applicant:	Self-represented litigant
Solicitor for the Respondent:	Mr West (Associate)
Sparke Helmore Lawyers

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
RESPONDENT SUBMISSIONS
R1	Remittal bundle	Various	8 January 2024
R2	Statement of Facts, Issues and Contentions	8 February 2024	8 February 2024
APPLICANT SUBMISSIONS
A1	Applicant’s personal statement	Undated	24 January 2024
A2	Report from Dr Jacqui Yoxall	23 February 2024	23 February 2024
A3	Evidence bundle	Various	24 January 2024
A4	Further evidence bundle	Various	25 January 2024
A5	Submission on impact of domestic violence and maltreatment	Various	25 January 2024
A6	Statutory declaration by Ms Siobhan Correia	Undated	24 January 2024
A7	Handwritten statement by Ms Siobhan Correia	14 February 2024	16 February 2024
A8	Letter of support from Ms Lorna Reddy	13 February 2024	13 February 2024
A9	Letter of support from Ms Yvonne Govender	12 February 2024	13 February 2024
A10	Letter of support from Ms Nancy Chetty	9 February 2024	12 February 2024
A11	Letter of support from Mr Pera Wihongi-Lim	11 February 2024	12 February 2024
A12	Letter from Siobhan’s case manager at Salvation Army	10 January 2024	24 January 2024
A13	Letter of support from Ms Sylvia Budulica	19 May 2023	25 January 2024
A14	Letter of support from Mr Damien Pillay	14 February 2024	15 February 2024
A15	AAT decision in Mr Damien Pillay’s case ([2022] AATA 270)	21 February 2022	16 February 2024
A16	Support letters from children	Various	16 February 2024
A17	Child N’s name meaning	Undated	25 January 2024
A18	Bundle of course completion certificates	Various	Various
A19	Bundle of country information documents	Various	25 January 2024
A20	Tax invoice from Redlands Psychologist	29 February 2024	1 March 2024