PLQF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 2982

PLQF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2982 (18 September 2023)
Division: GENERAL DIVISION
File Number: 2023/4536
Re:PLQF
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:18 September 2023
Place:Sydney

The reviewable decision is set aside and in substitution it is decided that there is another reason why the mandatory cancellation decision should be revoked.
.................................[sgd].......................................
Mrs J C Kelly, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation of visa under s 501CA(4) because applicant did not pass the character test – whether there is another reason why the cancellation decision should be revoked – Ministerial direction no.99 – protection of the Australian community – family violence – strength, nature, duration of ties to Australia – best interests of minor children in Australia – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed – impact on victims – reviewable decision set aside
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Jacobs and Minister for Immigration and Border Protection (Migration) [2020] AATA 1524
MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35
Pearson v Minister for Home Affairs [2022] FCAFC 203
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
SECONDARY MATERIALS
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’
World Affairs, Winter 2020 (October-December) Vol. 24 No. 4
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
18 September 2023
Introduction

PLQF, the Applicant, was born in Bhutan in January 1984. On 3 July 2012, aged 28, he arrived in Australia from a refugee camp in Nepal holding a Refugee (Class XB) (Subclass 200) visa (the visa) which was mandatorily cancelled on 8 September 2022 because of the sentence of imprisonment imposed for his criminal offending committed on 4 December 2020 (the 2020 offences). He applied unsuccessfully to have the cancellation decision revoked. He seeks to have that non-revocation decision made on 26 June 2023 set aside by the Tribunal.
The issue to decided
Both parties accept that the Applicant does not pass the character test (defined in section 501(6) of the Migration Act 1958 (Cth) (the Act)) because he was sentenced to an aggregate term of imprisonment of three years and nine months. Therefore, the issue to be decided is whether there is another reason why the cancellation decision should be revoked under section 501CA(4) of the Act, having regard to the considerations prescribed by ‘Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (Direction 99).
Direction 99
Paragraph 5.2 of Direction 99 sets out six principles (the Principles) that provide the framework within which decision-makers should approach the task of deciding whether to revoke the mandatory cancellation of a visa under section 501CA(4) of the Act. Informed by the Principles, the decision-maker must take into account the primary and other considerations in Part 2 of Direction 99 in deciding whether to revoke the mandatory cancellation of a visa.
Direction 99 requires that information and evidence from independent and authoritative sources should be given appropriate weight, and primary considerations should generally be given greater weight, although ‘other considerations’ should not necessarily be treated as secondary in all cases.[1]
[1] Paragraph 7(1)-(2) of Direction 99; Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, [23]-[32].
I will consider in turn each of the considerations that is relevant in this case after setting out a summary of the evidence that provides the context for his offending. The impact on business is not relevant in this case.
Background
The Applicant was forced to flee from Bhutan to Nepal with his parents and his older sister when he was six years old as part of a mass exodus of Lhotshampa, Bhutanese of Nepali origin. At that time, the Bhutanese government implemented a ‘one nation, one people’ policy by denying/preventing the people of Nepali descent from exercising their cultural and linguistic rights. The government used armed forces to expel the Lhotshampa from the country.
Life within the refugee camp was traumatic and the Applicant was regularly exposed to violence, disease and malnourishment. He claims that he has been stateless since then. In 2006, the Applicant married his wife (AB) who was also a stateless refugee living in the refugee camp. She gave birth to their son in January 2009. The Applicant was a labourer in the camp.
The Applicant claimed that he first consumed alcohol when he was 16, living in the refugee camp. He developed a pattern of drinking alcohol daily, which continued when he relocated to Australia when he was drinking one to two bottles of wine daily. He had been consuming alcohol on the day he committed the 2020 offences.
After arriving in Australia, the Applicant and his family resided in a regional area. He found the adjustment difficult, having left his parents and four siblings in the refugee camp but found work. His family has moved to the United States except for his sister and her son who he sponsored to come to Australia in 2017.
His daughter was born in 2014. From 2015 to 2016 he was cutting sheet metal at an engineering company (the company) which employed him again full-time while he was in the community in January and February 2023 and has offered to re-employ him if he returns to the community. From 2017 to 4 December 2020, he was working sporadically.
The Applicant is the primary source of evidence about his mental health and treatment. He claims that he was first prescribed medication for his mental health symptoms in 2017. He has been treated at a city hospital and by two regional health services.
There is one letter dated 19 June 2020 from a drug and alcohol counsellor in the material summonsed from the local court where the Applicant appeared on 30 June 2020. It states that the Applicant self-referred to the service and had voluntarily participated in alcohol and other drug counselling on six occasions from 8 May 2020 to 19 June 2020.
The Applicant ceased taking his medication in or around June 2020 when he felt that his symptoms were subsiding. He described his paranoid episodes as ‘coming and going’, and re-emerging in the week before he committed the 2020 offences.
The Applicant has been diagnosed with Post Traumatic Stress Disorder (PTSD), schizophrenia and alcohol use disorder by Dr Richard Furst, forensic psychiatrist, who assessed the Applicant in 2021, 2022 and 2023, and wrote reports. Dr Furst also gave oral evidence at the hearing.
The Applicant was in police custody or on remand from 4 December 2020 until he was sentenced to imprisonment on 16 August 2022. He was released from prison on 3 December 2022 and taken into immigration detention. This case is Pearson affected[2]. Therefore, he was released into the community on 27 December 2022 and returned to immigration detention on 3 March 2023, where he remains.
Primary considerations
[2] Pearson v Minister for Home Affairs [2022] FCAFC 203.
Protection of the Australian community
There are two considerations in relation to the protection of the Australian community:
(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.
The nature and seriousness of the non-citizen’s conduct to date
The Applicant’s criminal offending began on 29 January 2017. The Applicant objected to police records of incidents being taken into evidence that did not result in an offence being recorded. The information is relevant because it demonstrates the Applicant’s consumption of alcohol and the consequential arguments that arose between him and his wife. I am unable to make findings as to exactly what happened where there is conflicting evidence from the Applicant and AB.
On 26 October 2012, three months after the Applicant, AB and their son arrived in Australia, the police recorded a ‘domestic violence episode’. The Applicant had been drinking alcohol. The police had difficulty finding out what had happened because of language difficulties and conveyed AB and the son to her sister’s residence to ensure arguments ceased.
On 6 June 2015 police observed the Applicant to be intoxicated at a licensed premise and told him to leave. The Applicant argued, defied a number of police directions, was arrested, refused to supply details requested, and was held in custody until the following morning.
On 14 March 2017 he was sentenced to community corrections order (CCO) for 12 months without conviction for three offences committed on 29 January 2017: unlawful assault, intentionally damage property and possess dangerous article in public place. The Applicant assaulted AB with a meat cleaver and was found to be in possession of a tomahawk. He also damaged her motor vehicle. That was an incident of family violence. The conditions on the CCO were community work, ‘Treatment & Rehab’ alcohol and mental health, supervision and offending behaviour programs. He engaged with a mental health service after this incident which he told the Tribunal he did not really remember.
On 14 May 2018, the police recorded the following account provided by AB. The Applicant was an alcoholic and had mental health issues and apparently skips or does not take his medication. When he does not drink, he is fine, but when he does, he becomes argumentative and threatening. They had had numerous arguments about his drinking. During those arguments he had threatened to stab her. On Saturday night 12 May 2018, the Applicant went out drinking at 12pm and returned home about 7pm intoxicated. AB refused to let him into the house. He became angry, started to bang on the door, yelling abuse at the victim wanting her to let him in. He broke some pot plants. AB left to go to her parents next door and gave him the house key. He followed her and banged on the door there for some time. AB expressed fears that when he drinks, he will kill her. An Apprehended Violence Order (AVO) had been applied for and the Applicant would be arrested and served when it was approved.
The Applicant had no recollection of this incident. AB said that the Applicant did come home intoxicated and she refused to let him in and he banged on the door but she should have allowed him inside because it was cold. If he comes home drunk, he would not be aggressive. If she is argumentative, he is too. She apologised. She went to police to change her statement but they would not agree. She said she went to the police every time for minor matters which was wrong. It should have been handled between her and the Applicant.
The Applicant’s position was that the only finding that could be made is that the Applicant was intoxicated, was locked out and banged on the door.
A police record was made on 25 May 2019 about the events on 24 May 2019. There had been previous ADVOs but there was none at this time. AB had said that the Applicant was regularly intoxicated and is jealous that her family is nearby and that he does not have family in Australia. About 8pm on Friday 24 May 2019, the Applicant, AB and two children were at home. The Applicant had been drinking. An argument broke out and she took their daughter and had gone to her family’s house where she contacted police. Police attended at 12:56am on 25 May 2019. AB stated that the Applicant had been drinking and they argued when he accused her of having a relationship with her sister’s husband. She said that there was no violence and she did not feel threatened. She did not want to be around him anymore and wanted to leave him. She wanted to retrieve their son and some personal possessions so she could stay with her family. Police escorted her to her home and spoke to the Applicant who did not appear to be intoxicated and agreed to hand over their son and AB’s belongings. When the police asked the Applicant what the argument was about, he stated that AB had removed their daughter without a reason and was laughing at him. The note recorded ‘no mental health & other health issues’.
On 27 May 2019 AB made a further statement to police about events of 24 May 2019. She described the relationship as abusive. He has always yelled at her, was very controlling and becomes verbally abusive when he consumes too much alcohol. No-one listened to her in Nepal. At 8pm on 24 May 2019 she and the Applicant finished work and drove home. He remained there consuming alcohol while she collected the children from childcare. She then prepared dinner and asked the Applicant if he wanted to eat. He began yelling at her and said he did not want to eat but after five minutes did eat. Half an hour later, he yelled at her again when she invited him to have some fruit, and said ‘You can eat anything you like for five days and then you will be finished’. He did not respond when she asked what he meant. She said that she is going outside and went into a bedroom where she put her hand under her daughter’s head to lift her. The Applicant came in, raised his fist towards her head stating angrily ‘Don’t try and take my daughter. If you take her I will kill you’. He took AB’s key and phone. She felt scared, left the house, and went to a friend’s house where she contacted police. She stayed with her brother from 24 to 27 May because she was frightened to return home. She no longer wishes to reside with the accused as she fears for her and the children’s safety. She believes that the threat that she’ll be finished means that she will be dead. She said that he has a mental health illness and alcohol makes him angry and abusive. He had previously mentioned that when ‘you’ becomes an Australia citizen he will spray acid in her face. The accused was arrested later that day and interviewed. He denied threatening AB and made counter allegations.
Because AB had initially signed a statement saying that nothing had happened on that night and the Applicant’s conflicting version, there was insufficient evidence to charge him.
During her oral evidence, AB said that she was also very angry, and he may have threatened to kill her out of stress or anger. She also said that she was ‘mental’ at that time and could not figure out things clearly. She did not know whether he said it or not. That is why she changed her statement. She was going to the police all the time. She now realises it was wrong.
The Applicant did not recall this event. He did not recall very much. He did not have a clear memory from 2019 and 2020.
On 27 May 2019 police were granted a provisional AVO that required the Applicant not to assault or threaten AB and not approach her or be in her company twelve hours after consuming alcohol.
The Applicant conceded that the 24 May argument was family violence which involved an argument between the Applicant and AB during which he raised his fist and said ‘don’t try and take my daughter or I will kill you’. No violence was involved.
An AVO was made on 11 June 2019. During his oral evidence, the Applicant said that he had a blurry kind of memory of a piece of paper. At that time, he did not know whether it was a dream or true.
On 28 October 2019, AB reported incidents on 13, 25 and 26 October 2019 to the police. The Applicant was charged with five offences in relation to the 13 October incident and two in relation to the 26 October 2019 incident.
AB claimed that on 13 October 2019 she, the Applicant and the children went to her brother’s house. The Applicant left shortly after arriving to walk home, telling AB to stay as long as she wished. Shortly after he left, she began receiving telephone calls demanding she pick him up. Around 8pm she went to pick him up and drove to their home. The Applicant pulled the vehicle’s keys from the ignition and snatched her telephone, smashing it on the ground before grabbing her and dragging her violently into the house and into the bathroom where he tore off her clothes, leaving her naked. He grabbed a large traditional Nepalese knife and held it against her skin, stating in Nepalese “Scream and I will kill you’. He detained her there for an hour, repeating threats to kill her, and remaining in possession of the knife. He left the bathroom on multiple occasions to fill a water bottle which he drank from. He called AB’s mother, who was minding the children at the brother’s house, on his mobile phone, telling AB that he would kill her if she screamed so her mother could hear her. At some time, he threw a blanket at AB so she could cover herself. During the entire incident AB believed that the Applicant was thinking of how he would kill her. He punched her in the right eye using a clenched fist, resulting in a large bruise which took several days to subside. After an hour and having consumed bottles of water, the Applicant calmed himself and allowed AB to dress and leave the bathroom. She suffered a persistent strain to her left shoulder area which caused discomfort for several weeks. She took several images of her black eye using a mobile phone but the Applicant found and deleted them.
AB claimed that about 2am on 25 October 2019, the Applicant woke her up yelling at her, making a number of accusations including that she was having an affair. AB believed he had been consuming alcohol. After some time, both went back to sleep.
On 26 October 2019, AB went to assist her sister-in-law to cook food for her nephew’s birthday party, leaving the children in the Applicant’s care. She returned home with her sister-in-law about 1:30pm. Her son informed her that the Applicant had been drinking in the park and had fallen asleep and was unable to be roused. The accused reappeared, unsteady on his feet, slurring his words and acting in an aggressive manner. He again accused her of having an affair. He took a large kitchen knife and threatened to stab her. AB fled and the sister-in-law locked the children in her car. She collected the Applicant and took the three of them to her residence.
During her oral evidence, AB said that she did report the 13 October 2019 incident but she did not see a knife, he did not tear her clothes off, did not threaten to kill her or punch her in the eye. Her mental health also was not stable at that time. She was going to work at 1am. They had bought a house and were under stress. She has realised that family is more important than a house or other things. She denied that the incident on 25 October 2019 happened. She acknowledged giving the statement about the 26 October 2019 incident but said that the Applicant was angry with her because she went by herself and she should have asked him if he wanted to go.
During his oral evidence, the Applicant gave the following evidence. He recalled an incident when they went to his in-laws’ house. He did not want to stay. He felt stressed and wanted to go home. He walked halfway in the dark and rang AB who dropped him off at home. She wanted to return to the in-laws to play cards on a weekday. They had a conversation for some time. He was watching television. He does not know what happened after that. He did not recall an incident in the bathroom. He did not punch her.
He did not recall the incident on 25 October 2019 and did not recall a knife in relation to the incident on 26 October 2019.
Corrective Services records show that the Applicant was taken into custody at a local court on 28 October 2019, taken to a corrective services facility on 30 October 2019 and released on bail on 9 January 2020.

While in a holding cell on the afternoon of 30 October 2019, the Applicant was found lying on the cell floor and appeared to have an item of clothing tied around his neck with blood coming from his nose. He was non responsive to staff. An ambulance was called and he was moved to ‘medical’. He was fully conscious and responsive when the ambulance arrived. He was taken to hospital. On return to the facility, he was to be placed on ‘Continuous HRAT (Health Risk Assessment Team) watch’ and housed in a camera monitored safe cell.
On 31 October 2019, the Applicant was interviewed at the correction facility by a mental health nurse. He was clear and coherent and oriented to time, place and person. He acknowledged that he had attempted suicide, in response to a thought that had ‘suddenly appeared in his mind’. He denied that he had ever experienced such thoughts in the past and denied any ongoing thoughts of self-harm, suicide or harm to others. He did acknowledge a history of depression and anxiety for which he self-medicated via excessive alcohol use.
On 9 January 2020 three AVO applications were before the local court. The Applicant and AB were present. She became emotional and left the court room. She told police that she had lied. The Applicant had not had a knife in the 13 October 2019 incident. She called police because she thought they would take him out of the house to his sister’s. She also lied about the 26 October incident. He never held a knife. He was at the kitchen drawer and she thought he was getting a knife. On 10 January 2020 AB’s case worker told police that AB had contacted her and said that the statement was true. She lied so the Applicant could get out of gaol.
During the hearing, the Applicant denied asking his wife to withdraw the charges. AB said that the Applicant then lived with his sister for about six or seven months and then returned to live with her and the children.
On 3 June 2020 a final AVO for two years was made at the local court with respect to AB that included conditions that the Applicant would not assault or threaten, stalk, harass or intimidate and not approach or be in her company for at least 12 hours after drinking alcohol or taking illicit drugs.
The charges in respect of both October 2019 incidents were finalised in the local court on 30 June 2020.
The Applicant pleaded guilty to, and was convicted of, contravene prohibition/restriction in AVO (Domestic) with no other penalty. This related to the incident on 26 October 2019. The breach was being intoxicated in AB’s presence. The Applicant admitted to police that he was intoxicated.
Six other charges were marked ‘withdrawn’. One armed with intent to commit indictable offence-T1 related to the 26 October 2019 incident and the other five to the 13 October 2019 incident. Those offences were armed with intent commit indictable offence, contravene prohibition/restriction in AVO (Domestic), destroy or damage property <=$2000-T2, assault occasioning actual bodily harm-T2 and take/detain person with intent to obtain advantage cause actual bodily harm (DV)-S1.
On 1 December 2020 the Applicant was charged with contravene AVO (domestic). The Applicant told the Tribunal that he recalled he was drinking wine in AB’s presence.
On 4 December 2020 the Applicant committed the offences resulting in these proceedings.
On 6 July 2021, the Applicant was convicted in the local court of contravene prohibition/restriction in AVO (Domestic) for the protection of AB by consuming alcohol in her company. He was sentenced to a CCO for two years commencing 6 July 2021 concluding 5 July 2023. This was the charge laid on 1 December 2020.
On 16 August 2022 the 2020 offences came before a District Court judge who convicted the Applicant of: stalk/intimidate intend fear physical etc harm (domestic), assault occasioning actual bodily harm and wound person with intent to cause grievous bodily harm. They are his most serious offences. The Applicant was sentenced to an aggregate term of imprisonment of three years and nine months beginning 4 December 2020 and expiring 3 December 2024, with a non parole period of two years expiring on 3 December 2022. He was given a 25% reduction for pleading guilty. On the same day, he was convicted, without any other penalty, of contravene prohibition/restriction in AVO (Domestic).
There had been an AVO in place at the time of the offending. Another was put in place for the protection of AB until 29 June 2027. A condition that he not approach her within 12 hours of drinking alcohol continues in force.
The 2020 convictions arose from the following facts. While subject to an AVO, on 4 December 2020 the applicant was consuming alcohol and was verbally abusive towards AB, demanding money from her, while their two children were present, and threatened to kill her, causing the three of them to flee from their residence. Two neighbours, a male and a female, went outside to investigate when they heard screaming and saw AB who appeared distressed and said ‘he’s gunna kill us’, ‘he gunna kill us, call the police”. They gave AB and children refuge in their apartment. The Applicant grabbed the female with both hands, pushed her, causing her to fall. He went back to his residence and returned with a meat cleaver and struck the male with the meat cleaver five or six times, causing significant lacerations and a small chip to a bone. The male and female struggled with the Applicant and were able to force him from the unit and then with the assistance of a bystander held the Applicant on the ground. While on the ground, the Applicant said ‘I’ll kill you’ to the bystanders.
The sentencing judge’s remarks included the following. The ‘wound with intent to cause grievous bodily harm’ and the ‘assault occasioning actual bodily harm’ fell below the ‘mid-range of objective seriousness’. The stalk/intimidate intend fear physical etc harm (domestic) was of such seriousness a short, fixed term of imprisonment should be imposed. The indicative sentence was three years with a two year non parole period. The Applicant’s mental illness contributed to the commission of the offences in a ‘material way’, he had demonstrated ‘insight to his mental illness’ and ‘genuine contrition and remorse’; his significantly deprived background attenuated his moral culpability for the offending; and his record was ‘minor’ which entitled him to leniency.
An AVO is currently in force to protect AB. It was served on 31 May 2023 and expires on 29 June 2027. It includes the usual conditions and a condition that he must not approach or be in her company for at least 12 hours after drinking alcohol or taking illicit drugs. Prior to 31 May 2023, the AVO had included a condition precluding him from residing with AB. That condition was removed upon AB’s application.
During her oral evidence, AB denied asking the neighbours for help on 4 December 2020. She said ‘he opened the door’ and she was not in fear of her husband on that occasion. She denied that she was not telling the truth.
The Applicant’s offending is very serious. He has multiple convictions for violent offending, including instances of family violence and violence against women. The 2020 offences could have resulted in death of the victim. The seriousness of his offending has escalated over time.
The Applicant has breached an AVO three times.
There is a clear and consistent link between the Applicant’s substance abuse and his offending behaviour from 2017 to 2020. The Applicant accepted that that does not excuse or mitigate the seriousness of his offences, however it reflects that there is not an ingrained level of criminality and reflects his state of mind at the time of the offences.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
If the Applicant reoffends, individuals may suffer serious physical or psychological injury and possibly death.
The extent of the Applicant’s involvement with regional mental health services from 2017 to 2020 is unclear. His diagnosis in 2017 seems to follow from his offending on 29 January 2017 and is reflected in the terms of the CCO imposed. His involvement in June 2020 seems to have been in preparation for the appearance in court on 30 June 2020. To what extent he followed a medication regime is not apparent. He showed no insight into his mental health or substance abuse during that period.
The Applicant did not incur any misconduct offences while in custody for his offending. He engaged in a number of rudimentary work programs to better himself. He was employed in light engineering for which he received ‘excellent reports regarding his worth ethic and attitude’. He learned to weld. He consistently took his prescribed medications.
His parole continues until 3 September 2024 with conditions to participate in rehabilitation programs and abstain from alcohol and submit to alcohol testing. He will be subject to parole if he is successful in this case and his visa is restored. If he breaches parole he may be returned to custody. An AVO in respect of AB is in force until 2027.
The Applicant returned to his hometown and lived with his wife’s parents during January and February 2023. He was subject to the conditions of his parole. He abstained from alcohol, sought assistance for alcohol counselling, complied with his medication regime, and engaged with mental health support services.
Whilst in immigration detention, the Applicant has participated in several programs addressing domestic violence, anger management, drug and alcohol abuse, a relapse prevention program through Odyssey House, AA meetings and SMART recovery programs. He is taking his medications.
He has taken steps towards rehabilitation and has been briefly tested in the community. He has been abstinent from alcohol since 4 December 2020. He has shown insight into his offending. He said that his great mistake was stopping taking his medication in 2020 because he felt well. He will not stop taking his medication again without consulting his GP or psychiatrist. He had made bad choices and destroyed his family and his life. During the past 33 months he has realised that alcohol is his ‘best’ enemy. He has learned techniques to help distract him from bad thoughts and knows to contact support services if he has a relapse. He promised he would never drink alcohol again. He has been in contact with his family every day since he returned to detention. They have visited him twice in that period. He wants to improve his relations with his wife and children and wants to live with them if he returns to the community and return to work for the company where he worked from 2015 to 2017 and while he was in the community recently.
I give considerable weight to the support AB will give the Applicant. She has had about two and a half years to reflect on the past events in the absence of the Applicant. She now has a greater insight into his mental health and the support that is available. Whatever happened in the incidents set out earlier in this decision which did not result in convictions, she has decided to support her husband’s application with the hope of a better future for the family. She has seen a genuine change in the Applicant’s attitude and behaviour. She will modify her own behaviour. The Applicant’s time in the community in January and February 2023 was a better time for the family. She applied for the removal of the AVO condition preventing him from living with her. She is very concerned about her children. They will all be better off financially if the Applicant is in the community. Her parents were supportive, allowing the Applicant to live with them in January and February.
In Dr Furst’s opinion, the Applicant has a low to moderate risk of offending. He considered that the Applicant’s threatening conduct towards his wife and subsequent attack on the neighbours who were protecting her, was likely to have been triggered, in part, by his irrational thinking, including as a consequence of paranoid delusions and hallucinations. Alcohol also contributed to his aggressive conduct. Consuming alcohol appears to have been a maladaptive means of coping with persistent symptoms of PTSD and psychosis, mitigating against the seriousness of his actions and reducing his moral culpability.
One of Dr Furst’s recommendations was that the Applicant engage in couples counselling/marital therapy. The evidence did not suggest that the Applicant had any specific plans to do so which is very concerning given that his relationship with his wife has been the trigger for each of his criminal offences.
The consideration protection of the Australian community weighs against revocation.
Family violence committed by the non-citizen
The Applicant accepted that the consideration family violence weighs against revocation. The family violence is the unlawful assault in 2017, the 24 May 2019 incident, three breaches of AVOs, and the stalk and intimidate offence in 2020. The Applicant conceded that there was an ‘overlay’ of family violence in relation to the offences committed against the neighbours. The Applicant has accepted responsibility for his offending. I am not persuaded that he understands the impact on AB. However, he has taken steps to address his mental health and alcohol use which are causative factors in his offending. Dr Furst has assessed him to have a low to moderate risk of reoffending.
The strength, nature and duration of ties to Australia
The Applicant arrived in Australia with AB and their son in 2012, aged 28. He began offending in 2017. AB and children are Australian citizens. His relationship with AB has been adversely affected by his drinking and mental health issues, however she strongly supports his remaining in Australia for financial reasons and for the sake of the children who miss him and need him. She has maintained the view over the years that the Applicant is good when he has not been drinking. That is shown by the COPS records and her evidence. She is hoping for better times if the Applicant continues to work and not to drink and takes his medication, as he did when he was in the community in January and February. During that time their communication improved. The family went camping two or three times which was very special for the children. She now understands his mental health issues better and knows who to contact to get medical support for him and how to be more helpful to him. She wore a T-shirt at the hearing bearing the words: ‘I love my husband’.
She has always worked very long and odd hours as a cleaner to support her family but the last two years and nine months have been very hard for her. They lost the house they had bought and a car because she could not afford to keep them. She struggles financially. She has been looking after the children, her home and working with some support from her family but it has been very tough. The Bhutanese community leader corroborates that evidence. Her family’s support may not be as readily available in the future as it has been in the past. She needs the Applicant’s help.
She and the children would be very adversely impacted if the Applicant were removed from Australia or remained in immigration detention.
The Applicant provided letters of support from three people who knew him and his family through the Bhutanese Resettlement Program in Australia and one from the President of a local Bhutanese Australian support group. The latter wrote that the Applicant was active in that community in the past and mentioned recent letters sent by the Applicant and AB about their situation. The four people had all known the Applicant and his family since their arrival in 2012.
AB’s parents, who are in their sixties, three brothers and one sister live in the same regional city as the Applicant and his family. There is no evidence from them. AB’s parents allowed him to stay with them in January and February 2023.
The Applicant’s sister and her son reside in the same regional area as the Applicant and his family but there is no evidence from them.
The Applicant has contributed positively to the Australian community through his previous activities with the Bhutanese community organisation, assisting a Bhutanese family to settle in Australia, and leading a group of refugees flying from Nepal to Australia, and his work. He has shown a good work ethic, particularly during 2015 and 2016 when he worked for the company. His employment during the years 2017 to 2020 was sporadic.
This consideration weighs in favour of revocation but the weight to be attributed is tempered by the Applicant’s low to moderate risk of reoffending which would impact adversely on AB and the children.
Best interests of minor children in Australia affected by the decision
The Applicant’s son is 14 and his daughter is eight years old. They both wrote letters in support of their father and wore T-shirts at the hearing with the message: ‘I love my father’.
AB has stopped the children’s sport because she is unable to drive them long distances because she does not have the time. Her daughter stopped going to dancing and swimming when the Applicant went to prison because it was during the week and AB did not have the time to take her. She wants to go swimming.
AB’s parents used to pick up the children from school. They have been overseas for an extended period and will be moving further away but within the same city. Her parents and siblings do not help all the time. She is unable to assist the children with their homework as much as the Applicant did because he is more educated than she is.
AB said that their son keeps saying that he is looking after his sister and he will have his time when the Applicant comes back. I understand this remark to refer to him having to mind her when AB is working. He is not open with his mother.
AB is particularly worried about their daughter who sees the Applicant in her dreams and gets pains/cramps in her stomach. A letter from her school substantiates the difficulties the daughter has as a consequence of her father being absent. She misses him deeply and worries about him. She often visits sick bay because of the cramps which are attributed to her worry about her father. She often needs to go home because of the cramps. Her ability to maintain friendships and progress academically have been adversely impacted. This impact seems to have occurred following the Applicant’s time in the community and return to immigration detention.
This consideration weighs in favour of revocation but the weight to be attributed to it is tempered by the Applicant’s offending in their presence and by the risk of his moderate to low risk of reoffending which if realised would adversely affect each of the children and by the fact that they were present during the 4 December 2020 offending.
Expectations of the Australian community
The Applicant did not dispute that he has engaged in serious conduct in breach of the Australian community’s expectation that non-citizens obey Australian laws while in Australia and that the Australian community, as a norm, expects the Government to not allow him to remain in Australia.[3]
[3] Paragraph 8.5(1) of Direction 99.
It is not for a decision-maker to make an assessment of the community’s expectations.[4] The decision-maker determines the appropriate weight to be given to this consideration.[5]
[4] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [66]-[67] (Charlesworth J) and at [104] (Stewart J) and Direction 99, paragraph 8.5(4).
[5] Jacobs and Minister for Immigration and Border Protection (Migration) [2020] AATA 1524 at [72].
The nature of his offending is such that the Australian community would expect that his visa be cancelled. He has committed acts of family violence and a serious crime against a woman.[6]
[6] Direction 99, paragraph 8.5(2)(a) and (c).
The above expectations apply regardless of whether the Applicant poses a measurable risk of causing physical harm to the Australian community.[7]
[7] Direction 99, paragraph 8.5(2).

The expectations of the Australian community weigh against revocation of the reviewable decision.
Other considerations
Legal consequences of the decision
The parties agreed that the Applicant cannot return to either Bhutan or Nepal.
The Applicant is not covered by a protection finding and could apply for a protection visa. His protection claim is based on his Lhotshampa ethnicity with reference to Bhutan. A country report ‘Ethnic Issues of the Lhotshampas in Bhutan’ was in evidence.[8] There has been a process of the Bhutanisation of the Lhotshampas since 1958 leading to the mass exodus in the early 1990s. Currently, the Applicant would need to obtain a visa to return.
[8] World Affairs, Winter 2020 (October-December) Vol. 24 No. 4.
The Initial Assessment dated 4 October 2011 is not an assessment of non-refoulement obligations and is not based on current country information.
The Applicant said that some people are still in prison and they will persecute or kill him.
There has been insufficient attention to the claims, evidence and the necessary assessment for a determination to be made.
I defer consideration of whether the Applicant is owed non-refoulement obligations for assessment as required by section 36A of the Act, if and when he applies for a protection visa.
The Applicant argued that it is unlikely that the Applicant would be granted a protection visa because of character concerns and the application of section 501(1) of Act. The Respondent contended that that outcome was not a foregone conclusion taking into account the process that occurs before that section is considered. The Respondent accepted that in the event of refusal, the Applicant would be detained for a prolonged period until he could be removed to another country or the Minister exercised his non-compellable power.
That the Applicant is unlikely to be granted a protection visa in circumstances where the Minister has cancelled his visa and opposed the revocation of that cancellation on character grounds is supported by the observations of Kenny and Mortimer JJ in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [124] and of Wigney J in MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35 at [55].
It is likely that the Applicant will be in indefinite detention where there is no fixed chronological end point and no way of ascertaining when he might regain his freedom.[9]
[9] Kenny and Mortimer JJ in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [123].
In Dr Furst’s opinion, the Applicant is likely to become depressed, anxious, stressed and demoralised in prolonged detention and more so with indefinite detention. There is also an increased risk of him relapsing in psychosis because of his longer-term impact of such stress, anxiety, and demoralisation. He has tried to commit suicide once while in custody in 2019. The research referred to by the Applicant reinforces that conclusion.
This consideration weighs in favour of revocation.
Extent of impediments if removed
It is unlikely at the present time, but if the Applicant were removed, it is not clear to which country he would be removed. He would face significant impediments being away from his family and because of his mental health. While favouring revocation, I give this consideration little weight because it unlikely that he will be removed.
Impact on victims
The parties agreed that this was a neutral consideration.
Conclusion
The considerations weighing in favour of revocation of the mandatory cancellation decision are the strength, nature, duration and ties to Australia, best interests of minor children in Australia affected by the decision, the legal consequences of the decision and impediments if removed. On balance, they outweigh the considerations that weigh against revocation which are the protection of the Australian community, family violence committed by the Applicant, and the expectations of the Australian community.
DECISION
The reviewable decision is set aside and in substitution it is decided that there is another reason why the mandatory cancellation decision should be revoked.

I certify that the preceding 105 (one hundred and five) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

.................................[sgd].......................................
Associate
Dated: 18 September 2023

Dates of hearing:

5-6 September 2023

Counsel for the Applicant:

Mr D Bhutani

Solicitors for the Applicant:

Ms F Cruz Montalvo, Legal Aid NSW

Solicitors for the Respondent:

Mr M Sheedy and Mr M Burnham, Sparke Helmore Lawyers

Dates of hearing:	5-6 September 2023
Counsel for the Applicant:	Mr D Bhutani
Solicitors for the Applicant:	Ms F Cruz Montalvo, Legal Aid NSW
Solicitors for the Respondent:	Mr M Sheedy and Mr M Burnham, Sparke Helmore Lawyers