Prasad and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 3438

Prasad and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3438 (9 October 2023)
Division:GENERAL DIVISION
File Number: 2023/5316
Re:Ashley Nand Prasad
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Rebecca Bellamy
Date of Decision: 9 October 2023
Date of Written reasons: 25 October 2023
Place:Brisbane

The decision under review is affirmed.
..................................[SGD]......................................
Senior Member R Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Permanent Resident Class AY Subclass 104 Preferential Family 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 – criminal history includes multiple violent offences including family violence – multiple driving offences – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 559.
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
FYBR v Minister for Home Affairs [2019] FCAFC 185
Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Uelese v Minister for Immigration and Border Protection [2015] HCA 15 (6 May 2015)
SECONDARY MATERIAL
Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member R Bellamy
25 October 2023

The Applicant is a 52 year old citizen of Fiji who permanently relocated to Australia on a Permanent Resident Class AY Subclass 104 Preferential Family visa (“visa”) in 1997 when he was 26 years old. His visa was recently cancelled due to his criminal offending, and he has asked the Tribunal to revoke that cancellation.
Section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) relevantly provides that the Minister must cancel a visa that has been granted to a person if:
·the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a), on the basis of paragraph (7)(a), (b) or (c); and
·the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Under s 501(6)(a) of the Act, a person will not pass the character test if they have “a substantial criminal record”. Section 501(7)(c) of the Act relevantly provides that a person has a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”. In August 2022, the Applicant was sentenced to three years imprisonment.
On 20 October 2022, while the Applicant was serving that sentence, a delegate of the Minister (“the Respondent”) mandatorily cancelled his visa because he did not pass the character test and he was serving a full time custodial sentence.
The Applicant subsequently made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”). Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act which provides:
The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
On 17 July 2023 the Respondent decided not to revoke the cancellation. On 21 July 2023 the Applicant lodged an application in this Tribunal for review of that decision. The Tribunal has jurisdiction to review the decision pursuant to s 500(1)(ba) of the Act.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act and that he does not pass the character test. Thus, the sole issue is whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa. If there is, I should set aside the original decision.[1]
[1] Minister for Home Affairs v Buadromo [2018] FCAFC 151.
The hearing of this application took place on 28 and 29 September 2023. The Applicant gave evidence in person. His mother and sister gave evidence by video link. His uncle, aunt and a friend gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
Determination of Whether There is Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In applying s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) applies.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several guiding principles. Those principles, as far as they relate to this matter, may be summarised as follows:
·Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
·Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
·The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
·Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
·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) 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account. They are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)family violence;
(3)strength, nature and duration of ties to Australia;
(4)best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. They are:
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on victims; and
d)impact on Australian business interests
It is common ground between the parties that Primary Consideration 4 and Other Considerations (c) and (d) are not relevant. I may allocate weight to other matters not covered by the mandatory considerations that are relevant to whether there is another reason to revoke the cancellation of the Applicant’s visa.
Paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations, and paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.
BACKGROUND AND OFFENDING
The Applicant was born in January 1971 in Fiji. It appears that he had an older brother who died in childhood and possibly another brother who died as a baby. He first came to Australia in January 1986 where he completed years 10 and 11 at boarding school. His parents (in Fiji) were wealthy. They paid his school fees and gave him an allowance.[2] In 1988, he graduated with a Certificate of Automotive Engineering from the Avondale College. He then returned to Fiji where he worked at a garage and a bakery.[3]
[2] Transcript, page 126, lines 12 to 24.
[3] Exhibit G1: G35, page 411.
In 1990, the Applicant attended Pacific Adventist College in Port Moresby, Papua New Guinea where he completed a year towards a Bachelor of Arts degree in Theology and English literature. He started using cannabis at age 19. He used cannabis over the next 30 years, although he never felt addicted, he could stop at will and sometimes went for periods without it. He occasionally consumed alcohol to the point of intoxication, although he stopped around the age of 43 when he started using methamphetamine.[4]
[4] Exhibit G1: G27, page 256.
In early 1991, the Applicant and his parents migrated to the United States, and he stayed there for six years. He worked in market research in Seattle and San Francisco.
In 1997 he migrated to Australia to reunite with his family (parents and sister) who were already here. He ceased cannabis use for around twelve months, in part because he had few friends.[5] He attributed his drug use to meeting people who used drugs.[6] Presumably this explains his drug use overseas and his resumption of drug use in Australia.
[5] Ibid.
[6] Transcript, page 11, lines 15 to 25.
In 1998 the Applicant worked as a taxi driver for a short period before, according to him, he gave up that employment because he fell in with a bad crowd.[7]
[7] Exhibit G1: G27, page 256.
Between November 1997 and March 1998, the Applicant committed four traffic infringements that included speeding, careless driving and two instances of going through a red light.
On 16 December 1998, a 22 year old woman was a passenger in the Applicant’s taxi. According to what she told the police, he kept leering at her, looking her up and down. He asked if she enjoyed horror movies and she said she did not. He then asked her “Do you like sodomy” and repeated the question. When the taxi stopped, she opened the door to get out. The Applicant reached across, grabbed her by the wrist and pulled her back into the cab. She screamed at him to let go but he refused and demanded that she pay him. He let go and sped off with the passenger door still open. When she reported the matter to the police she was distraught and shaking. She said she was extremely frightened and thought the Applicant might rape or kill her. She said, she felt pain in her arm for around three hours afterwards.[8]
[8] Exhibit R5: pages 1870 to 1877.
The Applicant was later questioned by the police. He denied having asked if the victim liked sodomy and he claimed she went crazy when he asked about horror movies. He said he thought she was going to leave without paying and that is why he grabbed her wrist. He admitted holding her against her will for six to seven seconds. He did not report the fare evasion to the police or tell his supervisor. When asked why he did not report the incident he said it was only $5.30 and “it wasn’t important”.[9] He later pleaded guilty to common assault.
[9] Ibid, page 1705; 1873-1875
In the hearing, the Applicant said it was not entirely clear to him what had happened, but the general tenor of his evidence was that he would not have done anything untoward, and he definitely would not have asked about sodomy. He said he grabbed the victim because he thought she was evading the fare, although he conceded that he knew any physical contact with a passenger was against the rules of his employment.[10]
[10] Transcript, page 48, lines 15 to 19; page 49, line 45 to page 50, line 19.
It seems unlikely that if the victim had merely evaded a taxi fare, she would have brought herself to the attention of the police, including admitting that she did not pay the fare. While the victim’s account of aberrant, inappropriate behaviour was not tested in this proceeding, it seems more plausible than the Applicant’s account.
Around three weeks later, on the night of 8 January 1999, the Applicant was driving two couples in his taxi. He dropped one of the couples off. When he later dropped the other couple off, he abruptly said “Out” to which the male passenger asked “Do you want a problem?”. As the couple got out of the taxi, the Applicant also got out and approached the male passenger with a raised right hand in which he held a kitchen knife. He pointed the knife at the passenger and motioned it towards him, bringing the blade to within about 15cm of the passenger’s chest. The passenger backed away and the Applicant got back into the taxi.
When questioned by police the Applicant said he was upset about comments made by the group which referred to the radio station he had been listening to and his appearance. He claimed he pushed the complainant with his hand and the complainant pushed him back. He denied having taken the knife outside the taxi or approaching anyone with it.[11]
[11] Exhibit R5: pages 1710 to 1711.
In the hearing, the Applicant claimed the passengers had bullied him, including pulling his hair, putting their feet on the middle console, and playing around with the radio.[12] He did not report these details to the police at the time, only saying he did not like comments the passengers made about the radio station and his appearance.[13]
[12] Transcript, page 46, lines 25 to 28.
[13] Exhibit R5: page 1711.
The Applicant agreed that he got out of the taxi but claimed he did that for his safety as the passenger was big and wanted to fight him. That does not make sense: the way to avoid a fight was to stay in the tax and drive away. He recalled pointing the knife at the passenger.[14]
[14] Transcript, page 46, lines 5 to 9.
The Applicant said he was never affected by drugs or alcohol when he was driving the taxi.[15]
[15] Transcript, page 48, lines 25 to 28.
In April 1999, the Applicant was sentenced for possession of a knife in public, and two offences of common assault with respect to these two incidents. He was put on probation for two years.
On the evening of 5 September 1999, a female taxi driver was standing in a car park behind her residence when she saw a dog chase her cat. According to her, she had a verbal altercation with the Applicant (who did not own the dog). He punched her repeatedly and pushed her backwards over a cement ledge approximately one foot high, causing her to fall over. He lent over the top of her and kept hitting her in the head. When the police arrived at the scene the Applicant was too intoxicated to be interviewed. He was interviewed on 13 September 1999 and admitted there was an altercation but denied assaulting her. He said she had assaulted him. He could not explain how she had received the injuries that night.[16]
[16] Exhibit R5: page 1701.
A committal hearing, in which the victim and other witnesses were cross examined, took place on 7 December 1999. The Applicant did not enter a plea. He was committed to the District Court for trial.[17]
[17] Ibid, pages 1731 to 1779.
On 22 December 1999, the Applicant committed another assault, the facts of which are not before me. He was fined $300 for that on 3 October 2002.[18]
[18] Exhibit R5, page 1970
On 26 May 2000, the Applicant was sentenced in the District Court for the assault occasioning actual bodily harm against the female taxi driver. The learned Judge accepted that the Applicant grabbed the victim’s hair, assaulted her and punched her four or five times. She suffered a lump on her head and abrasions over her right ear. She has been left with headaches, a sore left shoulder and a sore neck. His Honour said a disturbing feature of the case was that the Applicant had committed the offence in breach of a probation order. He warned the Applicant that if he came before the courts again for violence, he had every prospect of being sent to gaol. His Honour said:
“It seems to me that you are letting your temper get the better of you. Your probation officer has expressed the view that you should attend an anger management program. I note that it was suggested to you but you declined to do so.”[19]
[19] Exhibit R5: pages 1948 to 1950.
The Applicant was put on probation for 18 months with a condition that he attend an anger management program as directed and perform 100 hours of community service.
In the hearing, the Applicant denied having any recollection of this offending or the court proceedings. He did recall the anger management course and he thought it had been useful, although he said “I don’t think I probably addressed the underlying issues at hand at that period of time in my life.”[20]
[20] Transcript, page 64, lines 19 and 20.
In August and September 2002, the Applicant committed several traffic offences and two dishonesty offences. In 2003 he committed more traffic offences. In 2004 he was found in possession of dangerous drugs, he committed several traffic offences including drink driving, disqualified driving, uninsured driving, using an unregistered vehicle, using permit/plate/label for another vehicle, and he committed a stealing offence.
In January 2006 the Applicant committed common assault for which he was later fined. Later that year, he graduated with a Certificate 3 in Aeroskills (Aircraft Maintenance Engineering). He subsequently worked for Flying Colours Aviation, Aero Pacific, Jetline Engineering, and Australian Defence Force through Australian Areospace. He is qualified to Diploma level in Aircraft Maintenance Engineering.[21]
[21] Exhibit G1: G13, page 127.
The Applicant committed several more drug possession and traffic offences between 2007 and 2010.
At the age of 43, which would have been in 2014, the Applicant commenced using methamphetamines, first smoking it, then taking it intravenously.[22] He continued to use cannabis.
[22] Exhibit G1: G27, page 250.
In early 2014, the Applicant was found in possession of drugs and utensils, and he was put on a good behaviour bond and ordered to do drug diversion. He recalled doing the drug diversion as group counselling and that he temporarily stopped using drugs.[23] He did not commit another drug offence until August 2016. However, he did commit traffic offences and he evaded a fare on public transport. In September 2016 he was put on another good behaviour bond and ordered to do drug diversion. He did not recall that one.[24]
[23] Transcript, page 65, lines 1 to 10.
[24] Transcript, page 65, lines 26 to 31.

On 19 September 2016, five weeks after that sentence was imposed, the Applicant threatened a female staff member at council library. He kicked a toilet door and when she came to investigate the noise, he moved towards her yelling “Get out and leave” and swearing. He stopped approximately 30cm from the victim’s face and yelled “You need to step back”. The victim told him he needed to leave. He got close to her face, raised his left arm back and swung his hand at her head stopping abruptly approximately 5cm from her right ear. He then smiled and asked “Do you want me to hit you?” The victim replied “No” and he entered the lift.[25] The Applicant was later convicted of assault. In the hearing, he said he vaguely recalled the incident but did not recall motioning to hit the victim. He thought there was a disagreement and then he left, however he said he would not dispute the police facts.[26]
[25] Exhibit R4: page 1314.
[26] Transcript, page 65, lines 33 to 40.
Throughout 2017, the Applicant committed more drug possession offences and a property offence. In the first half of 2018, the Applicant was caught with a knife in public,[27] with drugs and stolen property, he contravened a direction or requirement, and he failed to appear in accordance with a bail undertaking several times.
[27] Exhibit R3: page 947.
On 10 May 2018 there was an incident that resulted in the police deciding to apply for a Domestic Violence Order (“DVO”) for the protection of “Ms K.”[28] The Applicant described their relationship as friends who took drugs together and were also in a sexual relationship.[29] In the hearing, the Applicant denied the alleged incident that gave rise to the DVO. The Applicant was in court when the DVO was made on 16 May 2018.[30]
[28] Exhibit R4: pages 1669 to 1670.
[29] Transcript, pages 22 and 23.
[30] Exhibit R4: page 1467.
In July 2018, the Applicant was sentenced to 14 days imprisonment, suspended for six months, for breaching bail. In August 2018, he breached bail again and he was sentenced to imprisonment for one month. For breaching the suspended sentence, the sentence was fully invoked but he was granted immediate parole.
In September 2018 there was an altercation between the Applicant and Ms K. They verbally abused each other on an overpass. Ms K lunged at him with an item in her hand, then they walked away from each other. The Applicant then approached her and grabbed an item in Ms K’s hand and forced it away from her. There was a scuffle and Ms K’s backpack fell over the overpass. They each told the police they were assaulted by the other. He was charged with breaching the DVO and remanded in custody for a court appearance on 24 September 2018.
On 24 September 2018, the DVO was varied. Its terms included that the Applicant had to be of good behaviour and not commit domestic violence against Ms K, and he was prohibited from approaching within 50 meters of her. The order was to stay in effect until 15 May 2023. The Applicant was present in court when the order was made.[31] The charge arising from the overpass incident was ultimately dropped. In the hearing the Applicant did not admit to having assaulted Ms K.
[31] Exhibit R4: page 1266.
The Applicant continued to breach bail and use drugs. In March 2019, he committed trespass, and in a separate incident he committed a public nuisance. He approached a Deliveroo driver at KFC and asked him the time. The driver, who had limited English, showed him the time on his phone. The Applicant abused the driver, calling him a “c-nt” and got in his face. The manager of the KFC store asked the Applicant to leave, however he grabbed hand wipes to throw on the ground and threatened to bash the manager's head in.[32] The Applicant did not dispute these facts, but he said he did not recall threatening to bash the manager’s head in. He claimed the driver called him a “c-nt” under his breath which is why he responded by saying that word as well.[33] However, that does not seem likely given the driver had limited English and he did what the Applicant’s asked of him.
[32] Exhibit R5, page 1176.
[33] Transcript, page 68, lines 15 to 21.
This is the third offence, chronologically, in relation to which the Applicant, in his evidence to the Tribunal, sought to minimise his anti-social conduct and cast blame onto his victims. First, he denied inappropriate conduct toward the young female passenger in his taxi and said he assaulted her because she was evading the fare. Second, he claimed he got out of his taxi and fronted a male passenger for his own safety due to bullying. Third, he attributed his offensive language and aggressive behaviour at KFC to provocation by a delivery driver who, in fact, complied with his request. I think it most unlikely that the Applicant is so unlucky that three people without any apparent connection to each other all painted him in an unfairly poor light in reports to the police. Where his accounts differ from the police accounts, I prefer the police accounts.
Over the following months the Applicant committed trespass twice more and continued committing drug possession offences and breaching bail undertakings.
The Applicant was sentenced for several offences on 29 July 2019. He received two concurrent terms of imprisonment of one month and another six months with immediate parole.
Prior to the sentencing hearing, a friend, Mr Stephan, provided a character reference to the court. In the reference, he said:
·     he had known the Applicant for nine years, and he described him as kind, compassionate and responsible;
·     the Applicant had experienced some ongoing, stressful issues concerning his family's welfare over the past few years;
·     he had become estranged from both parents “for some time” which had caused emotional distress and anxiety;
·     his sister (his only sibling) has been suffering from depression and dependence on prescription medications for some years. Her condition had recently worsened and she had spent a significant amount of time in hospital;
·     his niece had recently left home and was estranged from her mother; and
·     his “recent substance dependence” was chiefly related to stress and the disconnection experienced in relation to his family in recent months.[34]
[34] Exhibit R2: page 157.
In the hearing, the Applicant described Mr Stephan as a good friend.
In August and September 2019, Queensland Corrective Services (“QCS”) conducted a Risk of Recidivism (“ROR”) assessment.[35] The report noted that:
[35] Exhibit R4: pages 1169 to 1178.
·     the Applicant was residing in temporary accommodation with a friend. He often couch surfed and had done so for a number of years;
·     he was encouraged to apply for his own accommodation in order to mitigate the risk of associating with pro-criminal peers;
·     he reported a State Penalties Enforcement Register (“SPER”) debt of $25,000 and said he did not have a payment plan;
·     he reported no underlying reasons for his cannabis use other than enjoying the lifestyle;
·     he reported regular use of methamphetamines which started later in life. It helped him to function, he did not feel as though his substance use was problematic and had no motivation to cease using drugs outside his current parole order. He said he had never experienced withdrawals and did not believe he would have any issues with abstaining for the purposes of parole;
·     he reported no mental health problems and no treatment needs;
·     he reported minimal contact with his family and had not spoken to his parents in approximately four to five months due to “family issues”;
·     his sister was his primary support person;
·     he was the respondent in a current DVO, he had been in a relationship with the aggrieved for approximately three years and they had separated due to her poor mental health;
·     he presented with a negative attitude towards women and accepted the use of violence against women for “self-defence”; and
·     high risk factors were employment and domestic violence (perpetrator), and medium risk factors were accommodation and substance abuse.
When the Applicant was asked about the comments by Mr Stephan and QCS about a period of estrangement from his parents, he said “…we had a family dispute, disagreement. And I think I was not in contact with them for probably about a month or something like that”. With respect to the words “for some time now”, he said there were:
“just normal, everyday family disputes. But I’ve never lost their support, Member. I’ve always been on their side. I’ve always supported them. They have done the same thing for me.”[36]
[36] Transcript, page 62, lines 26 to 39.
When the report of four or five month of estrangement in the ROR assessment was put to him, he said “That would have been due to my drug binges”. When he was asked “Right, so it wasn’t one month. It was more than that?”, he said:
“I don’t recall exactly now. But these so-called disputes were nothing major at all ever…That would have been just the one period throughout the rest of my entire life that something like that has happened. It’s nothing major at all.”[37]
[37] Transcript, page 63, lines 6 to 11.
However, this characterisation is not consistent with Mr Stephan’s description of the estrangement causing emotional distress and anxiety. I think the Applicant tried to downplay the seriousness of the estrangement.
The Applicant’s mother, when asked about it, said it was “just a silly thing…he flares up and he doesn’t talk to me”. She recalled that the Applicant wanted some money from her, and when he was going to work she gave him some food and asked if there was a freezer at work to put the food in. He:
“flared up…and then he said too much to me, and I said, ‘Ash, I think you better go now, please. I don’t want to listen to any’ – you know, that – for that reason, he didn’t talk to me one or two months…”[38]
[38] Transcript, page 122, line 35 to page 123, line 5.
The Applicant estimated that his SPER debt was “$20,000 plus” and that he had repaid “maybe $3,000”.[39] With respect to couch surfing the Applicant confirmed that he was not homeless as he stayed with people he knew.
[39] Transcript, page 69, lines 5 to 8.
While on parole the Applicant continued to offend. He was found in possession of drugs and drug related items, and he travelled without the correct fare.
QCS notes in October 2019 record a discussion between the Applicant and his parole officer about his methamphetamine use. He was not open to the idea of attending Drug Arm (a rehabilitation service) and he refused to contact Anglicare to complete an Intake and Assessment.[40] When asked about this, he claimed he had thought his parole officer would put him forward for Anglicare and he was waiting for an appointment. When it was pointed out that the QCS notes say the opposite, he said he did not know why he refused and maybe there were other things going on in his life. He added he was not insightful due to a distorted sense of reality through the years of drug use.[41]
[40] Exhibit R3: page 702.
[41] Transcript, page 70, lines 1 to 36.
In November 2019 and January 2020, the Applicant was caught in possession of dangerous drugs and drug related items. In January, March and April 2020 he committed unlicensed driving (x2), fail to stop at a red light, drug possession and he had a knife in a public place.
On 8 May 2020, the Applicant was served with a DVO for the protection of “Ms N” with whom he was in an intimate relationship. The DVO prohibited him from remaining at, entering or attempting to enter, or approaching to within 100 metres, of the premises where she lived or worked. On 26 May 2020, the Applicant contacted Ms N advising he wanted to get his friend’s property from her car. He later went to her car and took things from inside it. [42] Also, on that day he was found with a knife in his backpack. He was subsequently convicted of breaching the DVO and having a knife in a public place.
[42] Exhibit R4, page 1223.
Because of this contravention, the DVO was varied on 27 May 2020 and extended until 27 May 2025. The varied order was served on the Applicant on 6 July 2020 and the conditions were explained to him in full, namely that he was prohibited from approaching within 200 meters of Ms N’s usual place of residence and any premises where she lived, worked, or frequented.[43]
[43] Exhibit R4: page 1232.
The Applicant was due to be sentenced for several offences on 10 July 2020. Mr Stephan again wrote a character reference for him. The letter, dated, 6 July 2020, was very similar to the earlier reference. It also indicated that the Applicant was making a concerted effort to improve his life through drug counselling and time spent in a detox centre. He pledged his help and support. He referred to the Applicant having provided financial support to his sister and niece. He added that the Applicant was deeply concerned about the welfare of his mother and had expressed a desire to resolve his current predicament in order to have the means to assist and support her. He said he believed the Applicant was sincere in his desire to turn his life around and make a fresh start.[44] The Applicant’s father suffered a severe stroke and it may have happened around this time, given the Applicant’s apparent concern for his mother.
[44] Exhibit R2: TB2, page 80.
A Mr Rogers also provided a reference (undated). He said he had known the Applicant for five years and referred to him not having had an easy life, without any explanation of that. He indicated that the Applicant was:
“now getting his life back on track. He is now voluntarily attending counselling and rehabilitation services to make a change for a better future…He has recently changed the path he was going down to a new pathway for a better future…”.[45]
[45] Ibid, TB2, page 88.
There was also a letter from the Metro North Mental Health – Alcohol and Drug Service that indicated he had voluntarily attended the Getting Ready for Change Information session on 7 July 2020 with the Biala Alcohol and Drug Allied Health and an Individual follow-up appointment on 8 July 2020, and he was scheduled to engage in a 50-minute follow-up consultation on 17 July 2020. The Applicant thinks he engaged in the counselling for three months or less, and he cut down on his drug use a lot or entirely, before resuming “probably later that year”.[46]
[46] Transcript, page 71, line 28 to page 72, line 2; page 75, lines 45 to 48.
On 10 July 2020, the Applicant was given a total effective sentence of imprisonment for eight months, suspended for two years. There is no evidence that he followed through on his apparent intention to support his mother.
On 28 August 2020, the Applicant contravened the DVO relating to Ms N, and he was found in possession of dangerous drugs and related property and utensils. The Applicant denied that he engaged with drug rehabilitation services prior to his sentencing because he wanted the court to think he was dealing with his problem and exercise some lenience.[47] However, the last minute timing of his engagement followed by drug offending so soon after he was sentenced strongly suggest that this was the case.
[47] Transcript, page 72, lines 35 to 38.
The Applicant breached the DVO on 19 December 2020. On 9 January 2021, he breached it again by going to Ms N’s residence, according to him, to collect his property.[48] He again contravened the DVO on 30 January and 26 February 2021, at which time he was remanded in custody. Although it appears that Ms N consented to these contraventions, they were still contraventions, and on the last occasion there was some suggestion that the Applicant had not been invited and Ms N was afraid of him. She pretended she needed to call her doctor and she asked the receptionist to contact police for her. When the police arrived, the Applicant was hiding in the bedroom. Ms N told the police that she was frightened of the Applicant while he was there and did not want him to know she had contacted them for assistance.[49]
[48] Exhibit G1:G10, page 86
[49] Exhibit R2: page 244
When asked why he committed a raft of domestic violence offences while on a suspended sentence, the Applicant said they all occurred in the context of a previous suicide attempt in the middle of 2020 by Ms N where she slashed her wrists because he refused to come to her. He claimed she said “I don’t want you to call me an ambulance. I will not let them in, and they will find a dead body in here”. When he arrived, she was bleeding profusely. He called an ambulance, cleaned up the blood and the police arrived. He was not charged with breaching the DVO on that occasion. He claimed that after that, Ms N would call and cry and he felt compelled to go to her because he always had that incident in the back of his mind. He would go there to clean, cook for her, prepare a bath for her and things like that.[50] There is no mention of the suicide attempt the applicant described in any of the police, court or parole records, or any material the Applicant filed in this application, which seems unusual if it happened.
[50] Transcript, page 73, line 35 to page 74, line 44.
On 12 April 2021, the Applicant was sentenced for one contravention of a domestic violence order, four contraventions of a domestic violence order (aggravated offence), and some drugs offences. He was given an effective sentence of three months’ imprisonment and the suspended sentence of eight months that was imposed 10 July 2020 was fully invoked. With time already served on remand, he was given immediate parole. In passing sentence, the learned Magistrate noted that the Applicant committed the offences while subject to a suspended sentence and bail. The DVO was varied so that the Applicant was prohibited from contacting or attempting to contact Ms N or asking someone else to contact her. [51]
[51] Exhibit G1: G7, page 71.
Also on 12 April 2021, QCS assessed his ROR score as 16 which represented a high risk of further general offending.[52]
[52] Exhibit R4: page 1163.
QCS records indicate that two days after he was sentenced, the Applicant “engaged in victim blaming statements and continually referred to his offending…as ‘technical breaches’ and being ‘set up’ by [Ms N] to be charged” and that he “continued to engage in deflection of blame”. He said a close friend had told him that Ms N was eight months pregnant with his child and he intended to apply for full custody. His parole officer advised him to contact Relationships Australia about mediation services and advised him to complete a domestic violence program to demonstrate he was working on addressing his behaviour. He said he would consider it.[53]
[53] Exhibit R3: page 688.
On 23 April 2021, the Applicant contacted Ms N using a friend’s mobile telephone and he talked about wanting to reconcile their relationship.[54]
[54] Exhibit R5: page 1274.
On 29 April 2021 the Applicant was directed by his parole officer to obtain a mental health care plan (“MHCP”) to engage with a Domestic Violence informed psychologist, noting he was not eligible for an agency Domestic Violence programs due to the short length of his order. He did not obtain an MHCP.[55] The Applicant claimed that he made an appointment with his GP but he went to prison before he could attend the appointment.[56] However, he was not returned to custody until 19 May 2021, which indicates that he did not prioritise getting an MHCP. Further, the very day after being told to arrange domestic violence counselling, he left nasty, threatening messages on Ms N’s phone in breach of the DVO. The messages included “you are an ugly whore”, “you’ve got a big hole”, “mark my words, I promise you, this is a no threat, you are going to die” and “I know who you’ve slept with”.[57]
[55] Exhibit R2: TB1, page 11, Exhibit R3: TB5, page 639.
[56] Transcript, page 76, lines 25 to 28.
[57] Exhibit G1: G11, page 98.
In the hearing, by way of explanation, the Applicant referred to his circumstances at the time, saying:
“My dad had suffered a massive stroke, he was paralysed in a nursing home and waiting to die. The impact it had on me and my family, losing the woman who was pregnant with my child, to another man. Plus, you know, years of drugs as well, I was – you know, I was quite – I was very depressed.”[58]
[58] Transcript, page 76, lines 32 to 38.

He also said he acted out of jealousy and frustration.[59]
[59] Transcript, page 32, line 14.
On 6 May 2021, the Applicant demanded to know his female parole officer’s last name for his “personal records”. When asked why this information was required, and informed it was inappropriate to ask, he said it was purely for his own “records”. He added “that's fine I'll find it out anyway". He maintained he would find the information regardless of consent. It was noted in QCS records that this was indicative of his ongoing pattern of coercive control and poor attitudes towards females and authority.[60]
[60] Exhibit R3: TB5 pages 681 to 682.
On 12 May 2021, Ms K went to a residence to pick up some property. The Applicant was there and asked her to get him drugs which she declined to do. He pushed her over causing to fall onto the ground.[61]
[61] Exhibit G1: G11, page 94.
On 14 May 2021, the Applicant called Ms N from a friend’s mobile telephone and hung up. On 16 May 2021, Ms N reported that the Applicant had been contacting her. While she was at the police station, she received a phone call from her friend. During the phone call the Applicant interjected and began talking to her. Police heard and recorded the conversation. The Applicant declined to be interviewed by the police. [62]
[62] Exhibit R3: TB5, page 638.
All of this offending breached the Applicant’s parole conditions. On 17 May 2021, QCS provided an “Advice to Parole Board”.[63] It stated that the Applicant had strong gender attitudes and engaged in victim blaming during case management interviews. He had recently lodged a private application for a DVO against Ms K (although in the hearing the Applicant recalled that it was Ms N), however it was struck out. The application for the order spoke to ongoing attempts by the Applicant for control. Further, the advice mentioned attempts to engage in intimidating behaviour during case management interviews, including when he asked for his supervising officer’s surname. The advice concluded that the risk of harm to the community could not be managed at that time.[64] On 17 May 2021, the Applicant’s parole was indefinitely suspended.[65]
[63] Exhibit R3: TB5 page 676.
[64] Exhibit R3: TB5, page 638.
[65] Exhibit R3: TB5, page642.
In the hearing, the Applicant said he did not agree with the comment about gender roles and the conclusion that the risk of harm could not be managed in the community at that time.[66] This is despite the fact that he had been offending frequently, and within 48 hours after the preparation of the report, he brutally attacked Ms K (see below). I find that this shows a present lack of insight into his criminality at the time.
[66] Transcript, page 77, lines 35 to 38.
On 18 May 2021, Ms K went to an address where the Applicant was staying to collect some possessions. When she left he followed her to the train station, grabbed her property and invited her back to the address for some dinner. She complied because he had taken her possessions. Later that evening there was a verbal argument. Ms K went to sleep in the spare bedroom. Around 5am the next day, she awoke to the Applicant punching her in the ribcage, yelling “shut the fuck up”. He continued to assault her. She told a witness what happened and then there was an argument between all three. Ms K fled to a police station directly across the road. The police saw scratch marks across her chest and abrasion to her hands and forehead. The Applicant was arrested. He declined to be interviewed by the police, and he was refused bail.[67] I accept that the Applicant did not use drugs after being remanded.
[67] Exhibit R3: TB1page 14.
The Applicant was subsequently convicted of several offences including choking/suffocation and assault. In passing sentence, the learned Judge’s finding of fact included:
“…you associated with this complainant [Ms K] and ultimately, in circumstances where you convinced her to return to a dwelling with you, and when she was asleep in your presence, she was awoken by you punching her in the ribs on her right side. You continued to punch her when she curled into a ball and thereafter you grabbed her around the neck with both hands and choked her for approximately two minutes, causing her to lose consciousness…You then grabbed her chest and scratched her and continued yelling at her to ‘shut the fuck up’…The injuries the complainant suffered were grazes over her chest, hands and forehead, and a tender right trapezius and left neck.”[68]
[68] Exhibit G1: G8, page 75.
On 25 May 2021, the Applicant applied for re-instatement of his parole. In his application he gave an account that differed from the police account, painted him as the victim and accused Ms K of abuse. He also claimed that Ms K had threatened suicide and he had tried to help her. Among some of the things he said were:
·     Ms K was using heroin and was extremely emotional, angry, neurotic, and stalking him;
·     she came to his home high on heroin, causing a scene, and hurling insults and obscenities;
·     on 19 May 2021 he awoke to find her asleep next to him. He asked her to leave, told her he was expecting a child with someone else, and asked her to leave;
·     she got angry and did want to leave, while he remained calm and reassured her;
·     he took her bags to the train station, but she started crying, screaming and threatened to jump in front of oncoming traffic;
·     he pleaded with her to stop, she threatened to have him bashed, he got on his bike with her bags and rode home, and she arrived 10 minutes later;
·     she threw a bottle at him which smashed on the wall; and
·     Ms K lied and told the police that he had assaulted her.[69]
[69] Exhibit R3: pages 609 to 616.
Further, he said:
“I had stopped her from killing herself and causing self-harm. She had come looking for me. I had gone out of my way to help her….I did the right thing and kept the peace called the police. No Sir/Madam, I didn’t breach the DVO, she did. I will be taking out a no contact DVO against her and have her charged for trying to stab me with a pair of scissors and common assault as well as stalking.”
The Applicant’s application was unsuccessful. When asked about this account in the hearing, he said “Look, that was my version of events at the time, but the fact that I pleaded guilty to the police statement, and I’ll stick to that.”[70]
[70] Transcript, page 77, line 44 to page 78, line 2.
In the hearing, he said of the attack, “it wasn’t premediated or done with an intent to cause harm. It’s certainly an act committed in the heat of the moment”. He said Ms K was on heroin, he was coming down off methamphetamine (having not slept in two days), the information about Ms N expecting his child “overloaded” Ms K and him, and it led to “the appalling circumstance of me assaulting her whilst trying to remove her from my address”.[71] However, the Applicant commenced his assault on Ms K while she was asleep.
[71] Transcript, page 25.
The Applicant maintained that he enticed her to return to the residence to look after her as she was hungry and emotionally distraught. He said he offered “I’ll cook you a meal, you can sleep…in my bedroom”. He said he thinks he forgot about the DVO. He maintained that Ms K had lunged at him with a pair of scissors on a previous occasion.[72]
[72] Transcript, page 28, lines 14 to 20.
In September 2021, the Applicant was approved for residential accommodation in prison. I accept that this is indicative of demonstrated good behaviour, stability, commitment to a progression plan, and willingness to work.
In October 2021, the Applicant’s father passed away. His uncle gave evidence that, at that time, he told the Applicant:
“Well, look, circumstances perhaps weren’t right and a decision was made by your mother that it would be more prudent if you didn’t attend the funeral for reasons that she were best to respond to.”[73]
[73] Transcript, page 105, lines 14 to 16.
In November 2021, the Applicant completed a certificate in hospitality and a Short Substance Abuse Intervention program.[74]
[74] Exhibit R2: TB5, page 425.
In early 2022, the Applicant applied to the Supreme Court for bail. In March 2022 his application was refused.[75] He said his plan was to get out of prison and into a residential rehabilitation service. When, in the hearing, he was asked why he thought he should be back in the community at that time, he said “Well, I had abstained from drugs for so long”[76] referring to his abstinence since he was incarcerated.
[75] Exhibit R2: TB5, page 752.
[76] Transcript, page 78, lines 37 to 41.
In August 2022, the Applicant was convicted of:
·     Choking suffocation Strangulation domestic Relationship – domestic Violence offence
·     Assaults Occasioning bodily harm - Domestic violence offence
·     Contravention of DVO (aggravated Offence) - domestic violence Offence and
·     Unlawful possession of suspected stolen Property.
These offences captured his attack on Ms K and the abusive messages he sent to Ms N.
In passing sentence, the learned Judge’s remarks included:
“You therefore have not co-operated with investigating police and this significant mitigating feature is not present…
…But as I am informed, you’re going to be deported as soon as you’re released from custody and, as you have some very serious misogynistic tendencies which you have not addressed, this looks like it’s a forlorn hope. I am also imposing these sentences to deter you and others from committing these or similar offences and quite simply, recidivist domestic violence offenders should expect sentences reflective of considerations of both personal and general deterrence. I am also imposing these sentences to make it clear that the community, acting through the Court, absolutely denounces this sort of conduct, which is unfortunately all too prevalent.
…No submissions have been made that deporting you back to Fiji will cause any specific hardship or distress.
However, in circumstances where both your mother and your sister are present in Court today, and you have lived in Australia since you were 15 years of age, except for when you were working abroad, I am of the view that it can be inferred that you will experience hardship as a result of that.”[77]
[77] Exhibit G1: G8, page 76.
The Applicant was sentenced to imprisonment for three years, to be suspended after having served 12 months, with 255 days of time already served.
In the hearing, the Applicant disagreed that he has serious misogynistic tendencies. He focused a lot on the fact that each of his relationships, with Ms K and Ms N, were toxic and distorted by drug use. However, I note that the two women the Applicant assaulted in 1998 and 1999 were strangers to him and no drugs were involved, although alcohol was involved in one assault.
In September 2022, the Applicant approached Relationships Australia for support.[78]
[78] Ibid, G32, page 374.
On 20 October 2022, the Applicant’s visa was cancelled. Around that time, he sought alcohol and drug support.[79] In December 2022, he was transferred to immigration detention.
[79] Ibid, G33.
In January 2023, he was seen by an International Health and Medical Services (“IHMS”) psychiatrist who opined that he had adjustment disorder. He continued to engage with IHMS with respect to his feelings about being in detention and his efforts at rehabilitation.
PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1 of the Direction requires 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. I should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community. The Direction provides that “serious conduct” includes behaviour or conduct that does not constitute a criminal offence.
In determining the weight applicable to this Primary Consideration, paragraph 8.1(2) of the Direction requires me to give consideration to:
a)The nature and seriousness of the Applicant’s conduct to date; and
b)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of the Applicant’s criminal offending or other conduct to date, I must have regard to the following relevant matters:
(a)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)the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)…;
(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;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
…
The Applicant committed over 100 offences during a 23 year period along with numerous traffic infringements and fare evasions. He has been physically violent on at four separate occasions, threatened people on four separate occasions, and there is an assault with facts unknown. In six of the incidents, the victims were women. The attacks on the female taxi driver in 1999 and Ms K in 2021 were brutal and sustained. His attack on Ms K involved suffocation. The attacks on Ms K constituted family violence and so did the contravention of the DVO that arose from threats the Applicant made to Ms N.
What is more, according to the Applicant, Ms K threatened suicide the night before he attacked her, and Ms N had tried to kill herself months before he sent abusive messages to her. They both had mental illnesses according to him. While there was no independent evidence that these incidents occurred, the Respondent did not challenge the Applicant and I am prepared to accept they did. What that means is that the Applicant offended against two women who were psychologically vulnerable.
The Applicant’s traffic infringements include the kind of conduct that tends to increase the risk of accidents, including speeding, careless driving, going through red lights and stop signs, drink driving and using an unregistered vehicle. They also include infringements that undermine the government’s ability to control who operates vehicles on roads and which vehicles are operated (using permit/plate/label for another vehicle disqualified driving, unlicensed driving) which indirectly impacts the safety of road users. The Applicant committed dishonesty and property offences. Finally, he committed a multitude of DVO contraventions and breaches of bail undertakings.
It is not in dispute that the Applicant’s offending history is extensive, frequent and there was an escalation in seriousness in recent years. His violent offending is, by its nature, very serious. So is the cumulative effect of his repeat offending as multiple members of the community were menaced and/or physically injured, and a lot of police, court and QCS resources were expended in largely unsuccessful efforts to manage the Applicant’s behaviour and prevent him from re-offending.
A custodial sentence is the last resort in the sentencing options available to a court, and for many years the Applicant got the benefit of fines, community based orders and suspended sentences. Finally, custodial sentences of up to eight months were imposed for the non-violent offending. While the violent offences are very serious regardless of the sentences imposed, I note that the District Court imposed a sentenced of imprisonment of three years for the most recent violent offending against Ms K:
“…to make it clear that the community, acting through the Court, absolutely denounces this sort of conduct, which is unfortunately all too prevalent.”[80]
[80] Exhibit G1: G8, page 76.
The Applicant’s criminal and traffic history, as a whole, is extremely serious.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Here I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.[81]
[81] Paragraph 8.1.2(1) of the Direction.
I must have regard to the following relevant factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non- citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence.[82]
[82] Paragraph 8.1.2(2) of the Direction.
The Applicant’s offending traverses several categories. His traffic offending includes the kind of behaviour that has the potential to increase the risk of harm to road users. That harm includes very serious physical and psychological injury and even fatalities.
His offending includes menacing and violent conduct toward female partners, and male and female strangers. His violence has included sustained assaults and choking a victim until she lost consciousness. The harm from this type of offending includes serious physical and psychological injury. The impacts on the victim of the assault occasioning bodily harm in 1999 provide some insight into the longer term impacts of violent offending. That victim indicated, in a statement to the sentencing court, that blood from her injuries was trapped between her skull and scalp (smelling bad) for quite some time. She did not want to cut her hair which was covering the bruises but she was afraid to grow it long (as it was when she was attacked) for fear that it could be used to hold her down or drag her. She suffered a lot more headaches and neck pain since the attack, and she had problems breathing and with her left ear. She had become afraid of noises, younger people, or going outside her home or car after dark. She had nightmares and she cried because she felt old and “useless” at defending herself.[83] Ms K did not make a victim impact statement, but one can easily imagine the physical and psychological impact on a person of being woken to a beating and then choked.
[83] Exhibit R5: pages 1721 to 1722.
The Applicant has also been involved with stolen property and evaded fares on public transport. The harm from this is financial loss to individual members of the community and to public transport operators.
The nature of harm from offences relating to personal drug use is difficult to gauge. There is indirect harm to others in the community if drug use leads to other crimes, or if it encourages another member of the community to consume drugs to their detriment. The Applicant has consumed drugs with women who he believed suffered from mental health problems, although it is not evident whether they would have used drugs in the absence of his drug use.

The Applicant was adamant that he has reformed. Other witnesses, such as his sister, gave evidence along those lines. In the past the Applicant has engaged with rehabilitation providers while expressing an intention to rehabilitate, and friends have assured courts that he is committed to reforming, but he has gone on to re-offend. The Applicant has also expressed a determination to assist his mother before, but not done so, and continued to use drugs and offend.
The Applicant described being in detention as “the most traumatic and difficult period of my life, but importantly, it’s been the most biggest wake up call”, and several times in his written and oral evidence he expressed remorse for his offending. He claims that this time, he is thinking clearly as he has stopped using drugs and he never wants to be incarcerated or lose his visa again. The Applicant was raised Christian, and he has expressed renewed commitment to Christianity and described himself as now being on a Christian journey.
The change the Applicant would need to make to refrain from offending would be a tremendous one given his entrenched antisocial attitudes and behaviours prior to his incarceration. Staying off drugs and avoiding negative peers are not the only changes required, and he has only achieved those in custody. It does not necessarily follow that he would continue that in the wider community where he will not be in such a controlled, heavily monitored environment, i.e. where he can enjoy the drug-associated lifestyle that he enjoyed before. Further, he obviously has not had opportunities to commit driving offences in custody and the opportunity to assault females is extremely limited as, while there are some female staff members in the detention centre, there is also heavy surveillance. The Applicant’s commitment and ability to refrain from that type of offending has not been tested in the wider community. What he has established so far, to his credit, is a record of good behaviour in custody and proactive engagement in rehabilitative activities.
I have the benefit of a recent risk assessment that was conducted by Mr Matt Visser, clinical psychologist, dated 24 May 2023.[84] He interviewed the Applicant on 5 May 2023 via teleconference. He also spoke separately with the Applicant’s uncle, Dr Suresh Prasad.
[84] Exhibit G1: G27.
Before addressing that report, I note that I accept the following matters. The Applicant has not used drugs since he entered custody in May 2021, which was some two years and four months ago. While he previously did not see his drug use as problematic or arising from a dependence, he now says he had a mental (but not physical) dependence on methamphetamine, and he attributes his offending to a combination of drug use, bad influences and toxic relationships.[85] He does not believe he was ever dependent on cannabis.[86]
[85] Transcript, page 8, lines 30 to 31.
[86] Transcript, page 41, lines 33 to 35.
I accept that, while the Applicant has been in custody, he has cut ties with all his negative peers, i.e. disconnected on Facebook. I accept that he has solid, feasible plans to go into a residential rehabilitation facility for three to six months if he is returned to the Australian community, and his GP has agreed to help him arrange ongoing counselling. He has proactively made enquiries with various rehabilitation services. Further, the Beenleigh Baptist Church has offered the support of its ministry “Restore Support Group” which provides pastoral care, housing, employment, and professional care to those recently released from prison.
The Applicant has a credible offer of full-time employment with a supportive employer, which he intends to accept. That employer has known him for ten months and was impressed by his motivation and capacity to undertake rehabilitation and self-help courses to function as a better citizen. The Applicant has expressed a strong desire to provide practical assistance to his mother who is 83 years old and somewhat dependent on his sister for assistance. I accept that his uncle is a law-abiding person who is genuinely concerned with his well-being and is willing to offer support and guidance. The Applicant wants to establish whether Ms N’s child is his biological son and go through mediation so he can be a part of his life. This is a motivating factor for him to stay in Australia and out of gaol but it also carries potential to cause stress and frustration given the unhealthy relationship the Applicant had with Ms N and the DVO in place.
Prior to his interview with Mr Visser, the Applicant had done at least 30 rehabilitative courses, mostly online, and he had engaged in some counselling. The subject matter of the courses and counselling covered areas such as abuse, violence against women and girls, family violence, drugs, anger management, cognitive behaviour intervention, behaviour management, stress management and conflict resolution. There were also modules in a broad category of self-help such as building self-esteem and goal setting. In the hearing the Applicant gave examples of what he had learned which included that drugs destroy lives, how to identify triggers, how to control triggers, how to cope moving ahead without using drugs, how to control anger, how to change patterns of thinking and behaviour, recognising and identifying stress and reactions to stress, making informed decisions based on all the factors and the impact a decision will have on other people, and calming down techniques.[87]
[87] Exhibit A1, [61]. These are listed in the Applicant’s Statement of Facts, Issues and Contentions.
Mr Visser diagnosed the Applicant with Major Depressive Disorder recurrent with mild symptoms, which I will address in more detail later in these reasons. Mr Visser concluded that the risk of reoffending, if released into the Australian community without further support was moderate to high, and with support was moderate.
Mr Visser canvassed the Applicant’s violent and violence-related offending. However, it is apparent that his understanding of the Applicant’s offending in this category was incomplete. When Mr Visser asked the Applicant about his offending history, he commented that the charge related to possession of a knife in 1999 occurred during his period driving taxis as he kept a knife under his seat for protection. He did not disclose that he had used the knife to threaten someone. He also initially said none of his offences were related to physically harming anyone. When Mr Visser asked him about his assault charges, particularly the assault occasioning actual bodily harm (the female taxi driver), he said he did not remember the circumstances. He said most of his assault charges were related to disagreements involving alcohol and cannabis with people he was living with in share housing.
Accordingly, Mr Visser was unaware that the Applicant had threatened a man with a knife (while sober), beat up a female taxi driver, assaulted a female passenger (while sober), and threatened a staff member in a public library. Nor was he aware that the public nuisance offence related to threatening behaviour.
Mr Visser opined that the Applicant’s use of methamphetamine did not meet the criteria for a substance use diagnosis. The Applicant was insistent that he had never been dependent on methamphetamine.
Mr Visser thought the Applicant most likely had relatively low insight into his mental health and his drug use. The primary factors impacting on his recidivism risk were his criminal history and the risk of relapse into drug use. Factors that mitigated his risk were the length of time he has been abstinent from drug use, the number of courses he has completed while in custody, and his family support. He said ideally the Applicant would be discharged into a residential rehabilitation program for a length of approximately six months. This would allow him to transition to living in the community in a way that would decrease the risk of relapse.
Mr Visser noted that the Applicant had been diagnosed with an Adjustment Disorder with Depression and Anxiety by the treating staff at the detention centre, but he thought a diagnosis of Major Depressive Disorder was a better fit overall. He said ideally this this would be treated through sessions with a psychologist. He prescribed a sleeping medication (melatonin) and an antidepressant medication.
There are some things to note about Mr Visser’s assessment. He observed that at times the Applicant appeared to present a more positive impression than may have been accurate, notably with respect to his ex-partners and his most recent offences. While he acknowledged his substance use as being influential in both, he attributed the majority of the blame for the issues in both relationships to the victims’ mental health and instability. Similarly, he denied having any issues with dependence (e.g. withdrawal or cravings) around his use of methamphetamine, despite having been charged a large number of times for its use.
Mr Visser commented that the Applicant’s memory in general appeared stronger than what might be expected for someone with his history of drug use. He was being able to recall most jobs he had during his life and details from his childhood. The only exception was around his earliest charges, where he indicated that he could not recall the circumstances surrounding the assault occasioning actual bodily harm.
The Applicant reported having been in two significant romantic relationships in his life. The first was at the age of 33. He described his partner as having had significant mental health issues, depression, anger management problems and alcoholism. He denied any domestic violence but said at one point she had taken out a DVO against him “because she had mental health issues” and that the initial reason was “spurious”. He described Ms N as having “extreme anxiety and a personality disorder…”, and said drug use was a feature of the relationship, primarily cannabis and methamphetamines. He claimed that:
“She would ring me and say that she needed something, like money. It sounded like genuine issues. After the third or fourth breach I understood, and I accept full responsibility for going there. But the length she would go to, to encourage me to come over was compelling, and she was someone I cared for.”
The Applicant told Mr Visser, in relation to his drug use, “I liked the lifestyle I had with it – the contacts, the girls. Maybe I didn’t know how to leave it.”
With respect to Ms K the Applicant told Mr Visser:
“She has been addicted to heroin for over 20 years. She came to my house unannounced and uninvited. She opened the door and came into my room while I was asleep. I found her on my bed, and things escalated from there. I could tell she was high on heroin, and I said I wanted to get back together with [Ms N]. She got upset at that, and we argued, and started screaming at each other, I told her to get out a number of times. The last two or three times she came to my house we had to call the police to remove her from the area. The last time she had lunged at me with a pair of scissors. I didn’t want to press charges. The night of that incident she got jealous, she was pushing and shoving. I was coming down off meth, she assaulted me, I grabbed her by the neck, I did something I’d never done before. I pleaded guilty, although I wish I hadn’t now, because I had a good chance of winning the case. When I went to prison, I was told that she has done this to other men before.”
(Emphasis added)
This narrative blames Ms K and fails to acknowledge that the Applicant attacked Ms K while she was sleeping. The Applicant was taken to these comments in the hearing and asked if he regretted pleading guilty, to which he said no and added:
“When I grabbed her by the neck, I think she tried to push me away or hit me, something along those lines, is probably why I said that”.[88]
[88] Transcript, page 29, lines 5 to 9.
The Applicant then conceded that his reference to Ms K assaulting him was really a reference to her pushing him away, and that it was a fair response to being punched in the ribs, so she was not assaulting him but defending herself. When asked why he told Mr Visser that Ms K assaulted him, he said “Maybe I construed it as that, but it wasn’t exactly that”. When asked if he was trying to minimise to Mr Visser the extent of his wrongful behaviour, he rather unconvincingly said “No, I accept full responsibility and culpability for my actions”.[89]
[89] Transcript, page 29, lines 10 to 25.
The Applicant was asked to explain what he meant by “I wish I hadn’t pleaded guilty, I had a good chance of winning the case”. He said his lawyer told him that he had a good chance and that when he was in prison (on remand) other people told him Ms K had “done this to other men”.[90]
[90] Transcript, page 29, lines 40 to 41.
The following exchange then occurred:
TRIBUNAL:“Had done this type of thing”? What, got people to assault her? What do you mean?
APPLICANT: No, I mean she had – I think, I met some of her extended family members – and that she had sent people to prison before, by whatever she did, that’s what I – that’s what I construed out of that conversation.
TRIBUNAL: She had sent people to prison?
APPLICANT: That she had put people in prison before.
TRIBUNAL:She, by being the victim of a crime?
APPLICANT: I don’t know, that’s all I know. I haven’t – I didn’t ask them to elaborate on that.[91]
[91] Transcript, page 30, lines 4 to 16.
It is very troubling that the Applicant believed that his incarceration was something Ms K had done to him and he did not seem to have any better insight when he gave evidence about that.
With respect to the Applicant having told Mr Visser that he wished he had not pleaded guilty, he said that comment was taken out of context and that it was a reference to the advice his lawyer gave him at the time. He denied that he expressed regret to Mr Visser that he had pleaded guilty, and added that he pleaded guilty despite his lawyer’s advice.[92] However, the report quoted the Applicant verbatim saying “I pleaded guilty, although I wish I hadn’t now, because I had a good chance of winning the case”, so pointing out his lawyer’s advice and the fact that he pleaded guilty does not assist the Applicant. It merely confirms the context in which, according to Mr Visser, the comment was made. I am satisfied that the Applicant expressed regret to Mr Visser that he pleaded guilty to the charges relating to the assault on Ms K. I do not accept the Applicant’s claim that he was advised that he had a good case as there is no evidence to support that.
[92] Transcript, page 30, line 22 to page 31, line 33.
Returning to Mr Visser’s report, when the Applicant was asked how he felt about his behaviour, he replied:
“I feel absolutely devastated, I hate myself for reacting in such a manner. There were things happening in my life, my dad was paralysed in hospital waiting to die. I thought I loved a woman who was pregnant with my child and had gotten with someone else, combined with the use of drugs. It triggered me to act, I wouldn’t have normally reacted in that way…I can’t change things, but I can demonstrate that I am rehabilitated. The possibility of me re-offending a (sic) low. To me the reasons to re-offend are much less.”[93]
[93] Exhibit G1: G27, page 258.
According to Mr Visser, there are several ways to assess general recidivism risk, and the most comprehensive guide in the Australian context was published by the Australian Institute of Criminology (AIC). The AIC report highlights three key dimensions that are correlated to risk of reoffence, which is condensation of the “Central Eight” risk factors. The use of the central eight has been internationally supported in the literature, including in one of the largest meta-analyses recently conducted, looking at risk predictors in a sample size of 116,982 of adult offenders. Ms Visser described his analysis as a combination of both the international and Australian risk frameworks.
The first risk category from the AIC is previous criminal involvement, which also relates to antisocial attitudes and cognitions. Criminal history, in combination with a history of antisocial behaviour/attitudes, has been shown to be the strongest predictor of future offending behaviour. This category has three key dimensions, being criminal history, including age of first offence, number and type of previous offences, and previous contact with the criminal justice system.
According to the AIC, the Applicant’s offence history suggested that the highest likelihood of reoffending was through the use of drugs. It also suggested the possibility of violence, which in some ways is related to his drug use as he has suggested, although Mr Visser noted that his history of violence predated his use of methamphetamines. It is important to note here that the Applicant was using alcohol and cannabis before he started using methamphetamine, and the violent offending does not predate his use of those substances. However, he committed some violent offences when not under the influence of any substance. So Mr Visser’s recognition that some violent offending was not related to substance use is accurate.
Mr Visser opined that there was a suggestion of a moderate degree of antisocial attitudes, and the Applicant’s history showed a willingness to act in an aggressive or violent manner to achieve an outcome, particularly when intoxicated. A degree of minimisation/positive impression management was also evident in his discussion of his criminal history and in psychometric testing. For example, the Applicant initially commented that all of his offending behaviour was related to his use of methamphetamine, and that there were no violent offences in his past with the exception of the most recent offence. When Mr Visser pointed out several charges pre-dating his use of methamphetamine, the Applicant said that he could not remember, and that they were probably related to minor disagreements with housemates. Similarly, Mr Visser observed that his comments on the most recent offences were substantially different to the description given in the judgments. Importantly, Mr Visser said:
“Despite saying that he took ‘full responsibility’ for his crimes, there was little suggestion of him doing so when speaking about his offences. For example, the issues he experienced through both relationships, and the breaches of the [DVOs] were primarily due to his partners’ mental health by his account. His discussion of the outcomes of his most recent charges also focussed heavily on the outcomes for him, demonstrating primarily regret (impact on self) rather than remorse (impacts of his behaviour on the victims).”[94]
[94] Exhibit G1: G27, page 259.
Both of those tendencies – to deflect blame and to focus more on the impact to himself – were apparent in the evidence the Applicant gave in the hearing. I have already mentioned some evidence relating to the former. With respect to the latter, I have found that he regretted pleading guilty to the charges relating to Ms K, and it was noticeable that he generally had to be prompted to acknowledge the impacts of his offending beyond the consequences to himself and his family. For example, he gave evidence that he is “extremely remorseful for the full extent of my criminal history. It is pathetic and disgusting…”.[95] He was then asked what had made him come to that view. He replied:
“I’ve had almost – close to two and a half year years to reflect on my criminal history and the impact, obviously, it’s had on me, my family, my extended family. I’m just ashamed and embarrassed of having had a privileged upbringing and a privileged education, I’m very ashamed at my conduct”.[96]
(Emphasis added)
[95] Transcript, page 6, lines 45 to 46.
[96] Transcript, page 7, lines 8 to 13.
He was then asked:
“You’ve spoken about the impact on your and your extended family…is there any other impact that you want to talk about?”.

He replied “Yes, absolutely, the victims of my behaviours, extremely remorseful, there’s no denying that at all”.[97]
[97] Ibid, lines 13 to 18.
Later in his evidence, he was asked “Do you yourself understand the seriousness of family violence in Australia?” to which he said he was “Very clearly aware of that, having just been on the severe consequences of my family violence, domestic violence behaviours”. When asked “Putting to one side the severe consequences for yourself…Do you understand the seriousness of family violence and what impact it has on the Australian community?”, he said:
“Absolutely, I’ve put myself – lying awake in bed at night, you know, I’ve put myself in the shoes of Ms [K], and Ms [N], and how it would have impacted them, and how it would have impacted me if I were in their shoes, if someone had done this to me”.[98]
[98] Transcript, page 12, lines 9 to 12.
The same tendency is apparent in other evidence, for example an IHMS case note dated 13 January 2023 recorded the Applicant saying “…the terrible error in judgement I made that has brought me to this place. One mistake I made and it has destroyed my life”.[99] This statement also shows lack of insight into the fact that it was not just one transgression that resulted in his imprisonment and visa cancellation. Another example is found in a letter from Lives Lived Well (a rehabilitation service), dated 23 September 2023, which referred to some appointments the Applicant had attended and said “Ashley provided context and reflected on the legal ramifications of his substance use.”[100] (Emphasis added) These documents were put forward by the Applicant.
[99] Exhibit A2: pages 64 to 65.
[100] Exhibit A5, page 1.
The second category under the AIC is lifestyle and demographic factors, which are a moderate predictor of increased risk. Mr Visser noted that being older is correlated with decreased risk, while employment in the Applicant’s case is a mixed factor, as he has had periods of gainful employment, and he has some capacity to return to work. However, Mr Visser pointed out that he had no substantial recent employment, and even pre-dating his use of methamphetamines his history was generally of casual and short-term employment of periods less than 18 months. Mr Visser noted that family relationships reduce the risk of re-offending and he accepted that the Applicant has at least some family support through his uncle, sister, and mother. However, he said the reports from the latter two are mixed, referring to clinical notes from Dr Jillian Spencer of IHMS dated 24 February 2023 that say “mother and sister haven’t visited, they have a strained relationship. No contact lately.”
I would add that the same record noted that the Applicant “talks to his uncle” and that the Applicant’s “mother and sister no longer contact him. They started pulling away when he went to jail. Feels really let down and abandoned by this”.[101] In the hearing, when the Applicant was asked if his relationship with his mother was strained to the point that she did not want to talk to him earlier in the year, he said:
“No. We’ve always remained in contact. It was strained for a little but then, you know, there’s little things. All families have these issues. And the fact that I have been incarcerated for this long, you know, but she has never left my side. She always has and always will support me. And so will I. These little thing happen sometimes in one or two weeks. There was a bit – it was a bit strained. I think I mentioned that to Dr Jillian, the psychiatrist there, when she assessed me at one point. But then things got back to normal again and everything is normal.”[102]
[101] Exhibit G1: G35, page 411.
[102] Transcript, page 57, lines 22 to 35.
He then said that lasted between one and two weeks, and it was about him being in detention and little disagreements about what he should do legally, whether he should see a psychologist, what his family could do for him and what he could do for them.[103] The Applicant’s characterisation of small disagreements leading to things being strained for one to two weeks is at odds with the contemporaneous file note. This is the second documented period of estrangement between the Applicant and his immediate family, and he sought to downplay both. Plus, there is Dr Prasad’s evidence that he had to tell the Applicant that his mother did not want him to attend his father’s funeral (which took place in October 2021 when the Applicant was in prison).
[103] Ibid, lines 36 to 45.
Relevant to lifestyle and demographic factors, Mr Visser observed that the Applicant’s mental health as a factor suggested a relatively low risk of recidivism. While he meets the criteria for Major Depressive Disorder, that condition is only mildly associated with recidivism risk, has been treated to some extent, and can be treated further to reduce the risk. Similarly, he said reports of his good behaviour while incarcerated were a positive indicator. He noted that the Applicant’s history of drug use is substantial, and is of a type (intravenous use of methamphetamines) that is correlated with greater risk of reoffending. He acknowledged the Applicant’s efforts to pursue significant support and training around his drug use, and his abstinence for two years in a controlled environment, as factors that reduce this risk factor. However, despite these reductions, the risk of relapse into drug use remained a possibility, and were he to do that, his risk of offending would be high. Overall, his lifestyle and demographic factors suggested a moderate risk of reoffending.
The third category under the AIC is post-release factors which can influence recidivism risk. Mr Visser considered the Applicant’s post-release plan – to spend time supporting his mother, take up an offer of paid work, and become involved with his church – to be moderately well thought out. He acknowledged that the Applicant was willing and able to seek support where necessary and attend a residential rehabilitation program to transition to sobriety. These factors, if the Applicant were to stick to them, would suggest a low risk of reoffending, whereas the risk would be moderate were he to move straight to the community.
Mr Visser concluded that collectively the Applicant’s risk of recidivism was moderate to high and would be reduced to moderate should the specific treatment plan after release be followed.
Mr Visser’s report was commissioned by the Applicant, however, he claimed that Mr Visser’s risk assessment was not accurate because it did not take into account the additional rehabilitation undertaken since the report and it:
“did not consider the full panacea of considerations relevant to the question of risk. E.g. the shock of being placed in immigration detention and the massive deterrent effect of future visa cancellation were not taken into account.”[104]
[104] Exhibit A3, page 1.
Among the material provided to Mr Visser for the purpose of his assessment was a statement by the Applicant that set out at length his reasons for believing that being deported to Fiji would be detrimental to him, concluding with:
“…I would suffer very serious depression and mental health issues if deported. I would be heartbroken to be permanently excluded from Australia. I would miss all my family in Australia. I would suffer lifelong sadness, waking up daily and realising I could never return to Australia.… given all of the preceding, there is a real prospect I would be homeless if removed to Fiji. I would have no access to social welfare. My prospects of finding employment are very limited on account of criminal record in Australia, my mental health issues, lack of practical social ties, status as an ‘Australian deportee’, lack of accommodation and poor healthcare services in Fiji.”[105]
[105] Exhibit G1: G14.
Additionally, the Applicant told Mr Visser:
“I will lose everything, all my family, all my connections. I would go back to a country that I haven’t been to in 32 years. There is no one there, everyone is here. I have no network there, [and] I would have no job.”[106]
[106] Exhibit G1: G27, page 251.
Mr Visser was well aware of how much the Applicant wanted to avoid deportation and he knew he was in immigration detention. His report does not indicate that these matters are among the reliable predictors of a person’s risk of recidivism. He could have been asked about that had the Applicant obtained an addendum report or called him to give evidence, however he did not do either. He also could have been asked whether the additional rehabilitative activity he undertook after the report made any difference. The Respondent did not take issue with Mr Visser’s risk assessment.
As stated above, Mr Visser took into account some support from the Applicant’s family. Several members of the Applicant’s family made statements in which they described him as a good person. For example, Mrs Ahmed, his aunt, described him as “inherently of good character”.[107] A different aunt referred to the Applicant being well liked and respected by many friends and work mates, although it turned out that she was referring to a time in the 1990s when she visited him at work.[108]
[107] Exhibit G1: G19, page 160.
[108] Transcript, page 138, line 30 to page 139, line 1.
Dr Prasad, had recently been given a copy of the Applicant’s criminal history. He said he asked the Applicant about it on many occasions, and later said they had some conversations about the Applicant’s plan for having a meaningful existence in Australia.[109]
[109] Transcript, page 102, lines 35 to 40; page 106, lines 25 to 33.
Dr Prasad described the domestic violence offences as “non‑serious” because the Applicant was “at the wrong place at the wrong time”. He understood that the Applicant was, at that time, in relationship with a woman who was a drug addict who would:
“at all times of the day and night, call and cry and plead (sic) him to come over with food with food and things like that, and Ashley being Ashley, disregarded completely the orders that precluded him from visiting her, would go and visit her. That was his explanation and I have no reason to doubt that.”[110]
[110] Transcript, page 102, lines 44 to 48; page 106, lines 5 to 14.
Dr Prasad said the Applicant either had very vague memories of the assaults or he was under the influence of liquor or substances.[111] He was of the view that the Applicant had been full and frank about his criminal history.[112] However, he was not aware of any actual violence against any women. Nor was he previously aware that the Applicant has used drugs.[113] It appears that the Applicant hid his drug use and criminal offending from his uncle. Further, it appears that he was not honest with him in recent discussions about his criminal history, engaging in some victim blaming and glossing over his violent offending.
[111] Transcript, page 103, lines 42 to 48.
[112] Transcript, page 107, lines 5 to 9.
[113] Transcript, page 106, lines 15 to 18; page 107, lines 45 to 46.
Dr Prasad said he is not the Applicant’s “keeper”.[114] When it was put to him that in order to properly address a problem one has to know what the problem is, he said “He knows what the problem is. I don’t have to know what the problem is to the extent that he knows”.[115]
[114] Transcript, page 106, lines 27.
[115] Transcript, page 106, lines 35 to 39.
The Applicant’s mother and sister said they were unaware of the Applicant drug use and offending until very recently when a copy of his criminal history was provided for the purpose of this application. His mother described herself as “amazed” and “just stunned”.[116] His sister was asked if she knew the details of the more recent assaults, and she said “I know the details that Dr Donnelly sent me, what he sent me, yes”.[117]
[116] Transcript, page 122, lines 22 to 23.
[117] Transcript, page 138, lines 1 to 5.
This evidence does not sit comfortably with the evidence in District Court sentencing remarks that the Applicant’s mother and sister were in court when the Applicant was sentenced for his attack on Ms K and the threatening messages he sent to Ms N. The irresistible inference is that they were in court, not by coincidence, but because the Applicant was being sentenced. The learned Judge described the offending. They each have a good command of English. I find it extremely unlikely that they were unaware of what he was being sentenced for in August 2022. Therefore I find that they were not completely honest in their evidence, which undermines the credibility of their evidence in general.
I am satisfied that the Applicant’s mother and sister were ignorant of the Applicant’s criminal activity for the vast majority of the period of offending, which is consistent with evidence that he gave. I accept that none of the Applicant’s other family members knew about his offending and drug use until they were told in the course of these proceedings.
The Applicant’s family members each expressed the view that he had changed for the better. However, they do not have a reliable frame of reference because during the period when he was offending, he concealed a large part of himself from them. The Applicant’s sister said he is “reeling from the impact of where he finds himself”, is ashamed and extremely repentant.[118]
[118] Exhibit A1, page 26.
The Applicant identified his mother and sister as prosocial factors. None of the Applicant’s family members said they would help him in his rehabilitation, although Dr Prasad pledged his general support and his mother and sister indicated that they want him in their lives. His mother and sister were in reasonably frequent contact with the Applicant when he was offending. He used to visit his mother for a meal and sometimes stay the night two or three times per month, and they had some telephone contact. In the last three years of offending, the Applicant’s sister saw him once or twice per month. Yet for many years they did not know about his drug using lifestyle and offending. I see no reason why the Applicant could not hide drug taking and offending from them again, or why they could exert any real influence on his behaviour.
The Applicant’s mother and sister both referred to what could loosely be described as the Applicant’s bad temper. His mother said little things would “flare him up”.[119] His sister said when she saw him in the period 2018 to 2021 she noticed that he was “very temperamental”, “very quick to get angry” and she put it down to his personality.[120] She thought he had some anger management issues, and a few times she advised him to go to anger management classes. When asked how long this had been part of the Applicant’s personality, she said since he had been in Australia, and that she was not around him in Fiji or Papua New Guinea. She said “that’s just his personality, as far as I understand it, yes”. She added that the Applicant does not lose his temper badly.[121]
[119] Transcript, page 122, lines 10 to 14.
[120] Transcript, page 132, line 46 to page 133, line 3.
[121] Transcript, page 137, lines 28 to 48.
The Applicant’s evidence was re-opened so he could address the evidence about his temper. He said when he is clear headed he does not have anger issues. When asked “…you would disagree with your sister that you’ve had – that it’s part of your personality that you tend to anger quite quickly?” he said “I would say, it’s part of everyone’s personality” and indicated that what matters is how a person deals with it.[122] While there is merit in the second part of the Applicant’s answer, his failure to identify that his tendency to anger quickly is aberrant shows lack of insight.
[122] Transcript, page 153, lines 43 to 46.
The Applicant has also repeatedly failed to recognise the risk he poses to the community. Shortly after his parole was revoked, he asked the parole board to re-instate it even though only days before, he had attacked Ms K in breach of a DVO, he had sent nasty messages to Ms N in breach of a DVO and nothing had substantially changed in his circumstances or his respective relationships with each woman. Specifically, while he had not taken drugs for a few days, he still believed Ms N was pregnant with his child and in a relationship with someone else. Some months later, he later applied for bail having done only very limited rehabilitative activity. In October 2022, he told the department “I strongly believe the risk to be negligible or no risk” and “There is just no chance of the likelihood or even the slightest possibility that I will engage in further criminal activity.”[123] However, seven months later, in May 2023, Mr Visser assessed a moderate to high risk. Four months after that, the Applicant maintained in the hearing of this matter that the risk of re-offending was “non-existent” because of what he had been through in prison and detention, and he said that in legal terms this is referred to as “low risk”. [124] When asked about this statement, given Mr Visser’s assessment, the Applicant conceded that there was a possibility of further drug offences but he maintained that:
“due to taking considerable course work and taking steps to rehabilitate myself that has changed drastically. I’m not the person that I was over two and a half years ago”.[125]
[123] Exhibit G1: G12, page 117.
[124] Transcript, page 53, lines 12 to 18.
[125] Transcript, page 54, lines 20 to 26.
Despite the courses and counselling the Applicant has done, he does not seem to have achieved much in the way of insight into his behaviour or preparedness to hold himself fully accountable for his offending. All the supports that the Applicant has arranged in the community will not do any good unless he chooses to meaningfully engage with them. Even if he does, according to Mr Visser the risk of re-offending would be moderate. Considering all of the evidence, I see no reason to doubt the accuracy and currency of Mr Visser’s risk assessment. I accept that there is presently a high risk of re-offending which would become a moderate risk if the Applicant engages in the recommended rehabilitative treatment. Given the harm from further violent offending of the kind he has previously perpetrated, even a moderate risk is an unacceptable risk. A moderate or high risk of further traffic offences of the kind he has previously committed is also a serious concern.
Primary Consideration 1 weighs very heavily against revocation of the cancellation of the Applicant’s visa.
FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
I am not only to consider family violence that is the subject of a conviction. I am to consider information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, where the non-citizen has been afforded procedural fairness.
The Direction provides that in 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.

When asked if he was aware of what the culture is like in Fiji, he said:
“I’m not so much aware because I’ve been removed from Fiji for such a long time. I don’t know what’s going on there, what takes place, what people do, how it’s changed a lot, you know, I was there when I was 16 years old”.
He ultimately agreed with the propositions that he thinks the culture will be unfamiliar and he is worried that it will be different in ways that he does not like.[162] The Applicant previously adjusted to a new culture when he moved from Fiji to Australia as a student. He told Mr Visser that it “took some getting used to” and he found elements of the language and culture initially quite challenging.[163] However, he now regards himself as Australian.
[162] Transcript, pages 18 and 19.
[163] Exhibit G1: G27.
The Applicant’s aunt, Mrs Lal, and her husband are frequent travellers to Fiji. Her husband was there for a work re-union when she gave her evidence, and she had last visited there with her husband in July 2023. She said they love Fiji because they were born and brought up there. When asked about any difference in the life or culture there, she pointed to lack of jobs, poor education and people using drugs.[164] These are not so much cultural issues but the lack of jobs and drug use are nevertheless relevant to this Other Consideration. I am not satisfied that the Applicant would face substantial cultural barriers in Fiji.
[164] Transcript, pages 146 to 147.
The Applicant claims he has no family in Fiji and knows no-one. His mother has relatives there but I accept that the Applicant does not have any relationship with them. Mrs Lal said she and her husband would visit the Applicant when they visit Fiji,[165] and there is a possibility that his sister would visit. However, I accept that he would not have any family or social support when he arrives to assist him to establish himself in Fiji.
[165] Transcript, page 147, lines 20 to 23.
The Applicant expressed worry that, in Fiji, he would have:
“no assets, money, identification cards, passport, accommodation, bank account, transport, no relatives, or friends to pick me up from the airport on landing in Fiji. No one to call/contact and nowhere to go”.[166]
[166] Exhibit G1: G13, page 129.
He indicated that without money, he would not have access to electronic means to communicate with his family in Australia. He also claimed that he will not be able to be get the mental health and rehabilitation support he needs.
I accept that the Applicant does not have any assets in Fiji and he would bring limited money with him. He does not have accommodation or a car in Fiji. Nor would he be entitled to government income support, although there is some assistance available to the very poor.[167] He would need money to be able to contact people in Australia. The Applicant is Christian so there is a realistic possibility that he could access the social support of a church congregations and relevant outreach programs which are typically free.
[167] Exhibit G1: G37(b)
The Applicant claimed that the fact of his deportation on character grounds and his Australian criminal record would make it hard to secure employment in Fiji. When he made that assertion in oral evidence, the Tribunal sought clarification and the following exchange ensued:
TRIBUNAL: Now how will anyone know that you’re a deportee, how will people know that about you?
APPLICANT: That will be my status once I arrive in Fiji.
TRIBUNAL: Is anyone going to announce your status when you arrive there, or are you going to tell people?
APPLICANT: I mean, the Minister isn’t seriously considering that I should conceal my criminal history in Australia and the fact that I was deported?
TRIBUNAL: No, not criminal history. So obviously, I assume that it’s a similar system here, where you apply for a job, if your employer is concerned about whether you have a criminal history, they get you to sign a consent form so they can then check with the authorities. But are you suggesting that the fact that your visa was cancelled here would show upon some sort of criminal history check in Fiji?
APPLICANT: I would assume that to be the case there, yes.
TRIBUNAL: Do you think that a visa cancellation is the same as a criminal conviction?
APPLICANT: No, but due to my criminal convictions is why my visa was getting cancelled.
TRIBUNAL: But how would employers in Fiji become aware that your visa was cancelled?
APPLICANT: I suppose I would have to declare it in some way shape or form.
TRIBUNAL:     Why would you have to declare?
APPLICANT: I don’t know because I haven’t lived in Fiji for so long, I don’t know how it all works - - -
TRIBUNAL:     So this is just a, sort of, speculative worry that you have?
APPLICANT: Including that I – I don’t have an employment history in Fiji and - - -
TRIBUNAL: Well that’s a different topic, but I wanted to clarify why you thought that people would know about the fact that your visa had been cancelled and the reasons for it. But it seems like from what you’re telling me, that you’re speculating that that might happen?
APPLICANT: Well I’ve got reason, I guess, to believe that that would be the case, I mean - - -
TRIBUNAL: What’s the reason?
APPLICANT: How can I hide the fact that I’m not deportee, you know, or - - -
TRIBUNAL: You’re flipping it around, I’m asking you…How people would come to know that?
APPLICANT: If I declare it.
TRIBUNAL:     Why would you declare it?
APPLICANT: If I’m required to declare it, I’ll have to declare it on an employment form or – to the employer.
TRIBUNAL: Okay, have you ever seen an employment form that asks for immigration status?
APPLICANT: No, I haven’t seen that.
Examination in chief resumed as follows:
DR DONNELLY: …do you have a resume or CV?
APPLICANT: No, I don’t know.
DR DONNELLY: Do you think you would have to explain what you’ve been doing over the last few years to a respective employer in Fiji?
APPLICANT: Yes, I believe I would.
…
DR DONNELLY: All right, you’ve been in prison and detention over the last two years, all right, so you’re not going to be able to explain the employment history of the last few years. And if someone asked you, what are you doing back in Fiji after being in Australia for such a substantive period, what would you say?
APPLICANT: I would have to say I’ve been deported from Australia.[168]
[168] Transcript, page 15, line 34 to page 17, line 25.
First, I do not necessarily accept that the Applicant would reveal to a prospective employer or anyone in Fiji the reason for, or even existence of, the most recent gap in his employment, or that he was forced to return to Fiji. That is because the evidence before me demonstrates that he is not a compulsively honest person. Indeed, with respect to employment, the brief history he gave in his revocation request did not reveal the long periods of unemployment he later disclosed to Mr Visser. Second, even if the Applicant were to provide an accurate employment history, the most recent gap would hardly stand out in the context of the other gaps. Even a person who is trying to be a good, upstanding citizen can point to reasons such as personal issues (which the Applicant said impacted him over the years) to explain interruptions in employment and relocation. However, I accept that if the Applicant were to apply for a job that required a criminal history check, he would have to withdraw his application or consent to his criminal history being revealed which would likely preclude him from the job. This is less likely to occur in the informal sector. While there was no independent evidence of this, I accept that the Applicant’s criminal history would almost certainly preclude him from working in airports, due to the level of security airports are generally required to maintain, which means his aviation credentials and experience would be of limited to no assistance to him in Fiji.
I accept that there is a lot of unemployment in Fiji and wages are generally low. According to the DFAT report, most Fijians work in the informal sector, especially in tourism, agriculture and aquaculture. The Applicant is well educated, has worked in various different occupations. He is reasonably able bodied, and he has some experience fishing and crabbing for leisure which might help him to sustain himself or get work.[169] He is an articulate person who has demonstrated in these proceedings that he is prepared to advocate for himself. He made at least one loyal friend in immigration detention and he was able to influence some detainees to engage in rehabilitation courses. His interpersonal skills can only assist him to forge connections and make a living in Fiji. I am satisfied that he has reasonable prospects of supporting himself there.
[169] Transcript, page 37, lines 9 to 13; lines 40 to 45.
The Applicant’s sister is employed full-time and she lives with her mother. She is financially assisting her adult daughter (who is having some difficulties) and she said she helps her mother financially. She currently gives the Applicant between $50 to $100 per month. She thinks she could send him a few hundred dollars here or there in Fiji. His uncle thought the extended family might be able to send money for Christmas gifts and the like but nothing regular. This seems unusual given Dr Prasad’s description of a large extended family replete with professionals including doctors (see below) who were concerned enough to hold a prayer session. I do not think financial assistance would be limited to Christmas gifts. I would not go so far as to find that his family/relatives would financially support him in Fiji.
The Applicant claimed to have physical aches and pains and a cyst at the back of his knee that has not been treated completely. He fears that further drug use will accelerate his condition, make it much worse, and cause permanent damage, although there is no medical to support that. In August 2023, he needed orthotics to alleviate foot pain and he was waiting on approval.[170] I am not satisfied that the Applicant has any physical health conditions that do, or would, substantially impair him in his day to day life. Further, according to the DFAT report, in Fiji healthcare is generally available for those who need it, with the quality being better in urban areas. Specialist healthcare is generally available in large hospitals. Healthcare is free, however some facilities are old and not well-maintained, and staff-to-patient ratios can be poor.
[170] Exhibit A2, page 9.
The Applicant claimed that deportation would destroy his life and the separation from his family and child would impact on his ability to cope, causing him to suffer mental anguish isolation and heartbreak.[171]
[171] Exhibit G1: G15, pages 142 and 146.
I accept that deportation to Fiji will have a significant emotional impact on the Applicant as he will have to leave his life in Australia and he will be physically separated from those closest to him and a baby who he believes is his biological child.
The Applicant claimed his mental health would be an impediment if he is removed to Fiji. I will address his claims about suicide in more detail separately.
An IHMS record, dated 13 January 2023, made by a psychiatrist, Dr Spencer, contained a diagnosis of adjustment disorder. Her notes recorded the Applicant saying his life had been destroyed, and he felt abandoned by his mother and sister. It was noted that he did not have any suicidal thoughts.
A record dated 24 February 2023 by Dr Spencer, noted that the Applicant denied current or historical mental health related issues or previous self-harm or suicide attempts. The impression recorded was:
“mild anxiety and depressive symptoms related to his situation of being in detention and being estranged from his family and child and fear of being repatriated. No psychotic symptoms. Low risk of self-harm/suicide.”[172]
[172] Exhibit G1: G35, page 389.
The file note recorded a low mood that had started in prison, and quoted the Applicant saying “I’ve done my time and I’m still in jail basically, it has a huge impact on my mental wellbeing” and that he was constantly thinking and worrying about his visa. He had asked to be referred to a psychologist.[173]
[173] Ibid.
On 5 April 2023, the IHMS provided a report based on five sessions the Applicant had engaged in with a psychologist, Mr Hutcheon, since 23 January 2023.[174] The report noted that the Applicant had experienced difficulty sleeping and a low mood that started in prison, and that he constantly ruminated about the future. It said the neurovegetative disturbance and rumination symptoms appeared to resolve over the course of treatment. The Applicant’s diagnosis was changed to “adjustment disorder in remission”. It should be noted that during this period, as well as proactively engaging in counselling, the Applicant was also proactively engaging with rehabilitation services and doing online rehabilitation courses. This, to my mind, indicates that his mental health was not impeding his ability to engage in productive activities.
[174] Exhibit G1: G26, pages 231 to 236.
In May 2023, Mr Visser opined that Major Depressive Disorder recurrent with mild symptoms was a “better fit” than adjustment disorder. He explained that the fundamental difference between Major Depressive Disorder and an Adjustment Disorder is that an Adjustment Disorder is an abnormal reaction to a specific stressful situation, whereas Major Depressive Disorder suggests a previously existent condition. The Applicant had indicated that he had periodically experienced low mood, and that the experience fluctuated and was typically exacerbated through situational factors. He said his mood had not been good since entering detention. I accept Mr Visser’s more recent diagnosis that is based on a comprehensive assessment. This was the diagnosis adopted by the Applicant in these proceedings.
After administering a self-evaluation tool, Mr Visser concluded that the Applicant is normally a confident and optimistic person who approaches life with a clear sense of purpose and distinct convictions. He said these characteristics are valuable in that they allow him to be resilient and adaptive in the face of most stressors.
Mr Visser opined that if the Applicant is deported he would expect a negative impact on his mental health, and in particular his risk of relapse into drug use, and then there is a “high risk of harm, both to himself and the community”. Mr Visser did not indicate that the risk of harm to the Applicant was a risk of self-harm, and I do not infer that meaning from the context. Nor did Mr Visser mention any talk by the Applicant of suicide or any risk, in his opinion, of suicide. Mr Visser recommended further sessions with a psychologist to assist the Applicant to deal with any underlying issues to treat his depression.
I am satisfied that the Applicant has a mental health condition, being Major Depressive Disorder with mild symptoms. I accept that, while the Applicant has characteristics that allow him to be resilient and adaptive, deportation would likely have a negative impact on his mental health which would generally reduce the quality of his life. I am not satisfied that these impacts would significantly impede his ability to survive in Fiji.
The DFAT report indicates that mental health care is not always available to those who need it in Fiji, and there is a stigma around mental health. Some support is available from nursing stations, health centres, general practitioners and hospitals, and there is a public psychiatric hospital (St Giles) in the capital, but there is an inadequate number of mental health professionals to meet demand. Online resources from Australia and New Zealand might be used by Fijians. Drug and alcohol services are also available at St Giles, however it is underfunded, and the facilities and treatment are basic, and medication might be unavailable. There is an increasing number of counsellors (who are not psychologists or psychiatrists) and some non-government organisations provide counselling services. I accept that if the Applicant needs mental health or substance abuse treatment, he will have difficulty accessing adequate care in Fiji.[175]
[175] Exhibit G1: G37(b)
In Dr Prasad’s evidence, in response to a question about whether he could use his expertise as a clinical psychologist to assist the Applicant with his mental health, he said he could have general conversations if the Applicant were here. He added that there is a symbiotic relationship between physical and mental health and that there are good doctors here who are very close relatives as well as a couple of scientists in Brisbane “So we’ve got quite a credible array of family and relatives here in Australia who will come to the party to assist him”. When pressed about whether he could assist the Applicant if he was in Fiji, he indicated that he and other family members would be willing to provide some sort of therapeutic assistance whether the Applicant is in Australia or not.[176]
[176] Transcript, page 110, line 10 to page 111, line 2.
Accordingly, the Applicant will likely have some emotional and psychological support from his uncle and possibly other extended family members. Dr Prasad is committed to supporting the Applicant and if he can contact the Applicant in Fiji, he will keep in touch, in his words, “Like we keep in touch with all our relatives throughout the world”.[177] He said he will have conversations with the Applicant, including about his mental illness, and the relatives will “do our best to assist Ash as we popularly call him”.[178]
[177] Transcript, page 109, lines 34 to 40.
[178] Transcript, page 110, lines 45 to 47.
It was contended on the Applicant’s behalf that suicide is a real prospect if he is deported. The Respondent contended that there is no medical evidence to that effect. In May 2023, Mr Visser was specifically asked about the impact on the Applicant’s mental health if he is deported. He predicted a negative impact but did not predict a suicide risk. The Applicant has been engaged with the IHMS providers in immigration detention regarding his physical and mental health, pharmaceutical needs and rehabilitation since January 2023. The most recent IHMS record in evidence is dated 11 September 2023. There is no mention by any treating nurse, doctor, psychologist, counsellor or psychiatrist of a significant deterioration in the Applicant’s mental health, talk of suicide, suicidal ideation or a risk of suicide should the Applicant be deported.
In a supplementary statement made by the Applicant on 23 September 2023 he said:
“I will need significant ongoing mental health if deported. I believe I would be suicidal and suffer lifelong emotional, financial and practical hardship in Fiji.”
(Emphasis added)
and
“I would suffer lifelong emotional hardship in Fiji. I am concerned that without adequate mental health support, I would commit suicide in Fiji”. [179]
(Emphasis added)
[179] Exhibit A3, pages 7 and 9.
In the hearing on 27 September 2023, the Applicant expanded on that but expressed the suicide risk as “may” rather than “would” as follows:
“I will suffer lifelong heartbreak, emotional lifelong emotional harm being separated my mother, sister and niece and extended family members in Australia, all my connections and contacts that I’ve – for the past over 26 years. Everything that holds any value or meaning in my life, that gives me a purpose, and motivation to go on, will be severed permanently if I’m deported. And as a result, my emotional disposition could lead to suicide, I’m seriously scared that I may become suicidal, taking me away from my family and friends when I need them most”.
(Emphasis added)
and:
“just separated from my family, my mental and physical wellbeing, I’m scared that I might commit suicide, I can never come back to Australia again. I’m scared I might go back to using drugs again”.[180]
(Emphasis added)
[180] Transcript, page 18, lines 25 to 29

In the hearing, the Applicant’s sister said he started talking about suicide around two weeks previously, but she was unable to explain the apparent sharp decline in the Applicant’s outlook except to speculate that that detention was getting too much for him.
Further, suicidal ideation, in the event that the Applicant is deported, is not consistent with the way he has previously reacted to deeply distressing circumstances. For example, the Applicant gave evidence that at the time of his most recent offending, he was very depressed due to years of drug use, his father being paralysed after suffering a stroke and the mother of his child (he believed) being with another man. However, even in those circumstances, there is no evidence that he felt suicidal. The IHMS notes in January and February 2023 recorded that the Applicant felt that his life was destroyed and he was preoccupied with his visa having been cancelled, yet there was no indication of a suicidal risk then. Mr Visser identified characteristics in the Applicant that support resilience and adaptability.
The evidence of a suicide risk consists of bare assertions by the Applicant and by his sister based on what he told her. It is readily apparent that the Applicant is prone to speculation and exaggeration, and I think his representations on this issue are examples of that. I am not satisfied on the evidence before me that the Applicant would be at risk of suicide if deported.
I accept that if the Applicant is deported, he will feel devastated and I take that into account. Further, it will likely cause his mild Major Depressive Disorder symptoms to increase in severity. I accept there is a risk of relapse to drug use which is greater if his mental health deteriorates. A relapse would likely make it harder for him to obtain and maintain work (although he has worked while using drugs before) and therefore to afford the basic necessities including accommodation and the means to keep in touch with family. Drug use may also impact his health.
The Applicant will experience a lower standard of living in Fiji, primarily because he will not be entitled to government income support or have ready access to an adequate standard of care for his mental health. These are conditions that apply to the general population. The Applicant is well educated, and he has some prospects of earning a living. He will have some financial assistance from family, but not a lot. His lack of family and social support is something not faced by the general population, and this will make it harder for him to establish himself and maintain basis living standards in the context of what is generally available in Fiji. I am not satisfied that the difficulties identified would be insurmountable.
Overall, I allocate significant weight to his Other Consideration in favour of revocation.
SOME OTHER MATTERS
The Applicant’s temper
The Applicant’s counsel contended that the Applicant’s tendency to become angry quickly or over small things – which his family indicated was part of his personality – was a health issue that constituted an impediment under Other Consideration (b). His reasoning was that the Applicant requires rehabilitation for his anger issues and that the definition of rehabilitation is “the action of restoring someone to health or normal life through their training and therapy after imprisonment, addiction or illness.” This is tautologous, and there was no evidence at all that this facet of his personality is in any way related to his health. I reject the submission.
The use of the word “privilege” in the Direction
The Direction refers to the privilege of being allowed to enter or remain in Australia in Primary Considerations 1 and 2 and in the guiding principles in paragraph 5.2 which inform those Considerations and Primary Consideration 5. The Applicant contended that the use of the expression “privilege” should not be taken into account by the Tribunal, relying on a statement in obiter dictum by Griffiths J in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 (“Stretton”). I reject that submission for the reasons that follow.
First, the Direction post-dates Stretton and it is binding on the Tribunal by virtue of s499 of the Act as far as it is not inconsistent with the statutory regime. No inconsistency was alleged and none is apparent. Second, it is not apparent what material difference it would make to the outcome of this application if the word “privilege” were not taken into account by the Tribunal. None was identified. Third, the Applicant himself said, in his revocation request, “I am completely aware that remaining in Australia is a privilege not a right” which tends to diminish the force of the submission.[181]
[181] Exhibit G1: G15, page 148.
Finally, the passage in Stretton relied on by the Applicant, is this:
“In particular, without doubting the relevance to the exercise of that power of protecting the Australian community, it is important that the value of the statement of reasons is not diminished by resort to superficial aphorisms or empty rhetoric, which is illustrated by phrases such as “expectations of the Australian community” and the “privilege” of being a visa-holder...The latter expression is simply misleading as a legal concept. Under Australian law, having the status of a visa holder is not a privilege. Visa-holders hold statutory and non-statutory rights which are inconsistent with the notion of their status being described simply as a “privilege”. For example, many visa-holders have statutory rights of review and all visa-holders have rights relating to judicial review of adverse migration decisions. The statutory rights of a visa-holder are, of course, subject to the lawful exercise of executive powers such as those under s 501. But that fact does not justify the position of a visa-holder under Australian law being described as merely one of “privilege” in a legal sense.”[182]
[182] Minister for Immigration and Border Protection v Stretton, [2016] FCAFC 11 (2016) per Griffiths J [70]
The plurality did not engage with this point. I do not think there is a conflict between the point made by His Honour and the Direction. Direction 99 is drafted in plain English, and I do not take the word privilege as it appears in the Direction to refer to a privilege in a legal sense. Rather, I take it to mean that the government considers it to be a privilege, in the ordinary sense of the word, for a non-citizen to be allowed to enter or remain in Australia. The mechanism that confers that privilege is a visa, which is only available to a non-citizens who satisfies criteria set by the government (in legislation and policy), and the visa confers certain rights on the holder.
Procedural fairness
I formed the opinion that the Applicant’s mother and sister were not completely honest about their knowledge of the Applicant’s offending, and that their behaviour indicated that they were not seriously concerned that he could commit suicide here or in Fiji.
On 6 October 2023, the Tribunal sent an email to the Applicant (copied to the Respondent) attaching extracts of the transcript of the evidence given by the Applicant’s mother and sister, and invited the Applicant to submit further evidence from those witnesses addressing these issues. The email included:
“The current state of the evidence may lead the Tribunal to make adverse findings about the credibility of the Applicant’s mother and/or sister due to the above apparent anomalies in their evidence. Further, the Tribunal may infer that the Applicant’s mother, sister or both were told by the Applicant to tell the Tribunal that he was suicidal at the prospect of being returned to Fiji to enhance his prospects of getting his visa back.”
That afternoon, the Applicant’s counsel stated that the Applicant was prohibited from putting forward further evidence by s500(6J) of the Act.[183] He further submitted that
“even if it be accepted that the Applicant’s mother and sister were present in Court on the relevant occasion, it does not necessarily follow that they were present in Court for the entirety of the sentencing proceedings. Nor does it necessarily follow that the Applicant’s sister and mother followed all that was said in the sentencing proceedings…The fact that the Applicant’s sister and mother were present at the Applicant’s sentencing hearing does not mean that their presence at those proceedings meant that they received full knowledge of the Applicant’s criminal history, including the full nature and sentences the Applicant had received.”
[183] The last day the Tribunal had to make the decision was Monday 9 October 2023 so that was the last day any further evidence could have been taken.
The Applicant’s mother and sister were never asked if they had full knowledge of his criminal history including the sentences he received. High level knowledge was never in issue. The issue was their denial of any knowledge prior to these proceedings.
The Applicant’s counsel construed the quoted passage from the Tribunal’s email as an “Allegation of Perverting the Course of Justice / Breach of Administrative Appeals Tribunal Act 1975 (Cth)” and that the “the Applicant, the Applicant’s mother and sister have conspired to give false and misleading evidence before the Tribunal”.
On the morning of 9 October 2023, the Respondent emailed the Tribunal advising that the Minister did not contend that the Applicant, his mother and his sister had conspired to each mention the Applicant’s alleged risk of suicide. The Tribunal therefore proceeded to determine the application on the basis that there was no such arrangement. The Respondent reiterated the submission made in the hearing that the evidence did not demonstrate any risk of suicide, and specifically pointed to the lack of medical evidence.
The Applicant’s counsel provided a response that included:
“The medical evidence of Mr Matt Visser made clear that the Applicant was at serious risk of self-harm in Fiji. That evidence was not sensibly challenged before the Tribunal”.
In fact, Mr Visser’s report said:
“Without the primary protective factors, the possibility stable employment, housing, family support, medical support, his risk of returning to drug use would escalate substantially, and were he to relapse, there’s a high risk of harm both to himself and the community.”
There is no reference to self-harm: rather the reference is to a risk of harm from drug use.
The Applicant’s submissions that were provided on 6 October 2023 included:
“As a matter of procedural fairness, before the Tribunal could make adverse findings in relation to the impugned issues raised, the allegations would need to be put to the Applicant, the Applicant’s mother and the Applicant’s sister…The Applicant is also concerned that these issues have been raised, in effect, at the 11th hour by the Tribunal. They were not, of course, raised during the trial by either the Tribunal or the Minister. These raise serious procedural fairness concerns for the Applicant.”
During the hearing, in the interests of procedural fairness, the Tribunal recounted evidence that a witness had given that was inconsistent with evidence the Applicant had given, and gave the Applicant an opportunity to address the inconsistency. His counsel expressed doubts about the Tribunal’s recollection of the evidence[184], which underlined the importance of having an accurate record of the oral evidence. The hearing concluded on Friday 29 September 2023. The 206 page transcript of proceedings was received by the Tribunal on the afternoon of Wednesday 4 October 2023. The Tribunal raised these matters with the parties on the morning of Friday 6 October 2023. The Tribunal was required to decide the application before midnight on Monday 9 October 2023.[185]
[184] The Tribunal’s recollection was correct but it took quite some time to locate the correct place in the sound recording to confirm this.
[185] See s 500(6L) of the Act.
With respect to the Applicant’s complaint that matters were not put to the witnesses during the hearing, it is not reasonable to expect the Respondent, or the Tribunal for that matter, to alert the Applicant to every weakness in his case. That is especially so in circumstances where there was a great deal of evidence from the Applicant and his witnesses, no real-time record of it, and the Applicant was well positioned to address the relevant weakness in issue had he wanted to. The District Court sentencing remarks were provided to the Applicant last year with an invitation to comment on them. He did comment in a document dated 22 December 2022.[186] The sentencing remarks were also contained in the “G-Documents” that were served on him several weeks before the hearing. The Applicant secured legal representation in April 2023.[187] He and his counsel were obviously present in the Tribunal hearing when his mother and sister each said they did not know about any of his offending until a copy of his criminal record was provided in the context of these proceedings. There was ample opportunity for the Applicant to address the apparent inconsistency between their evidence and the evidence of a District Court judge in re-examination. The invitation from the Tribunal following the hearing was made over and above the requirements of procedural fairness.
[186] Exhibit G1: G15, pages 138 to 140.
[187] Exhibit A2, page 40.
I add that there is a document in the material that was produced by the Director of Public Prosecutions (“DPP”) under summons, and filed by the Respondent, that purports to be a character reference from the Applicant’s sister, dated in 2000, concerning an assault committed by the Applicant. The Tribunal did not notice the name of the author of this reference until Saturday 7 October 2023. The DPP documents were produced only a few days before the hearing, providing very limited time for their examination. Given that, and the fact that this document is over 22 years old and was not put to the Applicant’s sister or mentioned at all in the hearing, it would be a denial of procedural fairness to take it into account in any way adverse to the Applicant or his sister. I therefore have not done so.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction. The Applicant has an extremely serious criminal history. Even if there was not a material risk of further offending, Primary Consideration 1 would weigh very heavily against the Applicant, with added weight from Primary Consideration 2. However, there is a risk of further offending including violent offending and that includes family violence. The combined weight of Primary Consideration 3 and Other Considerations (a) and (b) do not outweigh the combined weight of Primary Considerations 1, 2 and 5. Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 306 (three hundred and six) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy

.................................[SGD]...................................
Associate
Dated: 25 October 2023
Date of Hearing: 28 and 29 September 2023

Applicant:
Dr Jason Donnelly of Counsel
Instructed by Zarifi Lawyers

Respondent:
Mr Alex Chan
Sparke Helmore

DRAFT EXHIBIT REGISTER

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 – G documents G1-G40, 561 pages.

R

Various

31 July 2023

A1

Applicant’s Tender Bundle Pt 1, Various dates, 44 pages.

Statement of Ann Udite Wright, 21 August 2023, 2 pages.

Statement of Kusum Prasad, 20 August 2023, 2 pages.

Statement of Leena Prasad, 20 August 2023, 2 pages.

Statutory Declaration of Paul Mepham, 17 May 2023, 4 pages.

Statement of Dr Suresh Prasad, 20 August 2023, 3 pages.

Total Pages: 93

A

Various

21 August 2023

A2

Applicant’s Tender Bundle Part 2

Total Pages: 135

A

Various

13 September 2023

A3

Supplementary Statement of Ashley Nand Prasad. Total Pages: 9

A

Various

24 September 2023

A5

Applicant’s Tender Bundle Part 3

Total pages: 5

A

25 September 2023

R1

Respondent’s Statement of Facts, Issues and Contentions. Total Pages 33

R

Various

19 September 2023

R2

TB1: Documents produced under summons by the Registrar, Brisbane District Court.

TB2: Documents produced under summons by the Registrar, Brisbane Magistrates Court

TB3: Documents produced under summons by the Registrar, Wynnum Magistrates Court

TB4: Documents produced under summons by the Director of Right to Information, Queensland Department of Transport and Main Roads

TB5: Documents produced under summons by the Proper Officer, Queensland Corrective Services

Total Pages: 569

R

Various

19 September 2023

R3

TB5: Continued, documents produced under summons by the Proper Officer, Queensland Corrective Services.

Total Pages: 393

R

Various

19 September 2023

R4

TB6: Documents produced under summons by the Commissioner, Queensland Police Services.

Total Pages: 699

R

Various

19 September 2023

R5

Documents produced under summons from the Director of Public Prosecutions.

R

Various

26 September 2023

Applicant:	Dr Jason Donnelly of Counsel Instructed by Zarifi Lawyers
Respondent:	Mr Alex Chan Sparke Helmore

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 – G documents G1-G40, 561 pages.	R	Various	31 July 2023
A1	Applicant’s Tender Bundle Pt 1, Various dates, 44 pages. Statement of Ann Udite Wright, 21 August 2023, 2 pages. Statement of Kusum Prasad, 20 August 2023, 2 pages. Statement of Leena Prasad, 20 August 2023, 2 pages. Statutory Declaration of Paul Mepham, 17 May 2023, 4 pages. Statement of Dr Suresh Prasad, 20 August 2023, 3 pages. Total Pages: 93	A	Various	21 August 2023
A2	Applicant’s Tender Bundle Part 2 Total Pages: 135	A	Various	13 September 2023
A3	Supplementary Statement of Ashley Nand Prasad. Total Pages: 9	A	Various	24 September 2023
A5	Applicant’s Tender Bundle Part 3 Total pages: 5	A	25 September 2023
R1	Respondent’s Statement of Facts, Issues and Contentions. Total Pages 33	R	Various	19 September 2023
R2	TB1: Documents produced under summons by the Registrar, Brisbane District Court. TB2: Documents produced under summons by the Registrar, Brisbane Magistrates Court TB3: Documents produced under summons by the Registrar, Wynnum Magistrates Court TB4: Documents produced under summons by the Director of Right to Information, Queensland Department of Transport and Main Roads TB5: Documents produced under summons by the Proper Officer, Queensland Corrective Services Total Pages: 569	R	Various	19 September 2023
R3	TB5: Continued, documents produced under summons by the Proper Officer, Queensland Corrective Services. Total Pages: 393	R	Various	19 September 2023
R4	TB6: Documents produced under summons by the Commissioner, Queensland Police Services. Total Pages: 699	R	Various	19 September 2023
R5	Documents produced under summons from the Director of Public Prosecutions.	R	Various	26 September 2023