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

[2022] AATA 3825

QHPK and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3825 (18 October 2022)

Division:GENERAL DIVISION

File Number(s):      2022/0458

Re:QHPK

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member Dr N A Manetta

Date:18 October 2022

Date of written reasons:        15 November 2022

Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the applicant’s husband’s application for a Partner (Provisional) (Class UF) visa not be refused under section 501(1) of the Migration Act 1958 (Cth).

...............[sgnd]...................................................

Senior Member Dr N A Manetta

Catchwords

MIGRATION – partner visa – applicant’s partner refused visa – violent offending eleven years ago by applicant’s partner towards a past spouse – substantial criminal record – visa refused under s501(1) – Direction 90 –  low risk of reoffending – decision set aside

Legislation

Migration Act 1958 (Cth)

Cases

Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; 183 FCR 113

Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119

Secondary Materials

Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member Dr N A Manetta

15 November 2022

1. After I delivered my decision and oral reasons, I received a request for written reasons, which I now publish.  These are the reasons I read out to the parties with minor variations. 

2. This is an application by “QHPK”, a person whose name has been anonymised as a result of a confidentiality order, and to whom I shall refer as “the applicant” in these reasons.  The applicant is seeking a review of a decision by a delegate of the respondent dated 10 December 2021. By this decision, the delegate refused the applicant’s spouse’s application for a partner visa with which to enter Australia as her spouse. The applicant’s spouse, to whom I shall refer as “Mr K”, is a citizen of Tonga and is currently living there.  One visa[1] applied for by Mr K is identified in the file material as a Partner (Provisional) (Class UF) visa, and the grant of this visa was refused under section 501(1) of the Migration Act 1958 Cth (“the Act”).

   [1] The delegate’s reasons (Exhibit R1, pp11ff) note at [99[] that there was also an application for a Partner (Migrant) (Class BC) visa.  The delegate notes at [4] that the refusal caused this other visa application to be automatically refused under section 501F(2).

3. The delegate who made the decision first found that Mr K did not pass the so-called “character test” set out in section 501(6) of the Act. Having found that was the case and, therefore, that the discretion to refuse the partner-visa application under section 501(1) was enlivened, the delegate then proceeded to refuse the visa application. The delegate was bound to apply Direction no. 90[2] issued under section 499 of the Act. The delegate did so and decided, in the exercise of his or her discretion, to refuse the application.

   [2] “Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA”.

   TRIBUNAL’S TASK

4. The applicant, who has standing in this regard, has now sought a review in this Tribunal of the delegate’s decision.  Like the delegate, I must consider the same two questions; namely, whether the jurisdictional threshold for the exercise of the discretion exists, and, if so, what the proper exercise of the discretion on balance is. In respect of this second question, I must consider and apply Direction no. 90.

   In matters like this, the Tribunal proceeds de novo, to use the Latin expression. This means that I hear evidence, receive documents and submissions, draw inferences of fact and make final conclusions of fact for myself. I do not merely review the delegate’s decision for error. This manner of proceeding implies that I may affirm a decision under review notwithstanding the presence of an error in the reasoning of the delegate if that is the correct or preferable decision on the evidence before me. Equally, I may set aside the decision under review notwithstanding the absence of any discernible error in the reasoning of the delegate if that is the correct or preferable decision on the evidence.

5. At the hearing before me, Mr Turner appeared for the applicant; Ms Ng, for the respondent.

   STATEMENT OF CONCLUSION

6. I have decided to set aside the decision under review and to substitute a decision that Mr K’s application for a Partner (Provisional) Class UF visa not be refused under section 501(1) of the Act. I set out below the background facts and my reasons for this conclusion.

7. Mr K was born in Tonga on 8 May 1978, and was, therefore, 44 years of age at the time of the hearing before me.  I need not set out Mr K’s background in Tonga. I note that he has one conviction from his time in Tonga (dating from 2002) for drunkenness.  He was fined $20 (or one week’s imprisonment in lieu) on that occasion. 

8. Mr K arrived in Australia in September 2007 without a visa and, therefore, unlawfully. He left Australia on 28 June 2017. While in Australia, he married his first spouse.  That relationship bore the couple two children, who are still minors. It is clear from the records before me that Mr K was violent towards his former spouse. On 20 October 2011, he was convicted of two counts of unlawful assault relating to events that had occurred in March of that year. He pleaded guilty and received six months’ imprisonment in relation to each of the unlawful assaults. The punishment comprised, therefore, two sentences of six months to be served concurrently. The sentences were, however, suspended in their entirety for 24 months. 

9. I did not have the benefit of the sentencing remarks; but I did have before me the Victoria Police Incident Report Summary[3].  This summary records that the police attended the marital home and discovered Mr K in an “extremely intoxicated” state.  Mr K’s spouse is recorded as having reported to police that Mr K had forced his way into the home after returning from a party drunk and had grabbed her by the throat and pushed her into the corner of the fridge while she was holding their one-month old baby.  This caused the baby to hit its head. Mr K then dragged her to the couch and held her down while punching her four to five times in the head while she was still holding the baby. She injured her right hand trying to shield the baby.

   [3] Exhibit R2, p 4.

10. The summary goes on to note that Mr K presented with anger management concerns, and there were reports of a number of violent physical assaults against his spouse over the preceding four months.  I am prepared to act on the basis that this summary is accurate.

11. I do note, however, that more serious charges (see Exhibit R2, p 5), including reckless conduct endangering life, were not proceeded with in the end.

12. I note that there is a further finding of guilt for a contravention of a family violence intervention order.  This was dealt with in the Mildura Magistrates Court on 27 September 2012[4].  No conviction was recorded and Mr K was fined $100. I do not have sentencing remarks in respect of the matter, but I do note that I had before me a file note of a Department of Home Affairs Officer’s interaction with Victoria Police[5].  The offending apparently related to an incident on 13 January 2012. There were no independent witnesses. There were allegations and counter-allegations in relation to the events including mutual allegations of physical assault. Both parties bore physical marks consistent with having been assaulted. Both parties are recorded as having been charged with unlawful assault, and Mr K was also charged with contravention of the intervention order, which required him not to be at the marital when intoxicated and to refrain from family violence.  That record suggests there was extreme discord between the parties and that there were mutual assaults.  That is the only reliable evidence I have before me.  I take into account the finding of guilt (although there was no conviction recorded) in this matter against this background.

    [4] Exhibit R1, p 28.

    [5] Ibid, at p 41.

13. The criminal record stops in 2012.  Mr K remained in Australia for some considerable time after that: in fact, until his departure for Tonga in June 2017.  In October 2015, or thereabouts, Mr K and the applicant commenced a relationship.  I understand from Exhibit R1, p 305 that Mr K was formally divorced from his earlier spouse on 6 December 2016. 

14. Mr K left Australia for Tonga of his own accord in June 2017. He and the applicant married in Tonga on 17 July 2017.  I accept that the marriage is genuine.  An application or applications for a partner visa had earlier been filed on 30 June 2017. The delegate refused one such application on 10 December 2021, and the decision was communicated to the couple by email on 24 December 2021.

15. From the delegate’s reasons, it appears that, on balance, he or she formed the view that, first, Mr K did not satisfy the character test, and secondly, that in weighing the exercise of the discretion under section 501(1) in accordance with Direction no. 90, the family-violence offending ought to be given significant weight. In the circumstances, Mr K represented a risk of harm to the Australian community which was unacceptable in the delegate’s opinion. This led the delegate to refuse Mr K’s visa application. The formal decision refers to a refusal of a single visa, the Partner Provisional Class UF visa, and it is this decision that is formally before me on review.

    REASONS

16. I turn now to consider the two questions the delegate had to address. First, like the delegate, I find that Mr K does not satisfy the character test. He was found by the delegate to have a substantial criminal record as defined by section 501(7).  He did not meet, therefore, the character test under section 501(6)(a). That decision was in my opinion correct. Section 501(7)(c) and (d) provide that a person has “a substantial criminal record” if the person has been sentenced to a term, or terms, of imprisonment of, or totalling, at least 12 months. Subsection (7A) provides that if a person has been sentenced to two or more terms of imprisonment to be served concurrently, the whole of each term is to be counted in working out the total of the terms. An example is given where a person is sentenced to two terms of three months’ imprisonment for two offences to be served concurrently. It is noted that for the purposes of the character test, the total of these terms counts as six months. In this case, the concurrent terms must be counted as 12 months.

17. It was initially put to me by Mr Turner that because Mr K did not have to serve his term of imprisonment in gaol, the sentences are not to be counted.  I do not agree with that initial submission, which was subsequently withdrawn. It is the fact of being sentenced to a term or terms of imprisonment that causes a person to fail the character test whether or not the sentence is suspended.  Ms Ng referred me to the Federal Court authority of Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; 183 FCR 113, which confirms this plain reading. Accordingly, I find the jurisdictional threshold in section 501(1) satisfied.

18. I now turn to the exercise of the enlivened discretion.  Like the delegate, I must apply Direction no. 90.  In many of these matters, I have become accustomed to referring to my own prefatory remarks in Re Raiand the Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119 at [32]ff.  Re Rai concerned a refusal to revoke the mandatory cancellation of a visa under section 501CA(4), but my prefatory remarks are also applicable, I believe, to cases of a discretionary refusal of a visa under section 501(1), mutatis mutandis.  When I delivered my oral reasons, I said that I would set out these paragraphs if written reasons were requested and I do so:

    32.  I first make some prefatory remarks about Direction 90. It is clear that the Direction is framed against the stated objective of the Act which is to regulate in the national interest the coming into and presence in Australia of noncitizens: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(3) to consider the specific circumstances of the case in deciding whether to exercise the discretion to revoke the cancellation decision. The explicit purpose of the Direction is to guide decision-makers in performing their discretionary functions under the Act: see paragraph 5.1(4).

    33.  I have considered the principles that appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. These principles are set out against paragraphs numbered (1) to (5). I set out some of the salient features of these principles without setting them out in exhaustive detail.

    34.  First, remaining in Australia is a privilege conferred on noncitizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, noncitizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas where noncitizens have engaged in conduct that raises serious character concerns. This expectation arises regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by noncitizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the noncitizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove insufficient to revoke a mandatory cancellation. In particular, I note that the inherent nature of certain conduct such as family violence or conduct mentioned in paragraph 8.4 (2) is so serious that even strong countervailing considerations may be insufficient in some circumstances to warrant revoking a mandatory cancellation even if the noncitizen does not pose a measurable risk of causing harm to the Australian community.

    35.  I have had regard to these principles and accept them as the framework within which I must approach my task of deciding whether to revoke the mandatory cancellation of Mr Rai’s visa.

    36.  Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that section 7 directs me to give appropriate weight to information and evidence from independent and authoritative sources. Section 7 also directs me to give greater weight “generally” to primary considerations over other considerations.

19. I turn now to apply Direction no. 90. I begin first with the primary considerations, which, I note, ought generally to be given greater weight than the so-called other considerations referred to in paragraph 9 (see paragraph 7(2). There are four primary considerations specified in the Direction.

20. The first is the protection of the Australian community from criminal or other serious conduct.  Paragraph 8.1(1) sets out principles which I need to bear in mind concerning the Government’s commitment to protecting the Australian community from harm. Entering Australia is a privilege conferred on noncitizens in the expectation that they will be law-abiding and will not cause or threaten harm to individuals or the Australian community. I bear subparagraph (1) in mind.

21. Subparagraph (2) requires decision-makers to give consideration to the nature and seriousness of the noncitizen’s conduct to date and the risk to the Australian community should he or she commit further offences or engage in other serious conduct.

22. Paragraph 8.1.1(1) requires me to assess the nature and seriousness of Mr K’s criminal offending and other conduct to date and to have regard to a number of matters specified in subparagraphs (a) to (g).  I first deal with one sort of conduct; that is, entering Australia unlawfully.  It is a serious matter for Mr K to have entered Australia unlawfully and to have remained here so long; but I also accept that once here, Mr K no doubt found himself in something of a bind, so to speak, where he had committed himself to life here but would have found it difficult to seek to regularise his presence by owning up to authorities.  Nevertheless, it was a very wrong thing to do.

23. I do not think there is any risk of that misconduct recurring since Mr K voluntarily left Australia in 2017 and now seeks a visa with which to join the applicant here lawfully.  I must take account of Mr K’s unlawful entry into Australia as a matter forming part of his criminal offending and misconduct, but it is not a crime that will be repeated.

24. Clearly enough, the violence of which Mr K has been convicted must be considered very seriously having regard to the contents of subparagraph (a). He was found guilty of serious acts of family violence. These acts involved his then wife and they were extremely violent. The Direction requires them to be considered as very serious irrespective of the sentence imposed. 

25. I am to consider whether there is any trend of increasing seriousness.  I bear in mind here that the instances of family violence that were charged and proven (on a guilty plea) against Mr K could not have been the only instances of family violence in the relationship. The offending occurred in the context of a relationship where violence regularly featured.  I bear in mind also that although Mr K has not been charged or found guilty of an offence of violence against a child, the offending against his then wife occurred when she was holding a baby. On the report that I have seen and referred to earlier, his spouse attempted to protect the baby as she was being struck.

26. The violence in question was, in my opinion, substantially aggravated by that circumstance. I regard the offending, as described in the police report, as evidencing a trend of increasing seriousness. The violence had become so serious that it prompted a perhaps reticent domestic partner to go to police and court.  There is clearly a cumulative effect of repeated offending so far as family violence is concerned and I take that into account.

27. I take into account the conviction for the breach of the intervention order in 2012. It is a further example of antisocial behaviour, although the note in the Home Affairs Department’s file, based on a conversation with Victoria Police, would appear to show a degree of violence was also extended to Mr K.  Nevertheless, I bear in mind that Mr K, as the male partner, was physically stronger and able to move away from the violent situation rather than engage in it, but he chose not to do so.

28. Mr Turner referred to the difficulties and antagonism in what he submitted was a “toxic” relationship. I do not doubt there were profound difficulties in this relationship. But it remains the case ‒ and I hold very firmly to this view ‒ that physical violence in a relationship is not excused or diminished except where it amounts to a proper case of self-defence.  I proceed on that basis.

29. I must also consider the risk to the Australian community should Mr K commit further offences. I bear in mind, without restating it, what appears in paragraph 8.1.2(1). In assessing risk in accordance with subparagraph (2), I must have regard to “cumulatively”, first, the nature of the harm to individuals or the Australian community should Mr K engage in further criminal or other serious conduct and, secondly, the likelihood of his so doing.  On the assumption that Mr K were to repeat acts of family violence towards a spouse, it would be a very serious matter indeed. Assaults upon women in a domestic setting can lead to significant physical and psychological harm, and so I would regard the nature of the harm that Mr K would inflict to be very serious indeed. I bear in mind that the police found Mr K in 2011 in a very intoxicated state. This implies that he was not in a position, due to his intoxication, to regulate his behaviour. His victim had to leave the house.  Violence fuelled by alcohol can have unpredictable aspects to it and unintended consequences for a victim. This makes the risk all the greater and, therefore, all the more serious.

1. I must have regard to the likelihood of Mr K reoffending.  I think the likelihood is low.  The marriage relationship in question has now ended with a formal divorce order, and that was some years ago.  If Mr K were to return to Australia, he would have no contact with his wife unless that were seen to be desirable by both. I do not believe Mr K poses any threat to his former wife. Access to his children, if it is to be permitted through court order, will also be regulated, and I do not believe Mr K poses a threat to his children.

2. I believe the risk of Mr K attacking the applicant is low.  I bear in mind the following matters.  First, the past offending is now some years old. I do not doubt that there must have been multiple instances of violence in the earlier relationship, but the relationship ended some years ago now. There is no evidence before me that suggests that Mr K has been violent towards the applicant, whom he met in 2015 and with whom he was living at the time of his departure from Australia to Tonga in 2017. The applicant is a mature woman who has had an earlier marriage that proved unhappy. Given her age, it is unlikely she will have children with Mr K.  I do not believe that she would have married Mr K or sought to have him join her in Australia if she entertained any real doubts about his behaviour.  According to the evidence before me, Mr K has participated in the applicant’s family life successfully. There have been references and statements in support provided by family members[6]. I would not expect these statements to have been provided if Mr K had behaved inappropriately in a family setting.

   [6] See Exhibit A1, documents [16] and [17].

3. I note also that Mr K’s offending was influenced by excessive alcohol. There are also references on file that suggest that Mr K has participated well in the Tongan community, including a church community, and his interactions in that community have been positive[7].  I note that if he were to return to Australia, he would have a part-time job according to the evidence before me[8] and, of course, he would be supported emotionally by the applicant and live within the affection of the applicant’s family. These are strong protective factors in my opinion.

   [7] Ibid, documents [2], [3], [5], [8].

   [8] Ibid, document [4].

4. I also acknowledge that the threat of gaol and deportation would remain in the future for as long as Mr K is not an Australian citizen.  That is a strong deterrent.  

5. There is no evidence before me suggesting that the violence of his relationship with his former wife has been repeated in other contexts. I have already said that the relationship in question ended some years ago in a divorce.

6. I do not say the risk of reoffending is nil because Mr K has crossed the threshold, so to speak, of alcohol abuse combined with physical violence and that will remain a risk factor for him going forward, however happy the couple may be today.  Nevertheless, based on all the information available to me, I assess that risk as low.

7. I do note, however, that the Direction requires me to have regard to the risk of recidivism “cumulatively”; that is, in conjunction with the nature of the harm to the Australian community I have already discussed.  I do so.

8. Paragraph 8.2 concerns family violence.  It is a new paragraph, and it differentiates Direction no. 90 from its predecessor, Direction no. 79. It is clear that Direction no. 90 places a special emphasis on family violence: I am cognisant of that.

9. I must have regard not only to the acts of family violence that have been charged but also to non-charged instances of family violence.  I acknowledge that the Direction requires me to have regard to the view that the federal Government has serious concerns about allowing a man like Mr K the right to enter Australia.  Subparagraph (3) of paragraph 8.2 mandates the consideration of a number of factors specified in subparagraphs (a) to (d).  The first is the frequency of Mr K’s conduct and whether there is any trend of increasing seriousness. This is the same matter that I was required to consider under paragraph 8.1.1 (d).  As I have said, there must have been many instances of violence, and I also believe the charged instances reflect increasing seriousness for the reasons earlier given. I have regard to the cumulative effect of repeated acts of family violence.  In addition to the physical harm a victim suffers, repeated acts of violence substantially affect, indeed sometimes destroy, psychological confidence and well-being.

10. Under subparagraph 8.2(c), I am to have regard to rehabilitation achieved at the time of decision and to have regard to three matters specified in subparagraphs (i) to (iii) although these do not exclude consideration of other relevant matters. 

11. Mr K does not fully accept responsibility for his family violence. It seemed to me that he placed the violence firmly within the context of an unhappy relationship. The relationship was undoubtedly unhappy; but as I have said, a man, particularly one who is physically larger than his partner, and who is not acting in legitimate self-defence, must bear both legal and moral responsibility for the acts of physical violence he metes out as retaliation for what is perceived by him to be unfriendly or offensive conduct.  Even if I were to assume, for example, that Mr K was repeatedly goaded by his former spouse’s offensive or unfair comments, that would not be an acceptable explanation or an excuse for the physical violence with which he chose to retaliate.  I do not believe Mr K yet appreciates that.  Equally, I do not believe he has developed any understanding of the impact of abusive behaviour on female victims and on children who witness that behaviour.  I do not believe Mr K has made any efforts to engage in therapy or counselling which would address the reasons for his alcohol abuse and violence: see subparagraph (3)(c)(iii).

12. I am directed by paragraph (3)(c), as I say, to have regard to the degree of rehabilitation achieved as at the time of my decision. The fact remains that the family violence has been confined, on the evidence before me, to one relationship that ended many years ago. I believe I should also give consideration to Mr K’s behaviour towards his present wife, the applicant, and within her family. I have also had regard to the references provided by community members in Tonga. These indicate a more positive and responsible attitude by him.  All in all, I believe that there has been substantial rehabilitation, and it has been lived out in a family and community setting.

13. That said, there is no doubt that the violence in question was very serious for the reasons I have earlier explained.

14. I am to have regard to the best interests of minor children in Australia affected by my decision.  The delegate suggested that the weight to be attached to this factor was “mixed”[9] because while Mr K would be unable to offer his biological children care and support one-on-one if he remained out of the country, the children would be protected from witnessing further violence. However, at paragraph [92][10], the delegate concluded that the best interests of Mr K’s two children did weigh “significantly” in favour of not refusing him a visa.

    [9] Exhibit R1, p 20 at [59].

    [10] Exhibit R1, p 25.

15. I agree with the delegate that it is in the interests of the minor children to have a positive one-on-one relationship with their biological father if that is possible. That remains the case even if there is another male partner fulfilling that role.  I assume there may well be one in this case. I accept that at the present time the evidence suggests there is no effective relationship between Mr K and his former wife which would facilitate access to his children. I bear that in mind, but I believe that I should not exclude the possibility of the children meeting with their father eventually, particularly as they enter their teenage years, where greater account will be taken of their own preferences in the matter.  I do not believe, moreover, that Mr K would be a threat to his children if he saw them, particularly as the first interactions are likely to be supervised. On the other hand, I do not have firm information before me that suggests that Mr K will be at all likely to have contact in the future.  Accordingly, I believe this factor weighs in favour of non-refusal on balance, but it must be tempered by the speculative nature of Mr K re-successfully establishing contact with his children and developing a civil and effective relationship with his former wife. 

16. Paragraph 8.4 concerns expectations of the Australian community. By subparagraph (3) the expectations set out in the paragraph apply regardless of whether Mr K poses a measurable risk of causing physical harm to the Australian community. I note further that by subparagraph (4) I am not to assess the community’s expectations for myself but to proceed on the basis of the federal Government’s views as articulated in the paragraph. These expectations do count against Mr K. He has engaged in serious conduct in breach of the expectation that a noncitizen will obey Australian laws.  Subparagraph (2)(a) of paragraph 8.4 directs my attention specifically to acts of family violence: these are expressed to enliven the expectation that the Australian Government should generally refuse entry to noncitizens who engage in such conduct. I accept that the expectations of the community as set out in paragraph 8.4 count substantially against Mr K.

17. I am to have regard to so-called “other” considerations in paragraph 9. These are listed non-exhaustively in subparagraphs (a) to (d) of subparagraph (1).

18. I do not believe international non-refoulement obligations arise.  I do not believe extent of impediments arise as Mr K has now been resettled in Tonga for some years. I have no evidence concerning the impact of my decision on Mr K’s victim and so I leave that consideration out of account.

19. I must have regard to Mr K’s links to the Australian community.  I believe I ought to have regard to the applicant’s marriage with Mr K, which dates from 2017. It was, and remains, a committed relationship. The applicant is an Australian citizen. I find the marriage is genuine.

20. Having heard the applicant’s evidence and considered her written statements and other statements, I believe that the impact on her of a decision to affirm would be very severe. I accept that she may well decide to move to Tonga in order to pursue her life there if I were to affirm the decision under review; but equally I accept that she does not speak Tongan (although I assume English is spoken widely) and her own prospects of good employment and maintaining an appropriate standard of living in Tonga would be questionable. I bear in mind that she, and not anyone else, is most likely to be the victim of any future acts of violence by Mr K.  I do not see that Mr K’s former wife or his children are likely to be a victim of any future violence, and I do not believe Mr K’s violence will extend more generally in the community: it appears that the violence in which he has engaged has arisen in a domestic setting where alcohol has been a contributing factor.

21. I believe the applicant is mature enough to make informed and sensible decisions about risk, and she has already lived for some significant time with Mr K.  This experience has informed her judgment.  If I affirmed the decision under review, the impact on the applicant of, in effect, compelling her to move to Tonga so as to preserve the marriage would be severe in my opinion. 

22. I take into account that Mr K has developed good ties with the applicant’s family members.  They clearly value him as their mother’s new partner, and he has become an appreciated member of the family although it must be said that the applicant’s children are no longer minors.

    WEIGHING THE CONSIDERATIONS

23. I turn now to weighing the various considerations under the Direction. This has proved to be a difficult exercise. Direction no. 90 certainly places a new emphasis on family violence.  There is no doubt, in my opinion, that the Direction speaks very strongly against family violence, and even a low risk of the recurrence of family violence is to be taken into account and given very serious consideration. I accept that the relationship between Mr K and his former wife was marred by many instances of domestic violence by him. I have concluded that Mr K lacks appreciation of his wrongdoing. His suggestion that the relationship was especially unhappy and that this explains the violence fundamentally mischaracterises his violence as understandable retaliation for his wife’s verbal abuse when it is not.  The community-expectations consideration counts heavily against Mr K.

24. That said, I do bear in mind that the relationship between the victim of the violence and Mr K ended many years ago. There is only a low risk of Mr K attacking his former wife or his children, in my opinion, if he returned to Australia.

25. In my opinion, the risk of future violence is low, and the most likely future victim of any such violence is the applicant before the Tribunal, who is married to him, wishes to pursue her life with him, and has not been herself the victim of family violence by him.  This makes the case rather unusual.  Mr K lived for some time in Australia before his departure for Tonga in 2017, and, as I say, there is no suggestion that violence has been a feature of his life with the applicant or with any of her family members.  The evidence that is before me suggests a positive integration into the applicant’s family. Mr K will have employment on returning to Australia according to the latest information I have, which is a positive factor for him. Family life and employment will assist him to keep away from excessive drinking.  And there is a possibility of Mr K’s own children benefiting from a future relationship with their biological father as the delegate found. 

    DECISION

26. In the unusual circumstances of this case, I have decided that, on balance, the preferable exercise of the discretion in section 501(1), informed by the various considerations in Direction no. 90, is not to refuse a partner visa to Mr K.

27. My formal decision will be, therefore, to set aside the decision under review and substitute a decision that the applicant’s husband’s application for a Partner (Provisional) (Class UF) visa not be refused under section 501(1).

    …………[sgnd]…………….

    Associate

    Dated: 15 November 2022

Dates of hearing:	23 and 24 May 2022
Advocate for the Applicant:	Raymond Turner Turner Coulson Immigration Lawyers
Advocate for the Respondent:	Grace Ng Australian Government Solicitor