QHRY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2022] AATA 93

QHRY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 93 (28 January 2022)
Division:GENERAL DIVISION
File Number: 2020/7540
Re:QHRY
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:28 January 2022
Place:Melbourne

The Tribunal affirms the reviewable decision.
.......................[sgd] .. ...............................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
MIGRATION – visa refusal – citizen of Papua New Guinea – Partner (Temporary) (Class UK) visa – criminal offending 2013 to 2018 – substantial criminal record – failure to pass good character test – discretion to refuse visa – Direction No. 90 applied – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
CASES
AssistantMinister for Immigration and Border Protection v Splendido (2019) 271 FCR 595
Brown v Minister for Immigration and Citizenship [2009] 112 ALD 67
Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113
Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1106
CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101
DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97
FYBR v Minister for Home Affairs [2020] HCATrans 056
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Healey and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4309
HVLC v Minister for Home Affairs [2019] FCA 616
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033
PQSM v Minister for Home Affairs [2019] FCA 1540
QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394
QHRY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 288
Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
Say v Administrative Appeals Tribunal [2020] FCA 1489
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Te v Minister for Immigration and Multicultural and Ethnic Affairs (1999) 88 FCR 264
Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 276 FCR 516
Yemshaw v Hounslow London Borough Council [2011] 1 WLR 433
SECONDARY MATERIALS
Australian Government Department of Infrastructure, Transport, Regional Development and Communications, Road Deaths Australia (August 2021)
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Sentencing Advisory Council, ‘Imprisonment,” < FOR DECISION
Senior Member A. Nikolic AM CSC
28 January 2022
INTRODUCTION

The Applicant seeks review of the decision to refuse his application for a Partner (Temporary) (Class UK) visa (the visa), on character grounds under s 501(1) of the Migration Act 1958 (Cth) (the Act).
The hearing was held on 11, 12, and 13 January 2022. The Applicant appeared by video-link and was represented by Mr Northam, a solicitor from Northam Lawyers. The Tribunal acknowledges and appreciates Mr Northam’s assistance, who appeared for the Applicant on a pro bono basis. The Respondent was represented by Mr Cunynghame, a solicitor from Sparke Helmore Lawyers.
For the following reasons the Tribunal affirms the reviewable decision.
BACKGROUND
The Applicant is a 32-year-old citizen of Papua New Guinea (PNG).[1] His mother, six younger siblings, and other family members continue to live there.[2] He also claims to have approximately 20 relatives living in Australia who remain PNG citizens.[3]
[1] Exhibit R1, 245.
[2] Ibid 216.
[3] Ibid.
The Applicant arrived in Australia in August 2011 to undertake a short vocational course.[4] He subsequently re-entered Australia in February 2012 to commence undergraduate studies, which he did not complete.[5] The Applicant was subsequently employed in the mining industry as a fly-in-fly-out worker.[6]
[4] Exhibit A11, [4.3].
[5] Ibid.
[6] Exhibit R1, 230; 231.
On 31 December 2012 the Applicant met an Australian woman, with whom he commenced a relationship and subsequently married in July 2014.[7] The Tribunal will refer to her as ‘Ms AB’. Ms AB was in a relationship until 2012 with another PNG citizen, whose visa and migration to Australia she successfully sponsored.[8] Two children resulted from that relationship, who were born in 2008 and 2012.[9] The Applicant and Ms AB also had two children together, who were born in 2016 and 2020.[10]
[7] Ibid 247.
[8] Ibid 202-203.
[9] Ibid 196-197; 249-250.
[10] Ibid 242; 244; 248.
The Applicant has not been law-abiding since arriving in Australia.[11] The following chronology summarises his criminal and visa history:
[11] Ibid 134; 136.
(a)14 January 2013: The Applicant was found guilty of Trespass-Entering and Unlawful entry of vehicle for committing indictable offence at night in company. Convictions were not recorded and a fine imposed for the latter offence.
(b)March 2015: The Applicant lodged his application for the visa sponsored by Ms AB.[12]
[12] Ibid 168-206.
(c)22 September 2015: The Applicant was found guilty of three counts of contravening a domestic violence order (DVO) to protect Ms AB. No conviction was recorded, and six months’ probation imposed.
(d)14 March 2017: The Applicant was found guilty of several offences:
(i)Failure to appear in accordance with undertaking, for which a conviction was recorded and $400 fine imposed;
(ii)Contravention of domestic violence order (aggravated offence), for which a conviction was recorded and two months’ imprisonment imposed; and
(iii)Contravention of domestic violence order, for which a conviction was recorded, and nine months’ imprisonment imposed.
(e)29 October 2018 – 22 July 2019: The Applicant was found guilty of Contravention of domestic violence order (aggravated offence), for which a conviction was recorded, and a sentence of three months’ imprisonment imposed, suspended for nine months. A four-year Nationally Recognised DVO was subsequently taken out against the Applicant on 22 July 2019 to protect Ms AB. It expires on 21 July 2023.[13]
(f)2 June 2020: The Minister sent the Applicant a Notice of Intention to Consider Refusal of his visa application, based on his ‘substantial criminal record’ and failure to pass the character test within the meaning of the Act.[14] The Applicant responded to this Notice with several emails between June and August 2020.
(g)12 November 2020: The Minister refused to grant the Applicant’s visa.[15] He was subsequently taken into immigration detention, where he has remained.[16]
(h)13 November 2020: The Applicant asked the Tribunal to review the refusal decision.[17]
(i)4 February 2021: The Tribunal, differently constituted, affirmed the refusal decision (first Tribunal decision).[18]
(j)23 July 2021: The Federal Court of Australia (Rangiah J) quashed the first Tribunal decision and remitted the matter for reconsideration, giving rise to this proceeding.[19]
LEGISLATIVE FRAMEWORK
[13] Ibid 293.
[14] Ibid 9.
[15] Ibid 119-122.
[16] Exhibit A1, 14 -15.
[17] Exhibit R1, 3-8.
[18] QHRY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 288.
[19] Exhibit R1, 443.
Taken together, s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and s 500(1)(b) of the Act are the sources of the Tribunal’s jurisdiction to review visa refusal decisions under s 501 (1) of the Act.
Section 501(1) of the Act confers a discretionary power on the Minister to refuse to grant a visa if the person does not satisfy the Minister that they pass the ‘character test’ as defined in s 501(6) of the Act:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or …
Section 501(7) of the Act sets out six circumstances in which a person is taken to have a substantial criminal record, including if the person has been sentenced to two or more terms of imprisonment where the total of those terms is 12 months or more: s 501(7)(d).
If an applicant fails the character test, the Tribunal must make a subsequent determination whether to exercise the discretion under s 501(1) of the Act to refuse the visa.[20] Guidance in exercising the discretion is found in Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (the Direction).
[20] PQSM v Minister for Home Affairs [2019] FCA 1540, [22].
The Direction
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. The Tribunal must comply with the Direction, which came into effect on 15 April 2021.[21]
[21] Section 499(2A) of the Act.
The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Clause 5.1 of the Direction sets out several objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens’. Clause 5.1(2) states:
…Where the discretion to refuse to grant…a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
The Direction cites the following principles at cl 5.2 as relevant to the decision-maker’s assessment of whether the discretion to refuse a non-citizen’s visa should be exercised:
(1) 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.
(2) 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.
(3) 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 measureable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(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 measureable risk of causing physical harm to the Australian community.
Annex A to the Direction provides further guidance regarding the assessment of whether a person passes the character test.
Clause 6 of the Direction provides that a decision-maker must take into account the considerations identified in cls 8 and 9 of the Direction, where relevant to the decision. In the event a person does not pass the character test, the following primary considerations (at cl 8 of the Direction) must be applied to the specific circumstances of their case:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the best interests of minor children in Australia;
(d)expectations of the Australian community.
Clause 9(1) of the Direction requires that other considerations must be taken into account where relevant. These include but are not limited to:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims;
(d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia;
(ii)impact on Australian business interests.
Clause 7(1) of the Direction states that in applying the primary and other considerations, ‘information and evidence from independent and authoritative sources should be given appropriate weight’.
Clause 7(2) of the Direction provides that primary considerations should generally be given greater weight than the other considerations. However, as held in Suleiman[22] regarding a previous equivalent direction:
…Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[22] Suleimanv Minister for Immigration and Border Protection (2018) 74 AAR 545, [23] (Colman J).
In Jagroop,[23] the Court held that:
[57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
…
[78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
EVIDENCE
[23] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, [57] and [78].
Documentary evidence
The following documents were taken into evidence:
(a)Documents lodged by the Respondent numbering 444 pages;[24]
[24] Exhibit R1.
(b)Two-page statement from the Applicant dated 1 November 2021; Unsigned one-page statement of the Applicant dated 17 December 2021; Unsigned one-page statement of the Applicant dated 5 January 2022;[25]
[25] Collectively Exhibit A1.
(c)Three-page statement from Ms AB dated 10 November 2021;[26]
[26] Exhibit A2.
(d)One-page letter of the Applicant’s cousin dated 31 December 2021;[27]
(e)Ten-page psychological report of Mr Tim Watson-Munro dated 14 December 2020, with Curriculum Vitae and letter of instruction dated 2 December 2020;[28]
(f)Records from the International Health and Medical Services (IHMS) dated between 10 February 2021 and 3 January 2022;[29]
(g)Bundle of detention centre records numbering 92 pages;[30]
(h)Certificates from ‘Universal Class’[31] referring to the Applicant’s completion of: Drug and Alcohol Abuse 101 on 17 July 2021; Domestic Violence 101 on 21 June 2021; Anger Management 101 on 16 June 2021; and Building Self Esteem on 2 June 2021;[32]
(i)Documents referring to the Applicant’s attendance at eight online sessions with ‘Smart Recovery’[33] between 5 November 2021 and 31 December 2021;[34]
(j)Letter from general practitioner Dr Marie Esguerra dated 5 November 2021 regarding medication for Ms AB’s depression;[35]
(k)Minutes from a Detainee Consultative Committee Meeting dated 16 December 2021;[36]
(l)35-page psychological report of Dr Jacqui Yoxall dated 2 December 2021 with Curriculum Vitae and letter of instruction dated 19 November 2021;[37] and
(m)One-page letter from the Applicant’s friend dated 2 November 2021.[38]
[27] Exhibit A3.
[28] Exhibit A4.
[29] Exhibit A5.
[30] Exhibit A6.
[31] Universal Class is a fee-based online provider of self-paced courses.
[32] Exhibit A7.
[33] Smart Recovery is an organisation originating in the United States that assists people dealing with addiction.
[34] Exhibit A8.
[35] Exhibit A9.
[36] Exhibit A10.
[37] Exhibit A11.
[38] Exhibit A12.
Records relating to the Applicant’s offending and other conduct
The Applicant committed his first two offences in December 2012, relatively soon after arriving in Australia. He pleaded guilty to unlawfully entering a domestic yard and vehicle in the early hours of the morning. Convictions were not recorded for these offences and a small fine was imposed.
Multiple DVOs were taken out over an approximately eight-year period to protect Ms AB, the most recent of which is a four-year order expiring on 21 July 2023. There are several police reports in evidence referring to Ms AB calling for police assistance and protection, but subsequently being unwilling to cooperate. Intoxication is a recurring feature in these reports, both in respect of family violence and the Applicant being found in control of a vehicle while over the prescribed limit of alcohol. A summary of police records follows:
(a)13 December 2014. The Applicant was reportedly ‘heavily intoxicated’.[39] The police report refers to Ms AB’s claim that he threw a beer bottle and other items at her, hit her with ‘closed fists in a flurry’, knocked her to the ground and ‘started kicking her on the ground’. When she attempted to flee, he reportedly intercepted her outside, knocked her to the ground and ‘started kicking her in the head again.’ Neighbours called police who observed that Ms AB ‘was visibly upset and shaking. She had sustained an injury to her elbow that was ‘fresh and bleeding’. The report concludes that she was ‘very visibly upset and traumatized.’ Ms AB subsequently requested a DVO. The Applicant was not present in court when the DVO was made on 19 December 2014; but it was subsequently served and explained to him on 9 January 2015.[40] The DVO required that he be of good behaviour towards Ms AB and not commit domestic violence against her.[41]
[39] Exhibit R1, 297.
[40] Ibid 144.
[41] Ibid 140.
(b)2 February 2015.[42] The Applicant reportedly breached the DVO by holding a knife up to Ms AB, throwing a glass that did not hit her, and punching her in the face. Police noted Ms AB had been crying and the middle of her face and nose were red. The Applicant was located asleep in the unit and when woken, denied being violent. He agreed, however, that he smashed two glasses when Ms AB would not allow him to go to sleep. The Applicant was arrested, charged, and refused bail.
[42] Ibid.
(c)28 February 2015.[43] The Applicant had reportedly been drinking alcohol since the previous day. The police report states he was ‘unhappy’ about police being called and shouted at Ms AB as she ‘attempted to calm’ him. The Applicant reportedly ‘pushed her away’ following which Ms AB called police. On hearing that Ms AB had contacted police, the Applicant reportedly threatened to ‘fuck [her] up,’ and hit the television screen with a vodka bottle causing it to shatter and the television to fall. The report states he then decamped. Police subsequently attended, interviewed Ms AB, and took photographs of the smashed television. Upon being located by police, the Applicant reportedly told them he smashed the television with the vodka bottle because ‘he was aware he must not hit the victim’.
[43] Ibid 144.
(d)28-29 March 2015.[44] Both the Applicant and Ms AB were reportedly intoxicated after attending a party, following which she locked him out of their apartment. He gained entry by climbing onto the balcony, but Ms AB asked him to leave, or she would call police. Ms AB told police he refused to leave and hid her telephone. Police characterised this as a DVO breach, but again noted Ms AB ‘was reluctant to provide any information,’ or admit the Applicant resided there. She subsequently admitted he resided there despite the DVO but was unwilling to cooperate and police did not proceed to charges.
[44] Ibid 298-299.
(e)3 April 2015.[45] This incident also reportedly occurred while a DVO was in place to protect Ms AB. Police attended at Ms AB’s request after she claimed the Applicant threatened her, but subsequently denied this, telling police she just ‘wants him gone’. Ms AB reportedly told police she felt unsafe because of the Applicant’s past conduct, but police found her report of threats to be unfounded.
[45] Ibid 301.
(f)5 May 2015.[46] This incident also reportedly occurred while a DVO was in place to protect Ms AB. On arrival, police noted Ms AB was standing across the road from her residence. She told police the Applicant ‘followed her upstairs and pushed her down the steps of their two story apartment’. Police noted Ms AB had no sign of any injury, appeared intoxicated, ‘changed her version of events a number of times,’ and displayed ‘extreme mood swings’ and aggression towards police. Police located the Applicant asleep in the unit and upon bringing him downstairs, noted he ‘was quick to anger, verbally abusing and swearing at [Ms AB]…[and]…walked towards [Ms AB] raising his hand in a clenched fist and swinging it in an aggressive motion towards her face’. Police subsequently arrested the Applicant.
[46] Ibid 148.
(g)19 March 2016.[47] The Applicant was stopped by police at approximately 4:00am and following a roadside breath test, reportedly recorded a breath alcohol concentration reading of 0.143. He was immediately served with a Notice of Suspension or Disqualification.
[47] Ibid 326.
(h)4 August 2016.[48] A heated argument reportedly developed between the Applicant and Ms AB, which she said caused her to lock the sliding door to prevent him re-entering. She claimed the Applicant threw a glass bottle at the sliding door, which smashed, and then stated words to the effect of: ‘I just want to kill you’. Police were called and the Applicant, who was ‘heavily intoxicated’, was arrested, charged, and bailed. He entered an undertaking as to bail at the Watch House, agreeing to appear at the Townsville Magistrates’ Court three weeks later, but failed to do so.[49] A warrant was subsequently issued for his arrest, which was executed on 17 September 2016. He reportedly told police he forgot to attend court.
(i)21 November 2016.[50] Police attended Ms AB’s home and noted she was in a ‘highly emotional’ state while being attended by paramedics. She and the Applicant had reportedly been consuming alcohol throughout the evening and went to bed at around midnight. Ms AB reportedly woke the Applicant to call an ambulance, claiming she overdosed. When the Applicant called the Ambulance Service, Ms AB reportedly became angry, stating she just wanted his attention. An argument ensued where the Applicant reportedly called Ms AB a ‘bitch,’ grabbed her by the throat, squeezed her windpipe, and caused her to feel unable to breathe. Ms AB reportedly told police the Applicant hit her against walls and in the face about five times. The Applicant was asked about marks on AM’s neck and reportedly told them they must have been caused when he pushed her away after she woke him. Police arrested the Applicant, who was charged and bailed.
(j)30 December 2017.[51] The Applicant was stopped by police, who noted he ‘smelt strongly of liquor’. He was subsequently found to have a breath alcohol concentration of 0.055 grams of alcohol in 210 litres of breath and was issued with a Notice of Suspension or Disqualification.
(k)9 February 2018.[52] This incident report was also made while a DVO was in place to protect Ms AB. The Applicant and Ms AB were reportedly drinking at a public bar when an argument ensued, causing her to return home. Their verbal altercation reportedly resumed at home and Ms AB requested police attendance. She reportedly told police on arrival they were no longer required because the Applicant had left, but she wanted them to stop him and return his car, which she needed to take their children to school the next day. Ms AB was unwilling to provide a statement about the DVO breach and police did not proceed to charges.
(l)29 May 2018.[53] The Applicant reportedly breached a DVO by becoming aggressive with Ms AB while they were drinking at a public bar, by standing over her and poking her in the face ‘causing a small abrasion’. Police subsequently viewed the CCTV footage in the public bar, which confirmed this. The Applicant reportedly said ‘they were both very drunk and he did not mean to hurt her’.
(m)4 November 2018.[54] Police responded to public reports about a person driving a car erratically and subsequently discovered the Applicant asleep in the driver’s seat of his car. Police noted he smelled of alcohol and was ‘slurring his words’. He was arrested and a subsequent breath test disclosed a reading of 0.204 grams of alcohol in 210 litres of breath, over four times the legal limit. He was subsequently issued with a Notice of Suspension and transported to the Townsville Watchhouse where he was charged and bailed.
(n)30 November 2018.[55] This incident report was also made while a DVO was in place to protect Ms AB. It reportedly resulted from an argument Ms AB had with the Applicant while they waited in a fast-food drive-through to pick up ‘school lunches for the children for the next day’. When the Applicant walked around to the driver’s side to take over the driving, Ms AB reportedly ‘panicked [and] ripped the car keys out…causing the keys to snap in half,’ following which she ‘ran back through the car park and started banging on the restaurant doors’. The Applicant reportedly ‘left on foot in an unknown direction’. Police noted that Ms AB ‘is hostile to police’ and refused to provide a statement or version of events, which meant there was insufficient evidence to commence any proceeding. Police stated they drove Ms AB home where three young children were located alone. The report notes that a subsequent child harm report was made by police because of ‘current concerns and previous incidents’ that a child may be ‘at risk of significant harm’.
(o)12 December 2018.[56] The Applicant is reported to have driven a motor vehicle while his licence was disqualified from previous drink-driving offences.
(p)29 January 2019.[57] A police report noted advice from the Department of Child Safety that the Applicant was living in the same residence as Ms AB and a child, in possible contravention of a DVO. Ms AB is recorded as telling police she gave the Applicant written permission to be at the address consistent with the terms of an amended DVO. On the evidence currently available to the Tribunal this amendment was not approved by the court until 22 July 2019.[58]
(q)9 November 2019.[59] A police report stated the Applicant and Ms AB were drinking alcohol together at her home after she gave him written (texted) consent to be present, consistent with a court ordered amendment. An argument reportedly occurred after the Applicant stopped at a bottle shop to purchase more alcohol, which Ms AB suspected he intended to ‘drink with his mates’. Police noted her claim that she attempted to take the keys from the ignition to stop him driving, which the Applicant resisted by pushing her arm away. The Applicant left the scene, and both subsequently denied any domestic violence.
[48] Ibid 160.
[49] Ibid 156.
[50] Ibid 152.
[51] Ibid 339.
[52] Ibid 304.
[53] Ibid 342.
[54] Ibid 347.
[55] Ibid 307-308.
[56] Ibid 350.
[57] Ibid 311-312.
[58] Ibid 167.
[59] Ibid 315.
Applicant’s evidence

The Applicant adopted his statement as true and correct. He said that he first arrived in Australia in August 2011 and has since worked as a fly-in-fly-out worker for small mining companies. Initially this was during Christmas in 2015, followed by an eight- or nine-month contract in 2017-2018, then for about a year in 2019. He stated that he has approximately $23,000 in superannuation savings from employment in Australia.
The Applicant said he started drinking alcohol in 2012 while at university but ‘wasn’t a really big drinker’ until the death of two uncles in PNG at the end of 2014, one of whom was ‘like an older brother’. He said arguments developed with Ms AB about little things when they drank. The Applicant said news of his father’s death in 2015 ‘led to more drinking’. He referred to a ‘toxic boyfriend-girlfriend relationship’ with alcohol, which he unsuccessfully tried to end, despite past counselling opportunities. He contextualised his drinking as resulting from immaturity and undiagnosed depression.
The Applicant was asked about his initial offences in 2012 where he entered a residential yard in the early hours of the morning and went through the contents of the female occupant’s car. Despite several attempts, the Tribunal considers his responses did not directly address the origins of what he continues to claim was a ‘mistake’, which conflicts with his plea of guilty to both offences. It also conflicts with the police brief, which noted the Applicant’s claim that he entered the house as a ‘joke,’ which was put to the Applicant during the hearing.
The Applicant said he last consumed alcohol in November-December 2019. When asked why psychologist Mr Watson-Munro recorded his claim during their December 2020 consultation that he stopped drinking alcohol in early 2018 after attending psychological counselling and Alcohol, Tobacco and Other Drug Services (ATODS), the Applicant obfuscated, as follows:
Senior Member Nikolic: ‘I understand your evidence now is that the last time (you drank alcohol) was in November 2019, is that correct?’
Applicant: ‘Yes, because I didn’t tell-like I said before, it was, that was what Watson-Munro he asked me, he said when was the last time you had argument with the missus and you had charged and alcohol was involved, and I said 2018.’
Senior Member Nikolic: ‘That’s not how he writes it, what Mr Watson-Munro writes on page 17 of his materials, he says quote that you ‘have not had alcohol since attending ATODS in 2018’ and then he says quote ‘and consequently can be considered in full remission. I note that he sought treatment in 2018 and by his account has not consumed any alcohol since that time.’ Mr Watson-Munro also noted that your wife told him you had quote ‘stopped drinking in about April 2018.’…Now, those things aren’t right, are they?’
Applicant: ‘They’re-like I said before, the last time I’ve had alcohol was 2019.’
The Applicant was asked why he would talk about extensive counselling for six months when he only attended two ATODS sessions, and claimed to be alcohol free for ten months when this was not true.[60] He responded: ‘I don’t know, I, this-must have just wrote it down for the court or something, I don’t know. It’s been-I think I was just writing it down, definitely had like relapses few times, I’ve tried my best to be away from alcohol’.
[60] Ibid 221.
During cross-examination, the Applicant was asked about his family violence towards Ms AB. He accepted the accuracy of his criminal record but claimed to have matured during the last two years, particularly while in detention. He highlighted attendance on the Smart Recovery Program[61] and said that prior to this he had ‘never really thought about the consequences’ of his actions.
[61] Exhibit A8.
When asked if he ever committed family violence against Ms AB, the Applicant responded: ‘I’ve had arguments with my missus and…breached domestic violence orders’. He denied being physically violent towards Ms AB, claiming he was ‘kind of defending [himself] when she’s trying to start an argument’. When asked about reports he threw objects during these arguments, he agreed that he threw bottles at a wall but not at her. He also agreed that he threw a bottle that broke a television, stating: ‘Most of the time when I get frustrated, I break things and walk away’. When asked if he was aware how Ms AB felt on these occasions, the Applicant said he did not think about this during the incidents. When asked on reflection how she might have felt, the Applicant said: ‘She would have got more angry and pissed off at me for breaking things’. When asked if Ms AB might have been scared, the Applicant said: ‘No she was drunk and angry.’ He claimed his conduct towards Ms AB was ‘never threatening,’ but agreed that she or the neighbours called police on multiple occasions in response to his conduct.
The Applicant was asked about an incident on 5 May 2015, when police were called to a disturbance at their home and observed the Applicant was ‘quick to anger, verbally abusing and swearing at the victim…walked towards the victim raising his hand in a clenched fist and swinging it in an aggressive motion towards her face’.[62] The Applicant agreed this occurred, explaining: ‘I was asleep and wondered why she’d do that to me, and I was pissed off. I must have said you’re an effing bitch’.
[62] Exhibit R1, 148.
The Applicant was asked about several other incidents, including one on 21 November 2016.[63] He disputed references in the police reports to him choking Ms AB, or hitting her against walls, or in the face. He agreed that he told police the marks on her neck must have occurred when he was pushing her away. The Applicant stated ‘She was coming at me and I was trying to defend myself. She was becoming very aggressive, and I pushed her away…I didn’t hit the missus in the face – I was pushing her towards the walls’. The Applicant agreed that Ms AB had recanted many of the claims she previously made to police.[64]
[63] Ibid 152.
[64] Ibid 224.
The Applicant was also asked about an incident on 29 May 2018 at a pub, where he reportedly stood over Ms AB and poked her in the face, causing an abrasion.[65] The Applicant explained she took his credit card to stop him buying drinks for friends and while trying to recover it, he accidently scratched her face: ‘It wasn’t my intention to poke her in the face – it was a sudden thing’. He agreed this conduct breached his DVO, because he ‘had to be of good behaviour towards [Ms AB] and was not’. The Applicant also agreed that on 4 November 2018 police found him intoxicated in his car and that he recorded an alcohol reading of 0.204, which is over four times the legal limit.[66]
[65] Ibid 343.
[66] Ibid 347.
The Applicant accepted that he and Ms AB were so intoxicated on occasions, that neither could later recall what occurred. He accepted the accuracy of police reports in evidence if police personally observed something or saw it on CCTV. He distinguished these occasions, however, from what he claimed were often unreliable claims by Ms AB.
The Applicant was asked about his past rehabilitative claims, including a letter he wrote in January 2018 stating that six months of counselling helped him learn a lot about himself.[67] He also stated in the letter he was alcohol free for the preceding ten-and-a-half months and that Ms AB was ‘proud of…the person [he] had become’. His work supervisor also remarked favourably upon his progress at that time.[68] The Applicant agreed that his claimed abstinence in this correspondence was untrue, and he persistently relapsed during the following two years. He said the counselling he undertook was only for two sessions and downplayed its effectiveness: ‘I didn’t do much counselling’. When asked what he learned during these sessions, he responded: ‘mostly about anger management…just walk away if you’re upset with something…walk away and breathe’. The Applicant said his counsellor discussed the benefits of Dialectical Behaviour Therapy, which he had not yet undertaken. He did not continue with counselling at the time because: ‘it didn’t really work out with [his] work schedule’. The Applicant referred to involvement in more recent counselling while in detention, namely the online ‘Smart Recovery Program’ in June and July 2021.[69] He felt this had made a substantial difference for him.
[67] Ibid 221.
[68] Ibid 230.
[69] Exhibit A8. Smart Recovery is an online organisation in the United States offering assistance to people dealing with addiction.
The Applicant said being away from his family for the last year was an ‘expensive life lesson,’ resulting in lost time with his children and stepchildren. He claimed to have ‘always been there’ for his children, by taking them to school, to swimming lessons, and other activities. He has spoken frequently with Ms AB and the children while in custodial settings.[70] The Applicant said his youngest biological child is one year old and the next oldest is five. He was only with the youngest child for four months before being taken into detention. He last spoke with the older child via video call on the previous weekend. The Applicant said he is also close to his stepchildren, having come into their lives when they were young, and communicates with them by video call. He said the children’s biological father has a relationship with them, which the Applicant said was on a ‘50-50’ basis with Ms AB since approximately 2014. The Applicant said all four children would be badly affected if he was repatriated to PNG and would grow up without a father. He said Ms AB and the children would not relocate to live with him in PNG, because benefits, education and opportunities were better for her and the children in Australia.
[70] Exhibit R1, 234-241.
The Applicant said life was difficult for Ms AB after his detention, resulting in emotional and financial hardship. She is unemployed and receives Centrelink payments of approximately $800 weekly. He said she had pawned some of his tools and equipment during the last year to help make ends meet.
The Applicant said he abstained from alcohol and drugs in immigration detention despite the ready availability of both. He witnessed drunkenness, fights, and other incidents amongst detainees but remained compliant and well-behaved. No incidents had been recorded against him. He holds a representative position on the Detainee Consultative Committee (DCC).[71] The Applicant agreed he was assessed by an IHMS mental health nurse and psychologist variously as being a ‘low’ or ‘nil risk’ regarding his risk of self-harm, harm to others, or harm from others.[72] It is disputed between the parties as to whether this assessment relates solely to the immigration detention environment, or to the Applicant’s broader risk of recidivism if released.
[71] Exhibit A10.
[72] Exhibit A5.
If allowed to remain in Australia, the Applicant said he realises it will be his ‘last chance’. He intends finding work, looking after his family, and leading a law-abiding life. He said a friend living with disability will provide him with work as a carer,[73] pending his applications to resume work in the mining sector. He intends continuing with counselling, reconnecting with his religious faith, and working on better communication with Ms AB.
[73] Exhibit A12.
If returned to PNG, the Applicant said he would live with his mother and siblings, who he is very close to. They speak weekly by telephone and communicate frequently by text messages. The Applicant said he is fluent in English, Tok Pisin, and two other PNG dialects. He claimed work is limited in PNG because of COVID-19 and ‘a lot of the international companies had pulled out’. No supporting evidence was provided for this claim.
Evidence of Ms AB
Ms AB adopted her statement dated 10 November 2021 as true and correct. She claimed the Applicant:
…was never a threat to me or our children and is still no threat to anyone…[he] has never been violent towards me…I know it looks bad in the police reports about the incidents [he] pleaded guilty to but all the reports were taken by police officers while I was in a state of intoxication and was emotionally out of control and just wanted police to take [him] away and leave me alone’.
Ms AB claimed in her latest statement that she could not ‘remember most of what really happened’ and what she told police. She said: ‘The officers never came back the next day to take or confirm my statements when I was sober and in a right state of mind’. In an earlier statement dated 16 April 2018, Ms AB claimed she lied to police about the Applicant’s domestic violence, because she was ‘embarrassed, ashamed and very upset because of [her] actions,’ and had a ‘huge day…was tired…[and]…missed [her] normal dose of antidepressant medication’.[74] She claimed responsibility for pressuring the Applicant to buy her alcohol, which he did as a ‘loving man’ who ‘never complained’.[75] She claimed the Applicant is ‘not a big alcohol consumer’ or a ‘violent man.’ She also claimed to be ‘seeking counselling’ through her general practitioner, had discussed marriage counselling with the Applicant during his imprisonment, and was ‘not drinking alcohol anymore’.[76]
[74] Exhibit R1, 371-372.
[75] Ibid.
[76] Ibid.
In her recent consultation with Dr Yoxall, Ms AB is recorded as stating ‘it was only in the context of alcohol intoxication, and her arguing with him or lashing out at [the Applicant], that he demonstrated verbal or physical violence towards her’.[77] Dr Yoxall noted:
[Ms AB] said that between the last offending in November 2019 and the cancellation of the Visa and commencement of immigration detention in November 2020, there were no incidents of domestic violence. She said that she is not afraid of her husband. She said that the only times she has felt afraid was in the midst of a physical argument wherein she had hit him or pushed him and she felt that the situation was getting out of hand…She said that she considers that she did play a significant role in provoking and pushing [the Applicant] to the point that he would lash out at her. She said that she would argue with him, pester him and bother him and the more intoxicated she became, the more irrational she would become. She said that she is embarrassed to admit this now…She said that when she was drinking, she would argue with him in any way that she could. She said that she wouldn't let him play the music he wanted or she would demand that he continue to drink with her when he had told her that he was tired and wanted to go to bed. [Ms AB] said that some of their drinking sessions would go for 8 or 10 hours. She said that when she was in a very intoxicated state, she would make calls to the police. She said that it is '…embarrassing and stupid' to state now, but she said that some of those calls were made, 'to get attention or to win the argument with him'.[78]
[77] Exhibit A11, 55.
[78] Ibid 54-55.
In her oral evidence, Ms AB described the Applicant as her ‘best friend’ and said she blamed herself for constantly asking him to consume alcohol because she ‘couldn’t stop’. She claimed their drinking ‘went more out of control’ after the Applicant’s father died in 2015. She said arguments frequently developed during drinking sessions because she goaded and provoked the Applicant, who was unwilling to respond. She said their alcohol consumption was so uncontrolled at times they ‘could not remember what happened the night before’. She agreed, however, that attending police accurately recorded what they observed, and the information that was provided to them.
When asked if she drinks alcohol now, Ms AB said she had consumed alcohol since the Applicant was taken into immigration detention. She stated this was three times during ‘special occasions’ like birthdays and did not lead to excessive drinking. Later in her evidence she said her consumption of alcohol on these occasions was because she was ‘stressed with the children and [the Applicant] wasn’t there’ to help her. She claimed later in her evidence that she now avoids drinking alcohol, even on special occasions, ‘because it leads to more’. Ms AB agreed that Mr Watson-Munro’s recording of her claim that she stopped drinking after the November 2019 incident was untrue. When asked about Dr Yoxall’s similar reference, she responded: ‘I thought it meant like close to cutting down. I didn’t mention it because I thought having one once in a while is close to cutting out’.
When asked what measures were in place to prevent her relapsing into alcohol abuse, Ms AB said she received counselling. No corroborating evidence was provided for this claim and she could not recall the name of the person she undertakes counselling with. She claimed to have spoken with the Applicant ‘about the no alcohol’ arrangement.
When asked if she thought the Applicant has a problem with alcohol, Ms AB responded: ‘Not as much as I do, I think he can stop’. She said the Applicant experienced depression when his father passed away in 2015, but ‘not at the moment’. She did not think the Applicant has problems with managing anger, because it took her ‘a long time to stir him up’. When asked if she knew he previously undertook an anger management course, she said: ‘yes – he felt he’d give it a go’. Ms AB was asked about her claim in a letter dated 20 July 2020, that following anger management counselling and ATODS since 2018, the Applicant once again become the person she fell in love with.[79] In response to further questions, however, she was unaware of what anger management counselling he attended, or what it involved. She said the Applicant had not discussed his participation in counselling or ATODS with her and she had not asked: ‘No, we didn’t really communicate. We had so many problems with our relationship we didn’t really talk about anything…He doesn’t talk much – he just says he has a better understanding of our relationship’. Ms AB said the Applicant had also not discussed more recent participation in the Smart Recovery Program.
[79] Ibid 227.
Ms AB was asked about the claim in her November 2021 statement that the Applicant was never a threat to her or their children. She said that during police visits to her home the children were either asleep or with their aunty, or the two eldest were with their biological father. When challenged as to why she called police and sought DVOs if the Applicant was never a threat, Ms AB said it was because of her intoxication and wanting attention. She thought the police would give the Applicant a ‘slap on the wrist’ and that it would ‘not be as bad as this’. She initially claimed to have sought only one DVO in 2014. When asked if there were more after that, she responded: ‘I don’t really know because I was so intoxicated…I remember scratching myself and putting red marks around my neck before police arrived, but I can’t remember much else’. When asked if police previously observed damage to her home caused by the Applicant, Ms AB replied: ‘Yes’. When asked if intoxication affected her memory of these incidents, Ms AB stated: ‘I’d remember if he was really abusive towards me’. When asked why she wrote in a previous statement: ‘I just wanted police to take [the Applicant] away and leave me alone’, she responded: ‘Just so I could calm down and think about what I wanted to do and to see if he missed me’.
When asked if the Applicant was ever violent towards her, Ms AB responded: ‘No – just to shield himself and push me back’. When asked if he ever threatened harm, she responded: ‘Not that I can remember’. She said he was verbally but not physically abusive. When asked why he did not just walk away from her provocation, she claimed this was not possible because she followed and hit him. She claimed he only ‘restrained my arms. He’s pushed me a little bit away from him’. When asked how many times this occurred, she stated: ‘I can only remember one’. Ms AB agreed she called for police assistance, estimating she had done so on four occasions. When asked about the credit card incident where her face was scratched, Ms AB said the Applicant did not do this intentionally, again blaming her actions for precipitating his conduct. When pressed about her claims that the Applicant was never violent towards her, Ms AB stated:
No…he hasn’t. It’s to shelter himself from me constantly hitting him in the back of the head and chasing him and taking keys off him…To tell you the truth, the reason why I…used to do that stuff is because I wanted him to hit me back, which he didn’t do. And I just kept pushing him, because I wanted him to do that, because I don’t have any self-love for myself and I’m depressed all the time. And because my past relationship I’ve had with my two boys’ father he used to beat me up all the time and I just wanted the same - I wanted him to do the same thing so I could feel pain, cause I just don’t feel worthy of anything. So that’s the truth…

Ms AB is worried about what will happen to her if the Applicant is repatriated to PNG. If that occurs, she intends remaining in Australia with her children because it is not in their interests to relocate. She said the children would be without a father. Ms AB said she gets no support to look after her children from other family members because her mother works, and her father is ill. When asked about previous evidence about an aunt periodically looking after the children, Ms AB recalled her mother’s sister used to do so, but claimed this ended a year ago because the ‘kids are a lot older…they don’t want to go anymore.’ When asked why the two younger children could not be cared for by this aunt, Ms AB claimed she had asked her daughter who refused. She said her aunt was also ‘getting old…really tired’.
Ms AB said she last worked in a café in February 2020 but has since relied on Centrelink payments of approximately $800 per week. She said the Applicant ‘gives [her] money’, as does her former partner. She estimated the latter gives her ‘probably $50 a fortnight’ to support their children. Contrary to the Applicant’s evidence that Ms AB’s former partner has re-partnered, Ms AB claimed he has not, but has three additional children ‘to another lady’. Ms AB initially claimed there was no formal care arrangement between herself and her former partner, and that their children were almost always with her. When challenged that the Applicant said there is a ‘50-50’ percentage of care arrangement in place for the two eldest children with her former partner, she responded: ‘That’s just for Centrelink’. In response to further questions, she agreed there is a ‘50% each’ arrangement in place. During the current school holidays the children are predominantly with her. She claimed the former partner told her to ‘leave it at 50-50 and he’d give [her] extra money when school goes back’. Mr Watson-Munro also noted in his report a year ago that Ms AB told him there is an equally shared care arrangement with the father of Ms AB’s two eldest children.
Ms AB was asked about an application she made in November 2020 to vary the Applicant’s DVO, which is not due to expire until 2023. She claimed to be unable to attend the court hearing in January 2021 because the ‘kids weren’t well’. She has not taken any further action since to vary the DVO. She was asked by Mr Cunynghame whether the variation application had anything to do with the Applicant’s review application, which was lodged with the Tribunal six days earlier, to which Ms AB responded ‘No’.
Evidence of friends
Documentary evidence
The Tribunal has considered character references and statements from family, friends, and employers of the Applicant in the G-documents.[80] Two letters were also tendered into evidence from a cousin[81] and friend.[82] These are variously to the effect that the Applicant is kind, humble, a good friend, ‘role model’, ‘great mentor’, of ‘exceptional character towards his family and friends,’ provider of mental and spiritual assistance, wonderful father and stepfather, regrets his past conduct, ‘promotes Law and Order and…peace’ (sic), and has a ‘bright future with leadership qualities that can have a great impact on future generations’.
[80] Ibid 374.
[81] Exhibit A3.
[82] Exhibit A12.
Evidence of the Applicant’s friend
A 57-year-old friend of the Applicant, who the Tribunal will refer to as BG, gave oral evidence after adopting his statement as true and correct.[83] He claimed to have first met the Applicant in 2012 while ‘living on the street.’ He said the Applicant assisted him and a close friendship developed. BG considers the Applicant ‘like a nephew.’ When asked what Ms AB’s name is, the witness did not know. When asked what the Applicant’s children ‘s names are, the witness again did not know, stating: ‘I’m no good with names mate...I used to drink a lot – my memory’s not good anymore.’ BG said he had not provided Ms AB and the children any support since the Applicant entered immigration detention. He had also not previously tried to help the Applicant abstain from alcohol because ‘he’s a grown man and what choices he makes has to be his choices’. BG claimed to be a ‘pretty good judge of character’ and does not believe the Applicant constitutes a risk of recidivism.
[83] Ibid.
BG said he suffers chronic back pain and other medical issues affecting his mobility, for which he receives a Disability Support Pension. He claims that a friend currently acts as an unpaid ‘temporary carer’ but said he will recommend to Centrelink that the Applicant looks after him and receives Carer’s Allowance if released, to provide him with income until he gets a job with a mining company. BG said he would revert to his current unpaid carer if the Applicant found other work. No corroborating evidence was provided about BG’s claimed medical conditions, level of disability, or entitlement to a carer. The job offer for the Applicant is aspirational at best and relies on an application yet to be made to Centrelink.
BG confirmed his documentary claim that he does not condemn the Applicant’s violence against Ms AM,[84] while stating:
Because I mean, look I’m a Torres Strait Islander, like we don’t, we don’t have like, doesn’t matter if our wife hits us or anything like that, we still walk away, at the end of the day, we can’t hit them or anything like that, we can’t verbally abuse them, it’s just the way our custom is, you know, I mean the older you get, as a Torres Strait Islander, the older you get the old ways you stick to them, you gotta have some sort of boundaries.
Expert evidence
[84] Ibid.
Report of Mr Watson-Munro
The Tribunal has considered the report of psychologist Mr Tim Watson-Munro dated 14 December 2020,[85] who was not called as a witness. Mr Watson-Munro concluded that the Applicant has a moderate and recurring depressive disorder.[86] He also assessed the Applicant’s alcohol abuse to be in ‘Full Remission,’ founded on the Applicant’s then claim that he had not consumed alcohol since receiving ‘treatment’ in 2018.[87] Mr Watson-Munro noted the Applicant’s agreement that he required ‘more detailed, consistent and intensive treatment, notwithstanding the progress he is now making’. After applying the Hare Psychopathy Checklist, Mr Watson-Munro assessed the Applicant’s recidivism risk as ‘trending towards low.’[88]
[85] Exhibit A3.
[86] Ibid, 17.
[87] Ibid 17-18; 20.
[88] Ibid 14.
Mr Watson-Munro interviewed Ms AB prior to compiling his report, and erroneously stated she had ‘ceased drinking as well’. He further observed there was ‘somewhat of a multiplier effect’ between the Applicant and Ms AB ‘in terms of their separate problems, their self-medication and the impact it had upon their judgement, mood state and impulse control’.[89]
[89] Ibid 19.
Report of Dr Yoxall
The Tribunal has considered the report of psychologist Dr Jacqui Yoxall dated 2 December 2021.[90] She assessed the Applicant via videolink on 13 November 2021 and had a videoconference with Ms AB on 26 November 2021. Dr Yoxall gave oral evidence at the hearing and was cross-examined. Her evidence is summarised as follows:
(a)Over the period of his offending, the Applicant’s ‘unresolved grief and loss, undiagnosed and untreated depression and alcohol misuse disorder, impacted substantially on his judgment, impulsivity and behaviour and functioning’;
(b)Following the November 2019 incident with Ms AB, the Applicant and Ms AB developed more insight into their ‘relationship dynamics and their individual alcohol problems’.[91] Dr Yoxall accepts the Applicant was abstinent from alcohol for 12 months prior to entering immigration detention and based on this, considers he has ‘achieved full remission in the community’:
[The Applicant] has resolved the alcohol abuse. He has engaged in counselling, and various courses as part of rehabilitation that has now spanned two years. He has worked through his grief. He has addressed his depression. He has rebuilt a functional and stable relationship with his wife. He has matured and established greater skills in communication, conflict resolution, and emotional intimacy. There is demonstrated change in these risk factors.[92]
(c)The protective factors now in place are that the Applicant has ‘stabilized his relationship with his wife. He now has another child…He has been able to reconnect with his religious beliefs and established a healthier lifestyle with his wife and family’;[93]
(d)In applying the Spousal Assault Risk Assessment Guide to the Applicant, Dr Yoxall found that the ‘item of recent relationship problems is scored 0 for 'absent' because ‘there have not been significant relationship problems in the last 12 months’.[94] Moreover, she stated that prior to the Applicant’s immigration detention, ‘he has no significant periods of unemployment’. Dr Yoxall also stated: ‘There is no indication of attitudes that support or condone spousal assault. These items are scored 0 for 'absent'. She assessed the Applicant’s overall risk of committing further family violence as ‘low to moderate,’ on a scale where the only two outcome options are ‘low to moderate’ or ‘high’;[95]
(e)In terms of the Applicant’s risk of general reoffending, Dr Yoxall applied the Level of Service Inventory – Revised (LSI-R) actuarial instrument.[96] She concluded that the Applicant ‘is highly motivated to ensure that his risk of reoffending is low’[97] and assessed him as a ‘low risk of general reoffending and a low risk of rehabilitation needs.’[98]
[90] Exhibit A1, 32-73.
[91] Ibid 57.
[92] Ibid.
[93] Ibid 58.
[94] Ibid 59.
[95] Ibid 60.
[96] Ibid 61-64.
[97] Ibid 63.
[98] Ibid 64.
In her oral evidence, Dr Yoxall adopted her report as true and correct. She recalled speaking with the Applicant for approximately 90 minutes on 13 November 2021, which was preceded by four shorter telephone conversations initiated by the Applicant. Dr Yoxall confirmed her written assessment that the Applicant’s recidivism risk is ‘low’. Her oral evidence is summarised as follows:
(a)The Applicant has recognised his prior negative behaviour and taken responsibility for it following self-reflection.
(b)Dr Yoxall was unaware of the Applicant’s failed rehabilitation prior to being taken into detention in November 2020. She said he only referred to counselling during the last year and Ms AB’s counselling in the community. Dr Yoxall was unaware of who Ms AB undertook this counselling with, or who prescribed her medication. When asked about the significance of the Applicant’s past failed rehabilitative efforts and whether this affected her risk assessment, Dr Yoxall replied: ‘potentially – it stands to reason that previous failure in rehabilitation suggests a lesser chance of success subsequent to that’. She noted, however, that people with substance abuse disorder ‘tend to follow a pattern of abstinence and relapse’ which was a ‘hallmark of recovery from the disorder’. Dr Yoxall said the weight she placed on the Applicant’s relapses was not as high as his current ‘sustained period of abstinence’.
(c)Dr Yoxall was asked about the high score she gave the Applicant for the ‘Anger Control-In subscale’ on page 21 of her report. She responded: ‘It’s a score rather than a conclusion’.
(d)Dr Yoxall agreed with Mr Watson-Munro’s recommendation that the Applicant requires more detailed, consistent, and intensive treatment to address his rehabilitation needs.
(e)Dr Yoxall was asked several questions about why she allocated certain risk factors a ‘0’ or ‘not present’ as follows:
(i)In relation to a ‘0’ for relationship problems, Dr Yoxall said this ‘seemed counterintuitive’ given the history between the Applicant and Ms AB, but explained it was because there had been no significant relationship problems between them during the last 12 months. She confirmed this was despite the Applicant having been in immigration detention during the last 12 months:
‘These measures are built to assess risk as someone is currently presenting with current circumstances…these measures were not built to assess people in detention, in a controlled environment there are factors that are difficult to assess in the same way as the measure is built.’
(ii)In relation to a ‘0’ for currently unemployed, Dr Yoxall explained she does not score this factor adversely just because an applicant is in prison or detention.
(iii)In relation to a ‘0’ for dissatisfaction with his marital situation, despite what appeared to be a persistently dysfunctional relationship, Dr Yoxall explained this rating was based on their current ‘intimacy and emotional stability’ which was ‘optimal compared to previous periods of their life’;
(iv)When asked how she concluded that the neighbourhood the Applicant and Ms AB lived in was not a ‘high crime neighbourhood’, Dr Yoxall said this was ‘challenging to assess’ and ‘if uncertain we don’t load it against the person’.
(v)When asked why she allocated ‘0’ to each of the companion scores given the evidence of both the Applicant and Ms AB that he was drinking and spending time with negative peers, Dr Yoxall said this was based on the Applicant’s ‘self-report’; and that he may have been ‘pushed into drinking’ or did not know those he drank with had a criminal background.
(vi)When asked why she allocated a ‘0’ for ‘poor attitude towards sentence’, given the Applicant’s repeat offending and breaches of conditional liberty, Dr Yoxall said this was a ‘snapshot in time’, recording his attitude now.
(f)Dr Yoxall said Ms AB stated her alcohol use was so severe she often had ‘no memory’ of what occurred. She said ‘this was a challenging case in terms of the discrepancies between accounts’ and thought this was linked to memory issues associated with alcohol abuse.
(g)Dr Yoxall said she was unaware that Ms AB consumed alcohol on several occasions since November 2019, after previously claiming abstinence since that time.
(h)Dr Yoxall was asked whether Ms AB blaming herself for the Applicant’s conduct may impact the likelihood of reoffending. She said this ‘can affect the dynamic of the environment’. When asked if Ms AB was a factor in the Applicant’s recidivism risk, Dr Yoxall said: ‘it is…her ability to remain stable is a factor…She’s bringing to the relationship some ideas that are quite dysfunctional… and contributes to the risk of violence. It comes down to the treatment she’s receiving’. Dr Yoxall said she did not know what treatment Ms AB had received or may be receiving.
(i)When asked about the potential impact on the Applicant’s children if they were in the house during the incidents of intoxication and family violence, Dr Yoxall said the Applicant did not initially think the children were affected, claiming the older two were with their biological father and the youngest child was asleep, but had since accepted the potential for such conduct in the home to affect them.
(j)Dr Yoxall was unaware of the arrangements between Ms AB and her former partner for 50% - 50% care for their children, or that they communicate fortnightly. When asked about the potential impact on the Applicant’s children if he is repatriated, Dr Yoxall said she had not interviewed the children, but the ‘psychological literature and theory’ pointed to the potential of ‘lifelong impact’ following sudden separation from ‘primary caregivers and attachment figures’.
TRIBUNAL’S CONSIDERATION OF EVIDENCE
Applicant’s and MS AB’s evidence
Offending
The Applicant claimed in a 2018 statement that his first two offences in 2012 arose from an ‘honest mistake’ because he went to the ‘wrong house…[and tried]…to open the car door thinking this was my friend’s place.’[99] He has continued to give inconsistent evidence about this. Having regard to the summonsed material, the Applicant’s guilty pleas,[100] and his oral evidence, the Tribunal does not accept the ‘honest mistake’ claim. His continuing attempts to minimise his culpability for these offences are not to his credit.
[99] Exhibit R1, 221.
[100] Ibid 164.
In relation to the evidence about family violence, the Tribunal found several aspects of the Applicant’s and Ms AB’s evidence implausible and unpersuasive. It is perhaps understandable Ms AB would give evidence favourable to the Applicant, but persistent blaming of herself for his conduct suggested a preparedness to say anything to advance his interests. She often answered questions with certainty, only to change her responses when other material was presented. Given her claim that frequent intoxication has dimmed her memories, the Tribunal has significant concerns about the extent to which Ms AB’s testimony about family violence can be relied upon.
Aspects of the Applicant’s evidence about the nature and extent of his conduct against Ms AB was avoidant. The claims that his conduct against Ms AB was ‘never threatening,’ he only acted in self-defence, and Ms AB was not put in fear by his behaviour, suggested a lack of insight and tendency to minimise his conduct. On one occasion, for example, Police observed the Applicant was ‘quick to anger, verbally abusing and swearing at [Ms AB]…walked towards [Ms AB] raising his hand in a clenched fist and swinging it in an aggressive motion towards her face’.[101] On another occasion, police observed him on CCTV standing over Ms AB and poking her in the face. The Applicant’s claim that Ms AB was not fearful of his conduct is contradicted by the multiple occasions she called for police protection and the DVOs subsequently taken out, including one that is in effect until 2023.
[101] Ibid 148.
Origins of alcohol abuse and offending
The Tribunal found the Applicant’s evidence regarding the origins of his alcohol abuse and offending to be inconsistent and unpersuasive. He claimed to have ‘never’ been ‘a violent person before 2015’.[102] If his written evidence dated 29 January 2018 is to be believed, the ‘bad times’ commenced following a telephone call from his mother in August 2015, informing him about his father’s sudden death. He previously said this was the catalyst ‘From that Day Onwards’ (sic) for his alcohol abuse and arguments with Ms AB.[103] This narrative is supported by a letter from Ms AB dated 20 July 2020 and during her consultation with Mr Watson-Munro, when she claimed the death of the Applicant’s father in August 2015 precipitated their dependence on alcohol.[104] One of the Applicant’s uncles and a former employer have similarly linked his alcohol dependency to his father’s death in 2015.[105] Prior to the news of his father’s death, the Applicant claimed to have been ‘a very happy person with no convictions or nothing in my life…’ This version of events, however, does not explain the Applicant’s offending between 2012 and 2014, prior to receiving the news about his father’s death, including three breaches of domestic violence orders.
[102] Ibid.
[103] Exhibit R1, 221.
[104] Ibid 226.
[105] Ibid 228; 230.
It was during the Applicant’s consultation with psychologist Mr Watson-Munro in December 2020, that he first raised the death of two uncles prior to his father’s death as also contextually relevant to his alcohol abuse and ‘significant conflict’ with Ms AB:[106]
He reported that his father's untimely death had a significant impact upon his mood, which was further compounded by the deaths of two paternal uncles in short succession prior to his father's passing. They were evidently killed in a motor vehicle accident…two years preceding the death of his father… As a further relevant consideration, another uncle evidently died in December 2019. [The Applicant] stated that he had no treatment for his grief but recognises that this is required, although his mood now has stabilised somewhat…[107]
[106] Exhibit A1, 15-16.
[107] Ibid 15-16.
The Applicant repeated this new claim about his uncles’ death in his oral evidence, recent statement,[108] and during his consultation with Dr Yoxall:
[The Applicant’s] father…died in Papua New Guinea, from a sudden cardiac arrest in 2015. He was only 50 years old. [The Applicant] said that he had struggled with his mental and physical health after losing two brothers ([The Applicant’s] uncles) in a motor vehicle accident in the previous year.
[The Applicant] said that he was significantly impacted by the death of his uncles, particularly given that one of the uncles was only 1 year older than him and had been raised with [The Applicant] as a brother.[109]
[108] Exhibit A1, 107.
[109] Ibid, 37.

There is no independent corroboration of the death of the Applicant’s uncles. The absence of any reference to their deaths prior to December 2020 also raises concerns about the veracity of the Applicant’s claims that their deaths were the catalyst for his abuse of alcohol and offending behaviour.
Duration of abstinence from alcohol and arguments with Ms AB
The claims made by the Applicant and Ms AB about how long they have abstained from alcohol are inconsistent and unreliable for the following reasons:
(a)The Applicant claimed in a letter to the Department dated 29 January 2018,[110] that he was alcohol free for the previous ten-and-a-half months (approximately mid-March 2017). During his consultation with Mr Watson-Munro on 14 December 2020, however, he claimed that he ‘has not had alcohol’ since attending ATODS in 2018.[111] Mr Watson-Munro also noted Ms AB told him the Applicant ‘stopped drinking in about April 2018’.[112] In the Applicant’s Statement of Facts, Issues and Contentions (ASFIC) dated 6 December 2021, it was claimed the Applicant has not consumed alcohol since May 2018.[113] During the 2 December 2021 consultation with Dr Yoxall, the Applicant instead referred to abstinence from alcohol since November 2019. The Applicant agreed during his oral evidence that the claims about abstinence prior to November 2019 were untrue. This constitutes false or misleading claims in an official context and detracts from his credibility. The Applicant’s consumption of alcohol during times he claimed to be abstinent, is clearly evident from a police report dated 4 November 2018, which the Applicant does not dispute, stating he returned a reading of 0.204 grams of alcohol in 210 litres of breath, which is over four times the legal limit.[114] A subsequent police report dated 9 November 2019[115] stated that the Applicant and Ms AB were drinking alcohol together and an argument developed after the Applicant stopped at a bottle shop to purchase more alcohol, which Ms AB suspected he intended to ‘drink with his mates’;
(b)Ms AB previously stated on 16 April 2018 that she was ‘not drinking alcohol anymore.’[116] In her latest statement dated 10 November 2021 she claims it has been ‘almost two years since [she] shared a drink’ with the Applicant,[117] which dates to late 2019. During oral evidence, however, she referred to consuming alcohol on several occasions since the Applicant’s detention in late 2020.
[110] Exhibit R1, 221 (last paragraph).
[111] Exhibit A4, 5; 8.
[112] Ibid 6.
[113] ASFIC 5 [7]; 6 [15].
[114] Exhibit R1, 347.
[115] Ibid 315.
[116] Ibid 225.
[117] Exhibit A2, 109.
The significant differences over time in the Applicant’s and Ms AB’s past claims about abstinence from alcohol is why the Tribunal places little weight on their claims alone. There is, frankly, no reliable basis on their self-reported claims to ground a finding about how long they have abstained from alcohol. There is reliable evidence to conclude their past claims about this have been unreliable. That said, there is no evidence to suggest the Applicant has consumed alcohol since entering immigration detention in November 2020, despite the availability of illicit alcohol in custodial settings.
Counselling and rehabilitation
The evidence about the beneficial effects of past alcohol counselling for the Applicant has varied over time:
(a)The Applicant previously tendered a letter from psychologist Ms Jackie Coetzee dated 24 October 2018, stating she was teaching him ‘anger management skills’.[118] He also tendered a letter from ATODS to the effect that he completed an initial assessment in late 2018 and was proceeding to ‘case management’;[119]
(b)In a statement dated 20 July 2020, Ms AB stated that after the Applicant ‘attended counselling with Anger management and attended ATODS he has become the person I have first fallen in love with. He has come out of his depression I am very happy and proud of the man he is now’;[120]
(c)The Applicant’s uncle previously stated that after the Applicant’s offending in 2018 ‘he has been getting help from…(ATODS), including counselling for Anger Management. This has helped him so much in getting his life back on track. [The Applicant] is now a responsible, committed, and changed person, dedicating most of his time to his family. In the last two years, he has changed so much…’;[121]
(d)The Applicant’s employer commended him in October 2018 for making ‘appointments with a psychologist to work through his anger management issues and ATODS for his dependence on alcohol’.[122]
[118] Ibid 232.
[119] Ibid 233.
[120] Ibid 227.
[121] Ibid 228.
[122] Ibid 230.
In oral evidence at the present hearing, the Applicant downplayed the effectiveness of past counselling and rehabilitative efforts, stating he consistently relapsed; and it is only since entering immigration detention that he has made meaningful rehabilitative progress. Ms AB’s claims about counselling are uncorroborated by expert evidence and she could not recall the name of the person she was attending counselling with. The references to her progress in this regard by Mr Watson-Munro and Dr Yoxall are entirely based on her self-reported claims.
Expert evidence
Mr Watson-Munro
Mr Watson-Munro’s assessment is overly reliant on the Applicant’s and Ms AB’s self-reported claims. An example is his assessment that the Applicant’s alcohol abuse was in ‘Full Remission’ because ‘significantly…he has not had alcohol since…[receiving]… ‘treatment’ [in 2018][123]…This was corroborated through discussions with his wife’.[124] Mr Watson-Munro also erroneously noted Ms AB had ‘ceased drinking as well’. He concluded that the Applicant’s abstinence since 2018 meant ‘his judgement and impulse control and anger management, appear to have been restored’.[125] It is clear Mr Watson-Munro did not have access to the police reports from mid-2018 to November 2019, which conflict with the Applicant’s claims of sobriety. Other aspects of Mr Watson-Munro’s report that come across as overly reliant on the Applicant’s claims include the following:
(a)Mr Watson-Munro stated that the Hare Psychopathy Checklist used to test recidivism risk has a maximum score of 40 and remarks that the Applicant’s ‘score is unremarkable,’ but without ever stating what score was achieved.[126] In that context, the assessment that the Applicant’s recidivism risk is ‘trending to low,’ is overly vague and of limited probative value. This is particularly so given the false premise on which the assessment is partly based, namely that the Applicant was in ‘Full Remission’ from alcohol abuse since ‘treatment’ in early 2018.[127]
(b)No reference is made in Mr Watson-Munro’s report as to why the claim about the death of the Applicant’s two uncles, which was presented as contextually relevant to his alcohol abuse and offending, was not previously raised in any material prior to their consultation. Yet he accepted this claim in concluding: ‘It would appear that his offending behaviour, which resulted in him being incarcerated in the past, essentially arose against the backdrop of escalating depression and anxiety, following the tragic death of two uncles in a motor vehicle accident in about 2013/2014, followed by the unexpected death of his father in August 2015...’[128]
(c)Mr Watson-Munro refers to the Applicant’s ‘unravelling…marriage’ as compounding his ‘sense of despair,’[129] but provides no further details of this in his report.
(d)Mr Watson-Munro noted Ms AB’s claim she was suffering depression, was prescribed Zoloft, complained about ‘some post natal depression’, and further progress would be made when she ‘resumes psychotherapy’.[130] No expert medical corroboration is evident for these self-reported claims.
[123] Exhibit A4, 17-18; 20.
[124] Ibid 20.
[125] Ibid 20-21.
[126] Ibid 18.
[127] Ibid 17-18.
[128] Ibid 20.
[129] Ibid 16.
[130] Ibid 19.
Dr Yoxall
Dr Yoxall’s evidence is overly reliant on the Applicant’s and Ms AB’s self-reported claims. The Tribunal’s concerns include:
(a)Dr Yoxall’s summary of the Applicant’s ‘Documentation of Offending’[131] ends on 6 October 2018 and makes no reference to his drink-driving offences and several other police reports regarding family violence against Ms AB in the 13 months after October 2018.
(b)The Applicant continued to falsely claim to Dr Yoxall that his 2012 offences of unlawfully entering a person’s yard and car were ‘more of a situation of him mistakenly thinking that the car belonged to someone that it didn’t, rather than an incident of a deliberate attempt to steal’.[132] For the reasons previously discussed, the Tribunal does not accept this.
(c)Dr Yoxall stated there is an absence of relationship problems in her current assessment of the Applicant, because he reported that the relationship with Ms AB ‘has been relatively stable now for 2 years’, and Dr Yoxall concluded ‘there have not been significant relationship problems in the last 12 months’.[133] The Tribunal does not accept that assessment in circumstances where there is a prolonged history of relationship problems between the Applicant and Ms AB, including in Mr Watson-Munro’s report and in the police reports up to 2019. The absence of relationship problems during the preceding 12 months more convincingly results from the Applicant being taken into immigration detention in November 2020.
(d)Dr Yoxall assesses the Applicant has no ‘discernible history of…problems with anger.’[134] The Tribunal does not accept this assessment, which conflicts with other persuasive evidence. This includes a trend of aggressive conduct against Ms AB as highlighted in multiple police reports, including conduct that police observed after responding to calls for assistance. Mr Watson-Munro has previously stated the Applicant saw a psychologist ‘on two occasions for anger management and impulse control issues’[135] and refers to the promise the Applicant made to Ms AB to ‘get help with his anger management issues’. In his most recent statement, the Applicant recognises his past ‘anger management issues’ and refers to recent completion of online anger management, domestic violence, and drug and alcohol courses.[136] He also told Dr Yoxall during their consultation ‘he was more reactive and more easily angered’ when intoxicated.[137]
(e)Dr Yoxall refers to the Applicant and Ms AB attending counselling in the community soon after the last incident of domestic violence in November 2019,[138] which Ms AB has since continued.[139] But there is no independent corroboration of this claim and Dr Yoxall was not aware of which practitioner Ms AB was purportedly seeing.
[131] Exhibit A11, 41-42.
[132] Ibid 43.
[133] Ibid 59.
[134] Ibid.
[135] Ibid 17.
[136] Ibid 45; 86-91.
[137] Ibid 40.
[138] Ibid 45.
[139] Ibid 54 [9].
Evidence of other friends
In considering references from close friends and family, the Tribunal is mindful they can often provide the best possible perspectives about an Applicant’s conduct which other members of society might consider unacceptable. Care must therefore be taken about the weight placed on such references, particularly from those with only a limited understanding of the Applicant’s past conduct, and when their perspectives are not tested under cross-examination.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Failure of the character test arises as a matter of law;[140] and the Applicant does not contest he fails it. The evidence discloses he was sentenced to terms of imprisonment following three contraventions of domestic violence orders. Notwithstanding the suspended nature of his October 2018 sentence,[141] he has received two or more sentences of imprisonment collectively exceeding 12 months. Therefore, the Tribunal finds that he fails the character test: s 501(6)(a) of the Act, read in conjunction with s 501(7)(d).
[140] Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63].
[141] Te v Minister for Immigration and Multicultural and Ethnic Affairs (1999) 88 FCR 264 at 272; Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113 [114] (Moore, Rares and Nicholas JJ)).
ISSUE TO BE RESOLVED
Given the Applicant fails the character test, the Tribunal must decide whether to exercise the discretion granted by s 501(1) of the Act to refuse the visa, after applying the relevant primary and other considerations in the Direction to the specific circumstances of his case.
PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The nature and seriousness of the conduct
The Applicant was found guilty of trespass and unlawful entry of a vehicle in 2013, for which no convictions were recorded and a fine issued. There has been no repeat of similar offences since. For the reasons previously discussed, however, the Tribunal does not accept the Applicant’s explanation that this offending arose from an ‘honest mistake.’
The repeated nature of the Applicant’s drink-driving reflects a reckless indifference for the safety of other road users, which has the potential to cause death or serious injury.[142]
[142] Australian Government Department of Infrastructure, Transport, Regional Development and Communications, Road Deaths Australia (August 2021).
The Applicant was found guilty of three charges of contravening a domestic violence order in 2015, with the court deciding to impose a six-month term of probation, but not to record convictions. Unfortunately, the Applicant was not dissuaded by the court’s non-custodial penalties and his offending continued. The court subsequently imposed custodial sentences, which are the most serious sanction available.[143]
[143] See for example: Sentencing Advisory Council, ‘Imprisonment,” <
The Tribunal rejects the Applicant’s claims that he ‘has never been convicted of a violent offence, only of contravention of a domestic violence order’,[144] and that the nature of the interactions between him and Ms AB ‘defy the standard definition of family violence’. The preponderance of the Applicant’s offending and other objectionable conduct relates to repeated contraventions of family violence orders to protect Ms AB, drink-driving, and breaching conditional liberty. Ms AB said he was verbally abusive towards her and the Applicant conceded he was verbally abusive and threw and broke things during arguments between them. He also pushed Ms AB, and his aggressive and abusive conduct was personally observed by police. This conduct collectively constitutes family violence.
[144] ASFIC 5 [8].
The Applicant has offended frequently since December 2012, receiving increasingly severe punishments including several terms of imprisonment. This reflects an upward trend of serious offences: cl 8.1.1(1)(d). The cumulative effect of the Applicant’s repeat offending has imposed costs on the community and reflects a persistent lack of respect for Australia’s law-enforcement framework: cl 8.1.1(1)(e).
The Applicant’s overall offending is very serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
This aspect of the Direction requires the Tribunal to assess the risk the Applicant poses to the Australian community in the event he reoffends, taking into consideration both the nature of any harm and its probability. The High Court’s reasoning in Minister for Immigration and Ethic Affairs v Guo (1997) 191 CLR 559 (Guo) is often cited for its relevance to administrative decision-making and the ‘inter-relationship between the establishment of the occurrence of past events and the evaluation of the prospect that an event might occur in the future’. The majority of the Court observed that past events ‘are not a certain guide’, and, depending on circumstances, the probability of an event occurring could be so low as to be ‘safely disregarded’, or at the other extreme ‘may border on certainty’. The majority also observed there are a number of factors arising in making such evaluations, and that it is ‘ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed about past events’.[145]
[145] Guo at 574-575.
In Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, Katzmann J reasoned at [59] that the ‘risk of harm posed by the conduct in which the person has engaged in is obviously relevant to the risk that he might in the future engage in it.’
In Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595 at [78], Mortimer J reasoned that:
…[t]he nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending.
In cases where there is a criminal record, an adverse inference can more reliably be drawn. Proven offences also enable a decision-maker to consider the risk of re-offending or harm arising more accurately from a repetition of such conduct. In Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313, Branson J held that a conviction was ‘strong prima facie evidence of the facts’.[146]
[146] At [43].
In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033 [74], Rares J reasoned that it is not just criminal conduct but all past conduct that may be relevant to assessments about character and future risk or recidivism.
Offending and recidivism risk
The Applicant previously claimed he changed his approach to alcohol since 2018: ‘My risk of reoffending in the future is very low to non becaus I do not drink and Abuse alcohol Like I used to since 2018 (sic).’[147] For the reasons previously expressed, claims about addressing his alcohol abuse since 2018 are untrue,[148] including claims he made to Mr Watson-Munro:
The applicant contends that after a pub incident where he and his wife were celebrating their daughter’s birthday in May 2018 and they both drank too much and argued, that he promised his wife that he would get help with his alcohol and anger management issues, and since then has not consumed alcohol or had any arguments or fights with his wife.[149]
[147] Exhibit R1, 217 [Q10].
[148] Exhibit A4, 5; 17.
[149] ASFIC 7 [16].
Mr Northam submitted during the hearing that ‘since 2018’ the trend in the Applicant’s behaviour has been ‘towards recovery and rehabilitation’, and that he has reformed since 2018. It was also submitted that in 2019 the Applicant and Ms AB ‘grasped or began to grasp’ the ‘dangers of drinking’.
For the reasons discussed earlier, the Tribunal does not accept the Applicant’s past claims to the Department, the two psychologists who assessed him, and to his lawyer, that he was abstinent from alcohol variously since early 2017 or May 2018, had learned his lesson, and turned the corner towards a law-abiding life. The Tribunal instead accepts the accuracy of the police reports dated between 4 November 2018 and 9 November 2019, which refer to the Applicant being arrested while sleeping in the driver’s seat of his car and registering a reading of 0.204 grams of alcohol in 210 litres of breath,[150] arguing with Ms AB in a public place, driving while disqualified,[151] and drinking alcohol with Ms AB on 9 November 2019.[152] In her most recent statement, Ms AB conceded she has consumed alcohol on several occasions since the Applicant was taken into detention. It is also noteworthy that the Applicant has been in immigration detention for about half the time of his claimed abstinence; and in the year prior to that was subject to a visa refusal process. These are entirely different contextual circumstances to those during which his alcohol abuse and offending occurred.
[150] Exhibit R1, 347.
[151] Ibid 351.
[152] Ibid 315.

Mr Watson-Munro stated that when drinking, the Applicant experiences ‘impaired judgment referable to consequential thinking and impulse control’.[153] He also referred to the Applicant as ‘highly anxious’ during his past alcohol abuse[154] and noted the ‘backdrop of additional financial stress’.[155]
[153] Exhibit A4, 16.
[154] Ibid.
[155] Ibid 21.
The Applicant agrees that he remains subject to a domestic violence order until July 2023.
It is submitted on the Applicant’s behalf that he has received favourable risk assessments since entering immigration detention in late 2020:
…multiple mental health reports prepared by detention centre medical personnel which consistently note “Low” regarding the applicant and the assessment of any risk he poses to others.[156]
[156] Applicant’s reply dated 23 December 2021, 2 [2].
This submission refers to IHMS reports,[157] which include several notations by mental health staff that the Applicant does not pose a risk of harm to himself, or others, or from others. There is no evidence about how this assessment was made.
[157] Exhibit A5.
Remorse and rehabilitation
Mr Watson-Munro observed in 2020 that the Applicant’s treatment to date was ‘minimal’ and noted two past consultations with psychologist Ms Jackie Coetzee ‘for anger management and impulse control issues’ in 2018.[158] The Applicant told Mr Watson-Munro he planned to ‘undertake treatment’ if released. Mr Watson-Munro suggested he would benefit from ‘Dialectical Behaviour Therapy, which has been demonstrated to be highly effective in terms of dealing with Mood and Substance Use Disorders’.[159] The Applicant’s evidence is that he has not yet undergone this therapy.
[158] Exhibit A4, 17.
[159] Ibid 21.
The Applicant previously referred to ‘getting help with counselling,’ attendance at ATODS, and successfully completing ‘6 months probation’ following his offending in 2015.[160] He claimed to be ‘doing great’ until the car he received from his father’s life insurance was ‘trashed’ by a cousin.[161] He said this caused further arguments with Ms AB. After spending 113 days in custody in late 2016 and early 2017, he also claimed to have received ‘counselling and learning a lot to help myself when facing similar situations in the future’.[162] The Applicant referred to counselling after his most recent domestic violence in 2018 as helping him become a better person, with no intention of repeating his past violence.[163] He claimed at that time to have been alcohol free for the previous ten-and-a-half months, which, based on the date of the letter, meant he had been abstinent since approximately mid-March 2017. For the reasons discussed earlier, the Tribunal does not accept the Applicant was truthful about this. He may have previously tried to reduce his alcohol intake or even gone for significant periods without consuming alcohol, but has consistently relapsed notwithstanding past supports, particularly when stressed, depressed, and living with Ms AB. The persistent nature of his alcohol abuse, notwithstanding comparatively short periods of abstinence in custodial settings, does not inspire confidence that he has overcome his alcohol problem.
[160] Exhibit R1, 221.
[161] Ibid.
[162] Ibid.
[163] Ibid
Protective factors and future aspirations
Mr Watson-Munro noted the Applicant’s claim more than a year ago that ‘his job is open to him,’[164] although there is no evidence to corroborate this continues to the present day. The Applicant instead relies on an offer of work as carer for a friend. This is conditional on an application yet to be made to Centrelink for Carer’s Allowance.
[164] Exhibit A4, 14.
The Tribunal has considered the material in evidence relating to the Applicant’s rehabilitative claims[165] and the role he currently plays on the Detainee Consultative Committee.
[165] Exhibit A7; Exhibit A8.
Tribunal findings relating to recidivism risk
The potential harm from a repeat of the Applicant’s offending is very serious, with consequences including serious physical or psychological injury or death. This is regardless of whether there is a repeat of family violence or he again drives while intoxicated. The community’s tolerance for such offending by non-citizens is very low.
Multiple domestic violence orders were taken out against the Applicant to protect AM since December 2014. The first was only five months after their marriage and pre-dates his father’s death, which he previously claimed precipitated his spiral into alcohol abuse. There is an unresolved inconsistency in the Applicant’s evidence about this. He and others previously claimed the death of his father in 2015 was where it ‘all started.’[166] In late 2020, he invoked the death of two uncles for the first time as causing his alcohol abuse prior to his father’s death, which worsened after his father died. Irrespective of what caused the Applicant’s alcohol abuse, the unexpected death of a loved one is no excuse for persistent domestic violence and drink driving.
[166] Exhibit R1, 217 [Q10].
The Tribunal does not accept the Applicant’s claim that he was not a violent person prior to his father’s death in 2015. That claim is inconsistent with the domestic violence he committed prior to this time. It is of concern he was not dissuaded by a finding of guilt without conviction and probation for his first domestic violence offence in 2014, which was followed by more serious offending. He was similarly not dissuaded by multiple DVOs being taken out against him.
The Applicant’s evidence about the efficacy of counselling has varied over time. He previously claimed this helped him become a better person who would not repeat past conduct.[167] In the present matter, he claims past counselling opportunities were inadequate and did not prevent alcohol relapses. He says it is only the rehabilitation undertaken since entering immigration detention in late 2020 that has resulted in meaningful changes.
[167] Ibid.
The Applicant’s failure to respond to past rehabilitative opportunities raises serious concerns about his capacity to change the course of his life if released. His claimed rehabilitation since entering detention is very recent and untested; particularly in the context of a resumed relationship with Ms AB. The Tribunal holds significant concerns about the persistently dysfunctional and abusive relationship between the Applicant and Ms AB, which was characterised by persistent alcohol abuse and friction. The Applicant’s evidence, and that of Ms AB at the present hearing, does not inspire confidence they have ‘rebuilt a functional and stable relationship’.[168] This is particularly so, given Dr Yoxall’s evidence that Ms AB was still bringing ‘dysfunctional ideas’ to the relationship, and absence of any corroboration for her claimed counselling and treatment. Moreover, Dr Yoxall stated that when one person blames themselves for the other person’s domestic violence that can adversely ‘influence the dynamic of the relationship.’
[168] Exhibit A11, 26.
In relation to the Applicant’s reliance on the IHMS reports as extending to his recidivism risk in the community, the Tribunal does not accept this. There is no evidence the IHMS reports are other than an assessment about the risk the Applicant poses to himself, to other detainees, or from other detainees, in that setting. The Tribunal accepts, however, there is no evidence the Applicant has taken illicit drugs or alcohol, or been other than a compliant detainee, notwithstanding the availability of illicit substances in custodial settings. That said, any abstinence in a controlled and supervised custodial setting is not the same as abstinence while at liberty in the community and living with Ms AB, where the Applicant’s resolve has been repeatedly found wanting.
In terms of Mr Watson-Munro’s report, the Tribunal places less weight on it because of his over-reliance on the Applicant’s and Ms AB’s false abstinence claims. This resulted in Mr Watson-Munro’s erroneous conclusion about the Applicant’s restored ‘judgement and impulse control and anger management.’ Mr Watson-Munro’s report also does not encompass consideration of police reports from mid-2018 to November 2019, which conflict with the Applicant’s sobriety claims, and are preferred by the Tribunal.
The Tribunal places less weight on Dr Yoxall’s report because:
(a)Dr Yoxall’s assessment in the ‘Details of Offending’ at section 5.1 of her report ends on 6 October 2018 and fails to include references to the Applicant’s drink-driving offences and other police reports in the following 13 months.
(b)Dr Yoxall’s report contains what the Tribunal considers is an overly optimistic assessment of the Applicant’s anger issues, relationship with Ms AB, and protective factors like rehabilitative progress and reconnection with his religious beliefs, which are largely based on self-reported claims. The latter, for example, is unsupported by evidence from any religious minister or organisation. Ms AB’s claims about counselling and rehabilitation are similarly uncorroborated.
(c)Dr Yoxall was unaware of the Applicant’s previous unsuccessful rehabilitative efforts before entering immigration detention, or that Ms AB consumed alcohol on several occasions since the Applicant’s detention. This is inconsistent with the references in Dr Yoxall’s report to Ms AB having ‘ceased all alcohol use’ in November 2019.
(d)Dr Yoxall’s evidence about how some actuarial ratings were applied raises concerns about the accuracy of her overall assessment. For example, notwithstanding the past discord and dysfunction in the Applicant’s relationship with Ms AB, an adverse rating is not given for relationship problems, because Dr Yoxall said none were evident during the past 12 months. The Applicant was in immigration detention for the past 12 months, so it is perhaps unsurprising past relationship problems are not apprent. The Tribunal remains concerned about the re-emergence of these persistent problems if the Applicant resumes his relationship with Ms AB.
(e)An adverse rating is not given by Dr Yoxall for the criterion ‘dissatisfaction with marital situation’, because Dr Yoxall considers the current level of ‘intimacy and emotional stability’ between the Applicant and Ms AB is ‘optimal compared to previous periods of their life’. Again, this seems limited to a relatively brief period immediately prior to and during the Applicant’s immigration detention, compared to many earlier years of discord and dysfunction.
(f)No adverse assessment is provided for the rating ‘high crime neighbourhood’ because Dr Yoxall said any uncertainty about this is not counted against the person. No adverse assessment is also allocated to companion scores, which appears inconsistent with the evidence of the Applicant and Ms AB, that he was drinking and spending time with negative peers who did not have his best interests at heart.
(g)No adverse assessment is allocated to ‘poor attitude towards sentence’, despite the repeat nature of the Applicant’s offending and breaches of conditional liberty. Dr Yoxall explained this rating was a ‘snapshot in time’, recording the Applicant’s attitude now and not in the past. Again, the Tribunal considers more weight should be placed on the Applicant’s actual conduct over many years, compared to his current oral assurances about obeying the law while detained and when his ability to remain in Australia is at significant risk.
(h)In her submissions about impact on children, Dr Yoxall was unaware of the arrangements between Ms AB and her former partner in coordinating shared 50% - 50% care arrangements for their children, and relied on the ‘psychological literature and theory,’ rather than the specific interests of the minor children in this matter.
The repeated and serious nature of the Applicant’s domestic violence offending, drink-driving, the ineffectiveness of past rehabilitative efforts, and the Court’s imposition of prolonged conditional liberty arrangements until July 2023, are such that the Tribunal has little confidence in the Applicant’s latest assurances that he will not abuse alcohol and remain law-abiding if released. That view is only strengthened by concerns about Ms AB’s evidence and the uncorroborated nature of her counselling and rehabilitative claims. The Tribunal is unpersuaded that the relationship between the Applicant and Ms AB will proceed on a much-improved basis if he returns to the family home. The Tribunal is also concerned about Ms AB’s evidence that she is responsible for the family violence perpetrated against her. The Tribunal does not accept this, given that the Applicant had other alternatives, such as walking away instead of responding with abuse and aggression. This, after all, is what he previously claimed to have learned during six months of counselling in 2018.
The absence of any evidence to corroborate Ms AB’s counselling claims, coupled with her concession that she has consumed alcohol since the Applicant’s detention, contrary to the claims made to expert witnesses, gives rise to serious concerns. The Applicant would be returning to the same sort of life they previously shared, with aspirations to return to fly-in-fly-out employment, which has the potential to enliven similar stressors between them.
In terms of the Applicant’s rehabilitative claims while in immigration detention since November 2020, this is very recent when compared to the much longer period he abused alcohol and offended. Moreover, the continuing counselling that Ms AB and the Applicant refer to appears aspirational at best. It is clear from Ms AB’s evidence that her discussions with the Applicant about rehabilitation are superficial, and she has provided no evidence to corroborate the beneficial counselling she claims to have undertaken.
The Tribunal is unconvinced that the protective factors invoked by the Applicant will be any more effective in the future than in the past. Despite stable accommodation, employment, the interests of his children, support from family and friends, a desire to make a permanent life for himself in Australia and rehabilitative opportunities, the Applicant engaged in persistent alcohol abuse and offending. He constitutes at least a moderate risk of recidivism. Given the very serious nature of the Applicant’s past offending and the harm such conduct can cause, coupled with a moderate and unacceptable recidivism risk, this primary consideration weighs very substantially against exercising the discretion in his favour.
FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
Family violence
The parties dispute whether the Applicant’s convictions are for violent offences. Mr Northam contends the Applicant engaged in ‘negative behaviour’ while alcohol-affected, resulting in ‘heated and angry’[169] arguments with Ms AB, but has ‘never been convicted of a violent offence, only of contravention of a domestic violence order’.[170] Mr Northam submitted that ‘acts of instigation by both parties ratcheted up the overall level of antagonism’.
[169] ASFIC, 4 [4].
[170] ASFIC, 6 [8].
Mr Cunyghame submitted that the Tribunal should have regard to all the evidence regarding the Applicant’s family violence and not just conduct resulting in convictions.
The Tribunal rejects Ms AB’s claims that she is at fault for the Applicant’s conduct, he ‘was never a threat to [her] or [their] children’,[171] and has ‘never been violent’ towards her.[172] Her evidence significantly over-states her own culpability.
[171] Exhibit A2, 109.
[172] Ibid 110.
The Tribunal rejects the Applicant’s claim that his convictions are not for violent offences and adopts the reasoning about family violence in Healey and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4309. Irrespective of whether Ms AB may have taunted or goaded the Applicant during arguments, or embellished her account of what occurred to police, or refused to cooperate after police attendances, or that the Applicant was ‘never charged with any physical crimes’, he had other choices, such as walking away. Instead, he threw glasses or bottles at a wall, television and sliding door, verbally abused Ms AB, and was observed by police as being ‘quick to anger, verbally abusing and swearing at [Ms AB]…[and]…walked towards [Ms AB] raising his hand in a clenched fist and swinging it in an aggressive motion towards her face’. Ms AB was also observed by police to have an injury that was ‘fresh and bleeding,’ and was ‘very upset and traumatised’. The Applicant has unpersuasively explained red marks on Ms AB’s neck as resulting from when he pushed her away, and a scratch on her face as accidentally caused while trying to recover his credit card. In relation to the latter, the Tribunal prefers the police report referring to their viewing of CCTV footage, which showed the Applicant standing over Ms AB and poking her face. The Tribunal does not accept Ms AB’s evidence that this incident looked ‘more extreme’ than it was.
The fact Ms AB sought police attendance on multiple occasions and DVOs against the Applicant, the latest of which does not expire until 2023, is not adequately explained by her claims that this was solely attention-seeking behaviour by her. There are multiple references in evidence to her being scared, upset, traumatised, or injured. Moreover, the Applicant was not dissuaded by DVOs from engaging in similar objectionable conduct.
In terms of the probative weight to be given to police records, this material routinely forms part of the evidence in visa refusal or cancellation cases. The documents are usually obtained under summons and their value is frequently tested during questioning. The Tribunal is not bound by the rules of evidence[173] and although police records may not have been substantiated in court, there is nothing preventing the Tribunal from considering them. Witnesses must be afforded procedural fairness, however, by having the records put to them for response. It is not a necessary precondition of procedural fairness to require the authors of police records to be cross-examined, so that weight can be placed on these reports.[174]
[173] AAT Act, s 33(1)(c).
[174] Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1106 [53], [69] (Anderson J).
It is a noteworthy feature of this case that the Applicant and Ms AB were frequently unable to recall details about the police attendances and reports, claiming to have been too intoxicated. The Tribunal considers there is no discernible motive for the police officers who raised these reports to have recorded other than what they saw or was conveyed to them by the people they interviewed. Both witnesses accepted the accuracy of police reports if the conduct was directly observed by police. The veracity of the material in these reports is reinforced by the recurringly consistent themes of intoxication, abuse, anger or aggressive and violent conduct, police being called, and DVOs being taken out. It is also noteworthy that multiple officers authored these reports over many years. That said, absent an Applicant’s or victim’s agreement that police reports not leading to charges or convictions are accurate or likely to be accurate, they must be treated with caution.
As Kenny J has pointed out, the Tribunal should treat ‘police service files’ carefully and acknowledge the ‘limits to the material before it that was said to evidence such conduct, including its cogency and reliability’.[175] Anastassiou J has similarly expressed the need for care about ‘reaching a view that criminal conduct has occurred, absent a prosecution and conviction’.[176] In the present matter, the Tribunal often found the police reports more persuasive than the recollections of the Applicant and Ms AB. That said, and out of an abundance of caution, the Tribunal has only given weight to police records that either resulted in a conviction, or where the Applicant conceded his involvement or likely involvement, or where he accepted that police accurately recorded what they themselves observed. The prejudicial impact of relying on police reports that are explicitly denied and untested in court, or not corroborated by other probative evidence, is too great.
[175] CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101, [98]-[100].
[176] QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394, [74], citing Brown v Minister for Immigration and Citizenship [2009] 112 ALD 67, [85] (Edmonds J) and echoed by the Full Court on appeal in Brown v Minister for Immigration and Citizenship [2010] 183 FCR 113, [128] (Nicholas J, with whom Moore and Rares JJ agreed).

The Tribunal has no reason to doubt the contemporaneous police records about what they personally observed during these incidents. The Tribunal is satisfied that the Applicant has committed repeated acts of family violence against Ms AB. This primary consideration weighs substantially against his application.
BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
The Applicant has a five-year-old[177] and one-year-old[178] biological child with Ms AB. He is also stepfather to Ms AB’s two children from a previous relationship who are nine and 13 years of age.[179] Custody of the two older children is shared by Ms AB and her former partner. In that respect, the interests of the Applicant’s younger biological children can be distinguished from those of his stepchildren.
[177] Exhibit R1, 242.
[178] Ibid 244.
[179] Ibid 249-250.
The Tribunal has considered the evidence from the Applicant, Ms AB, and others about the Applicant’s relationship with the children, who he continues to communicate with frequently. In respect of the influence of alcohol in the home and frequent incidents between the Applicant and Ms AB, the Tribunal has also considered Mr Northam’s submission that the ‘children weren’t direct physical victims’ of the Applicant’s offending, and the expert evidence relating to them. This includes the written and oral evidence of Dr Yoxall, and documentary evidence of Mr Watson-Munro.
The evidence discloses that, despite being in detention, the Applicant has continued to play a prominent parental role in his children’s lives. The Tribunal has no doubt his relationship with them is close and loving. His absence from their lives while previously imprisoned, or subject to DVOs affecting contact with his family, or while in immigration detention, has imposed an increased burden on Ms AB. It is acknowledged, however, that care of the two older children is shared with their biological father. Ms AB’s capacity to continue caring for the children is also affected by, to some degree, a mental health condition she suffers, which the Tribunal infers from Dr Esguerra’s brief letter.[180]
[180] Exhibit A9.
The Tribunal accepts that if the Applicant is repatriated to PNG, the adverse emotional and financial impact on Ms AB and the children will be exacerbated because she does not intend to leave Australia. That is a personal but understandably difficult decision, which she says is founded on greater opportunities for herself and the children in Australia. It is also claimed that the biological father of the two older children is unlikely to accept them leaving Australia.
Although contact between the Applicant and the children could continue by video calls as it currently does, and perhaps visits to PNG, that would be a poor substitute for the close contact the family would enjoy if he remained here. The children would be adversely affected by losing that close contact with the Applicant and his emotional and perhaps financial support. The latter depends on the Applicant’s ability to find work.
The Tribunal finds that visa refusal is not in the children’s best interests and this primary consideration weighs substantially in favour of setting aside the reviewable decision.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Clause 8.4(1) of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Clause 8.4(2) of the Direction states that visa cancellation, refusal or non-revocation may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. Serious character concerns are raised because of conduct in Australia or elsewhere, of the following kind:
(a) acts of family violence;
(b) …;
...
Clause 8.4(4) states that this consideration is ‘about the expectations of the Australian community as a whole’ and directs decision-makers to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in the particular case.
Clause 8.4(4) of the Direction correlates with the reasoning in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (FYBR), albeit under a different direction. Notwithstanding the different pathways in judicial reasoning, the plurality in FYBR held that ‘Expectations of the Australian community’ is a deeming provision with normative principles, ascribing an expectation aligning with that of the Executive Government. It is not for the Tribunal to determine the expectations of the Australian community based on the Applicant’s individual circumstances or evidence about those circumstances.[181] FYBR requires decision-makers to focus on what the Government has deemed the community’s expectations to be, to have due regard to those views, and to generally afford them more weight than other non-primary considerations: cl 7(2) of the Direction.[182]
[181] FYBR (2019) 272 FCR 454, at 471–2 [66] (Charlesworth J), and 476 [91] (Stewart J).
[182] Ibid [74] (Charlesworth J). See also Say v Administrative Appeals Tribunal [2020] FCA 1489, [39] (Charlesworth J).
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine.’[183] The Tribunal notes the High Court refused an application for special leave to appeal the orders in FYBR.[184]
[183] Ibid at 473 [75]–[76] (Charlesworth J).
[184]FYBR v Minister for Home Affairs and Anor [2020] HCATrans 56.
The Applicant’s offending reflects serious breaches of the privilege afforded to non-citizens to enter and remain in Australia. He has not been law-abiding and has not respected important institutions like the courts. His persistent criminal conduct raises serious character concerns within the meaning of cl 8.4(2)(a) of the Direction and he should expect to forfeit the privilege of staying in Australia.
The Applicant has lived in Australia for approximately a decade. Notwithstanding that he may be afforded a higher level of tolerance because of the time he has spent here, and other positive features of his case, this primary consideration nevertheless weighs substantially against exercising the discretion in his favour.
OTHER CONSIDERATIONS
International non-refoulement obligations
The Applicant did not advance submissions that he is owed non-refoulement obligations[185] and none could be discerned from the available evidence. The Tribunal finds this consideration is not relevant and is afforded neutral weight.
[185] ASFIC 9 [26].
Extent of impediments if removed
There is no dispute that the country of return in the event of repatriation is PNG, which the Applicant has visited on several occasions since arriving in Australia.
The Applicant is 32 years old and previously lived in PNG until the age of 22. He speaks fluent English, Tok Pisin, and two other dialects. He made no claims about language or cultural impediments. The Applicant claims he has no diagnosed medical or psychological conditions.[186] He appears to be in good health, with no discernible impediment to resuming work if released.
[186] Exhibit R1 218 [Q12].
The Applicant expressed concerns about possible removal in the context of employment and the impact on his wife and children in Australia, stating: ‘I don’t have a job, house or wife and kids to go back to and that thought alone kills me. I have nothing and I don’t think I would survive there long’.[187] He claimed that after the death of his father in 2015 his family’s lands were ‘taken over by our uncles’ and ‘the few lands left have been shared among my brothers, so I literally have nothing to go back home for. I will not be able to support myself or my family here in Australia if I return’.[188] In oral evidence, the Applicant said he is close to his mother and siblings and would live with them if returned to PNG.
[187] Ibid 219 [Q13]; ASFIC 9 [27].
[188] Exhibit R1, 219.
There is no evidence that the Applicant could not rely on emotional and practical support from his family in PNG if returned, or that he would not be entitled to the benefits available to other PNG citizens. It is noted that in an IHMS report dated 10 February 2021, the Applicant stated: ‘he would go back to PNG if he did not have children, but that he wants to fight to…be there for them’.[189]
[189] Exhibit A5, 78.
No evidence was advanced to corroborate the Applicant’s oral claims about job opportunities in PNG or the withdrawal of mining companies. That said, the Tribunal accepts PNG’s economy has been adversely impacted by COVID-19. Given the studies and work undertaken by the Applicant in the mining industry, this can only assist his future employment prospects. Letters from two employers in evidence dated October 2018 and June 2020, also attest to the Applicant’s professional approach to his work, which may assist him.
The Tribunal accepts that after ten years living in Australia, the Applicant is likely to experience a period of adaptation in resuming his life in PNG. He has some assets to draw upon, with approximately $23,000 in superannuation savings. This consideration is nevertheless in the Applicant’s favour and carries moderate weight in favour of setting aside the reviewable decision.
Impact on victims
Clause 9.3(1) of the Direction provides that the Tribunal must consider the impact of a refusal decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where this information is available.
The Federal Court has previously held this consideration ‘requires a particular focus upon the consequences of the exercise of discretion to grant a visa with the result that the applicant will remain in Australia,’ where that information is available.[190]
[190] HVLC v Minister for Home Affairs [2019] FCA 616 at [13] (Colvin J).
Submissions were made on the Applicant’s behalf that:
While the impact on victims may traditionally be weighed against Applicants, we submit that in the circumstances of [the Applicant and Ms AB]…the impact on victims of a decision to affirm the refusal of [the Applicant’s] visa would have devastating effects on the victim of his past offences, [Ms AB]. As such, we submit that this factor should be weighed strongly in favour of the Applicant.
The Respondent submitted there is no evidence that Ms AB, as the victim of the Applicant’s offending, ‘has an interest in the outcome of this review in her capacity as a victim, separate to her interest in the outcome of the review as the applicant’s wife.’[191]
[191] Respondent’s Statement of Facts, Issues and Contentions (RSFIC) 19 [57].
Ms AB expresses a preference for the Applicant to resume his role within the family, to work, and help take care of their children. This is in the context of alleviating her role as the mother of their children. She refers particularly to adverse emotional and financial consequences if the Applicant is repatriated. The Tribunal has considered this dimension of her evidence elsewhere in these reasons, including under Strength, nature, and duration of ties.
The Tribunal can also have regard for the negative consequences arising from a repeat of the Applicant’s family violence against Ms AB as the victim of his offending.[192] Given the inconsistencies and unsatisfactory nature of her evidence in this context, where she attempted to blame herself for the Applicant’s abuse and aggression, the Tribunal has decided to treat her evidence as a victim with caution. Her evidence, in effect, was that she did not consider herself a victim of the Applicant’s offending, but to have provoked and been deserving of his responses. The Tribunal is unpersuaded Ms AB fully appreciates the potential risk of harm from family violence and remains concerned by her claims that she actively tried to incite the Applicant to hurt her because she doesn’t ‘feel worthy of anything.’
[192] DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97 [32]-[37].
The Tribunal does not consider that Ms AB’s evidence as a victim enlivens this consideration in the Applicant’s favour and it is afforded neutral weight.
Links to the Australian community
Clause 9.4 of the Direction provides that decision-makers must, reflecting on the principles at cl 5.2, have regard to cl 9.4.1 relating to the ‘Strength, nature and duration of ties to Australia,’ and cl 9.4.2 relating to ‘Impact on Australian business interests.’ Notwithstanding the evidence about the Applicant’s employment in Australia, there is no evidence a decision in this matter risks compromising the delivery of a major project or an important service. It follows that the presumption in the Direction is not displaced and cl 9.4.2 of the Direction is of neutral weight.
Strength, nature, and duration of ties
The Applicant’s closest ties are predominantly to Ms AB and their children, as well as a few close friends. Consistent with the meaning of cl 9.4.1 of the Direction, the Tribunal places no weight on the interests of family members and friends who are not Australian citizens, Australian permanent residents, or don’t have a right to remain in Australia indefinitely.
The Applicant has spent approximately a decade studying, living, and working in Australia, although his offending began relatively soon after arriving here. Less weight is consequently given to this consideration. He has spent time contributing positively to the community through employment in the mining industry and paying taxes, which attracts some weight.
Notwithstanding the limited nature of the Applicant’s ties to Australia, it is accepted visa refusal would have a significantly adverse effect on Ms AB and their children. They do not intend accompanying the Applicant to PNG if he is repatriated, and it would be highly unlikely the Applicant would be permitted to re-enter Australia for a considerable time. Others like his friend who gave oral evidence and perhaps former employers and others would likely be saddened by an adverse decision. On balance, this consideration weighs substantially in favour of revocation.
CONCLUSION
The Applicant does not pass the character test. In considering whether the discretion under s 501(1) of the Act to refuse the visa should be exercised, the Tribunal has applied the Direction to the specific circumstances of his case. The Tribunal sees no reason to depart from the guidance in the Direction that greater weight ‘should generally be given’ to the primary considerations than other considerations.
The Applicant’s overall offending is very serious and is characterised by repeat family violence, drink-driving offences, and breaches of conditional liberty. The Tribunal has little confidence in his latest assurances that rehabilitative progress during the last year in detention has mitigated his recidivism risk to an acceptable level, particularly when considered in the context of a resumed relationship with Ms AB.
The Applicant’s persistent criminal conduct reflects serious breaches of the privilege afforded to non-citizens to enter and remain in Australia. He has not been law-abiding nor respected important institutions like the courts. His persistent criminal conduct raises serious character concerns within the meaning of cl 8.4(2)(a) of the Direction and he should expect to forfeit the privilege of staying in Australia.
The Tribunal accepts the Applicant’s biological children and stepchildren would be adversely affected by losing close contact with the Applicant and his emotional and perhaps financial support. Visa refusal is not in their best interests.
The Tribunal accepts that after ten years living in Australia, the Applicant is likely to experience a period of adaptation in resuming his life in PNG. He has close ties to Ms AB, their children, and other friends and past employers. If removed, he would be unlikely to be permitted to return for the foreseeable future.
Having weighed all relevant considerations individually and cumulatively, the Tribunal finds the discretion under s 501(1) of the Act should be exercised to refuse to grant the Applicant’s visa. That is because the primary considerations ‘Protection of the Australian community,’ ‘Family violence committed by the non-citizen’, and ‘Expectations of the Australian community,’ considerably outweigh the combined weight to be given to the primary consideration ‘Best interests of minor children in Australia’ and the other countervailing considerations.
DECISION
It follows that the Tribunal affirms the reviewable decision.

I certify that the preceding 157 (one hundred and fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

……………[sgd]…………………….
Associate
Dated: 28 January 2022

Dates of hearing: 11, 12 and 13 January 2022

Advocate for the Applicant:
Mr Mark Northam

Advocate for the Respondent: Mr Adam Cunynghame

Solicitors for the Respondent: Sparke Helmore Lawyers

Dates of hearing:	11, 12 and 13 January 2022
Advocate for the Applicant:	Mr Mark Northam
Advocate for the Respondent:	Mr Adam Cunynghame
Solicitors for the Respondent:	Sparke Helmore Lawyers