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

Rana and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1327 (23 May 2023)
Division:GENERAL DIVISION
File Number: 2023/1045
Re:Muhammad Rana
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

REASONS FOR DECISION
Tribunal:Senior Member S Burford
Date:23 May 2023
Place:Perth

On 16 May 2023, I made the following decision:
The decision of the delegate of the Respondent, dated 20 February 2023, not to revoke the cancellation of the Applicant’s Class BS Subclass 801 Partner visa is affirmed.

These are my written reasons.
...............[Sgd]................................................
Senior Member S Burford
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction No 99 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – family violence committed by the non-citizen – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – extent of impediments if removed – Applicant is a 37 year old man who arrived in Australia as a 23 year old – extent of impediments if returned to Pakistan – Non-Revocation Decision is affirmed
LEGISLATION
Criminal Code Act Compilation Act 1913 (WA) s 304(2)(a)
Migration Act 1958 (Cth) ss 15, 46(1)(d), 189, 196, 197C, 198, 499(1), 499(2A), 500(1)(b), 500(6B), 500(6L), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(3), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501E, 501E(2), 501F, 501F(4), 503
Migration Regulations 1994 – Reg 2.12AA, Schedule 5 Special Return Criteria 5001(c)
Restraining Orders Act 1997 (WA) s 63A
CASES
AJL20 v Commonwealth of Australia [2020] FCA 1305
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Borer Protection [2018] FCA 1803
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; (2019) 273 FCR 121
FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SECONDARY MATERIALS
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (8 March 2021)
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023) – paras 2, 3, 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 5.2(2), 5.2(3), 5.2(4), 6, 7, 8, 8(1), 8.1(1), 8.1(2), 8.1.1, 8.1.1(1)(a)(iii), 8.1.1(1)(b), 8.1.1(1)(b)(ii), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.1(1)(h), 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.2(1), 8.2(3)(a), 8.2(3)(b), 8.2(3)(d), 8.3(1), 8.3(2), 8.3(3), 8.4, 8.4(4), 8.4(4)(a), 8.4(4)(f), 8.5, 8.5(1), 8.5(2), 8.5(2)(a), 8.5(2)(b), 8.5(2)(c), 8.5(2)(d), 8.5(2)(e), 8.5(2)(f), 8.5(3), 9, 9.1, 9.1(3), 9.1.2(2), 9.1.2(3), 9.2, 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3, 9.4
REASONS FOR DECISION
Senior Member S Burford
23 May 2023
THE APPLICATION

The Applicant seeks review of a decision of a delegate of the Respondent (the Minister) dated 20 February 2023 not to revoke the cancellation of his Class BS Subclass 801 Partner visa (the visa) under s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act).
The application is made pursuant to s 500(1)(b) of the Migration Act which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister made under s 501 of the Migration Act.
BACKGROUND
The Applicant is a 37-year-old citizen of Pakistan. He was born in Karachi, Pakistan to parents who had migrated from India. He first arrived in Australia as the holder of a student visa on 24 April 2009 when he was 23 years old.[1] He married an Australian citizen, Ms Jayde Larsen and was granted the visa on 20 April 2016. The couple separated in October 2018.[2]
[1] R1, G7, page 47; ASFIC, page 3.
[2] ASFIC, page 2.
On 21 April 2022, the Applicant was convicted in the District Court of Western Australia of ‘With intent to harm, did an act causing bodily harm’.[3] The victim of the offence was Ms Larsen. The Applicant plead guilty and was sentenced to a term of three years and three months imprisonment.[4]
[3] Section 304(2)(a) Criminal Code Act Compilation Act 1913 (WA) (the Criminal Code); R1, G4.
[4] R1, G4.
Consequently, on 26 May 2022, the Minister cancelled the Applicant’s visa under s 501(3A) of the Migration Act on the basis that he had a substantial criminal record within the meaning of s 501(6)(a) of the Migration Act and was serving a sentence for imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a state or territory (the Cancellation Decision).[5] The Applicant requested revocation of the Cancellation Decision on 20 June 2022.[6] He submitted a personal circumstances form and evidence in support of his request for revocation.[7]
[5] Migration Act ss 501(6)(a) and 501(7)(c); R1, G8, pages 48-55.
[6] R1, G9 and G10.
[7] R1, G11, G12 and G13.
On 20 February 2023, a delegate of the Minister decided, under s 501CA(4) of the Migration Act, not to revoke the Cancellation Decision (the Non-Revocation Decision).[8] This is the reviewable decision before the Tribunal.
[8] R1, G3.
The Applicant was paroled on 20 August 2022 and is currently at Yongah Hill Immigration Detention Centre.
The Applicant was notified of the Non-Revocation Decision by hand at Yongah Hill Immigration Detention Centre on 21 February 2023.[9]
[9] R1, G52, page 264.
The Applicant lodged his application for review of the Non-Revocation Decision on 21 February 2023.[10] The Tribunal is satisfied that the application was lodged within time, pursuant to s 500(6B) of the Migration Act.
[10] R1, G2.
The Tribunal was required to hand down a decision on or before 16 May 2023.[11]
[11] Migration Act s 500(6L).
ISSUES
The issues before the Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
For the reasons below, the Tribunal has decided that the correct and preferable decision is that the Non-Revocation Decision be affirmed.
THE HEARING AND THE EVIDENCE
The hearing was held on 26 April 2023 and 28 April 2023 at the Tribunal Registry in Perth. The Applicant appeared in person and was represented by Ms Jessica Edis of Putt Legal, who also appeared in person. The Respondent was represented by Mr Ashley Burgess of Sparke Helmore Lawyers and appeared in person. The Tribunal is grateful for the assistance provided by both representatives.
At the hearing, the Applicant made submissions, gave evidence and was cross-examined.
The Tribunal also took evidence from the Applicant’s brother Mr Muhammad Hashim Rana, the Applicant’s sister-in-law, Ms Sumna Nageen Thanvi and the Applicant’s former partner, Ms Tanny Rose Pereyra. The Respondent cross-examined the Applicant’s witnesses who all appeared by telephone. Ms Jacqui Yoxall, a registered psychologist who provided an expert report to the Tribunal was also made available for cross-examination, but was not required for questioning by the Respondent or the Tribunal.
The following documents were marked as exhibits:
·Applicant’s documents, filed 28 March 2023 (Exhibit A1);
·Applicant’s supplementary documents, filed 19 April 2023 (Exhibit A2);
·Applicant’s email to expert witness regarding expert witness engagement and instructions, 13 pages of email exchange, various dates (Exhibit A3);
·Section 501G documents, labelled G1 to G52, consisting of pages 1 to 264 (Exhibit R1);
·Respondent’s Summons Bundle (Volume 1 of 2), labelled SB1-SB3, consisting of pages 1-151 (Exhibit R2);
·Respondent’s Summons Bundle (Volume 2 of 2), labelled SB4, consisting of pages 152-1031 (Exhibit R3); and
·AAT Case No. 2023/1045 – List of key documents per D/99 considerations (excusing statements/letters) (MFI1).
The Applicant filed a Statement of Facts, Issues and Contentions (ASFIC) dated 29 March 2023. The Respondent filed a Statement of Facts, Issues and Contentions (RSFIC) dated 12 April 2023 prior to the hearing. The Applicant filed Submissions in reply on 19 April 2023 (AReply).
LEGISLATIVE FRAMEWORK
Migration Act
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel or refuse a visa should be revoked.
The character test is set out in s 501(6) of the Migration Act and provides that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:
(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)); …
(Original emphasis.)
A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of
12 months or more; …
(Original emphasis.)
Under s 501(3A) of the Migration Act, the Minister must cancel the visa of certain incarcerated persons, if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months.
Additionally, under s 501(3A) of the Migration Act, the person must be serving a ‘sentence of imprisonment’, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
If a visa is cancelled under s 501(3A), the Minister must give the person a written notice inviting them to make representations about revocation of the original decision.[12] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or that there is another reason why the original decision should be revoked. Making a revocation decision under s 501CA requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) if there is ‘another reason’ why the original decision should be revoked.[13]
[12] Migration Act s 501CA(3).
[13] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
Direction No 99
The Tribunal is required to form a state of satisfaction as to whether there is ‘another reason’ why the original decision should be revoked, reasonably and on a correct understanding of the law.[14] By reason of s 499 (2A) of the Migration Act, in doing so the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.
[14] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Halley J) at [119].
On 23 January 2023, the Minister made Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 99) under s 499 of the Migration Act, which commenced operation on 3 March 2023. This Direction replaced the previous Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (8 March 2021).[15]
[15] Direction No 99 paras 2-3.
The Tribunal notes that the previous direction, Direction No 90, was in force at the time the Non-Revocation Decision was made. At a directions hearing on 2 March 2023, the Tribunal confirmed with the parties that a new direction had been issued and that it would be required to apply Direction No 99 in conducting its review. A copy of Direction No 99 was provided to the parties by the Tribunal on 2 March 2023.
An objective of Direction No 99 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[16] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction No 99 where relevant to the decision.[17]
[16] Direction No 99 para 5.1(4).
[17] Direction No 99 para 6.
Paragraph 5.1 of Direction No 99 sets out ‘[o]bjectives’ including para 5.1(3) which provides that:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No 99 sets out ‘[p]rinciples’ which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’ and are expressed as follows:
(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 [sic] 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 non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) [18](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 [sic] risk of causing physical harm to the Australian community.
[18] As there is no para 8.55(2) the Tribunal infers this is a reference to 8.5(2).
Informed by the principles set out in para 5.2 of Direction No 99, the Tribunal must take into account the primary considerations listed in para 8, and the other considerations listed in para 9, where relevant having regard to the specific circumstances of the case, in deciding ‘whether to revoke the mandatory cancellation of a non-citizen’s visa’.[19]
[19] Direction No 99 para 6; see also the definition of ‘decision-maker’ in para 4(1) of Direction No 99, which includes the Tribunal.
In making a decision under s 501CA(4), the primary considerations to be taken into account by the Tribunal are:[20]
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
[20] Direction No 99 para 8.
The ‘other considerations’ that the Tribunal must take into account, insofar as they are relevant to the matter, include (but are not limited to):[21]
(a)       legal consequences of the decision;
(b)       extent of impediments if removed;
(c)       impact on victims; and
(d)       impact on Australian business interests.
[21] Direction No 99 para 9.
Further guidance as to how a decision-maker is to apply the considerations in
Direction No 99 can be found in para 7, which provides that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7). Relevant to the Applicant’s case,
[22] Migration Act s 501(7)(c).
a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[22]

The Tribunal finds that on 21 April 2022, the Applicant was convicted of the offence of ‘With intent to harm, did an act causing bodily harm’ in the District Court of Western Australia and was sentenced to a term of three years and three months imprisonment.[23]
[23] R1, G4.
As the Applicant has been sentenced to a term of imprisonment of 12 months or more, he does not pass the character test by operation of s 501(7)(c) of the Migration Act. The Applicant accepted that he did not pass the character test.[24]
[24] ASFIC, page 5, para [33].
Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[25]
[25] See Migration Act s 501CA(4)(b)(i).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction No 99, there is another reason why the Cancellation Decision should be revoked. The statutory power to revoke will only be enlivened if there is ‘another reason’ why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
The Applicant submitted, in summary that:[26]
·It is conceded that the Applicant’s offending was very serious. However, he has demonstrated remorse for his conduct, and acknowledges the significant harm and trauma he caused to Ms Larsen. He is ashamed and sorry.
·Taking account of the fact that the offending was a one-off incident, and the Applicant’s concerted rehabilitation, the risk of him reoffending is low.
·The consequences of the Applicant’s offending have been personally devastating. He has not had direct contact with his children since April 2021. He desperately wants to see them again and make up for lost time. The best interests of the Applicant’s biological children, his stepson and his nieces are that the cancellation be revoked.
·Australia has been the Applicant’s home country since 2009. His ties through family, friends and his work and study are very strong. He wants to stay, especially for the sake of his children.
·None of the ‘other considerations’ are directly applicable to the Applicant’s case.
·It is open to the Tribunal to balance the competing considerations in the Applicant’s favour and be satisfied that there is ‘another reason’ to revoke the cancellation of his visa, pursuant to s 501CA(4) of the Act.
[26] ASFIC, including page 15; AReply.
In a statement to the Tribunal, the Applicant identified six reasons why the Cancellation Decision should be revoked:[27]
·He has Australian citizen children whose lives he wanted to be part of again;
·The assault was a one off event, he is rehabilitated and there is no risk that he will reoffend;
·He has complied with his visa and bail conditions and will be law-abiding in the future;
·He is sincerely remorseful for the trauma caused to his ex-wife and children and wants to make it up to them;
·He has lived in Australia since 2009 and has longstanding ties here including his children, extended family and friends, and he does not want to leave them; and
·He is worried about returning to Pakistan because he has not maintained family links there and does not believe in the culture or value system there. He will not fit in anymore.
[27] A1, pages 1-2.
The Minister submitted, in summary, that:[28]
·The Applicant’s offending is very serious. His crimes are to be viewed very seriously including as violent crimes against women and as family violence.
·The risk of harm in this case is so serious that any risk of reoffending is unacceptable. The nature of the harm which would be caused were the Applicant to reoffend is very serious. Further, the Applicant has outstanding treatment needs in relation to domestic violence and emotional management.
·The Applicant’s offence constitutes family violence which was very serious and was aggravated by the fact that it was witnessed by the Applicant’s children, it was ‘pre-meditated, persistent and unprovoked’ and the Applicant has limited insight into the impact of his offending.
·The Applicant’s ties to the Australian community do not outweigh considerations weighing against revocation.
·Non-revocation would be in the best interests of the Applicant’s children given the presence of family violence and evidence that their mother has concerns for their safety. If it is determined it is in their best interests that the visa cancellation be revoked, less weight should be given to this primary consideration in circumstances where the children are in their mother’s care, there has been a lengthy period where the Applicant had limited contact with the children and the Applicant’s offending has had a negative impact on them.
·Less weight should be placed on the best interests of the Applicant’s nieces as the relationship is non-parental, the children live in a different state to the Applicant and the Applicant can maintain a relationship with them through electronic means.
·Given the nature of the Applicant’s offences, the Australian community would expect the visa would remain cancelled.
[28] RSFIC.
Protection of the Australian Community
The first primary consideration, paragraph 8.1(1), focuses on the protection of the Australian community. Direction No 99 requires decision-makers to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, the Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[29]
[29] See also Direction No 99 para 8(1).
Paragraph 8.1(2) of Direction No 99 then provides that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
The Applicant has a single criminal conviction which gave rise to the mandatory cancellation of his visa. As noted above, on 21 April 2022, he was convicted in the District Court of Western Australia of ‘With intent to harm, did an act causing bodily harm’.[30] Records indicate that the Applicant plead guilty to that offence in April 2021 but his sentencing was delayed pending a the hearing of other charges (in relation to which he was subsequently found not guilty) and the conduct of a trial of issues with respect to the ‘with intent to harm’ offence. He was sentenced in April 2022 to a term of three years and three months imprisonment following the trial of issues.[31] He is bound by a lifetime Violence Restraining Order (VRO) made on 13 April 2021, following his guilty plea, pursuant to s 63A of the Restraining Orders Act 1997 (WA) for the protection of Ms Larsen.[32]
[30] Section 304(2)(a) Criminal Code; R1, G4.
[31] R1, G4.
[32] R1, G37, page 183 (Note the order is in Ms Larsen’s married name).
There is no information before the Tribunal to suggest the Applicant has been convicted of any other offences in Australia or in Pakistan.
With respect to the nature and seriousness of his offending the Applicant submitted that:
·He accepted his offending must be viewed as very serious;[33]
·However, his lack of prior history demonstrates this was a one-off event of short duration;[34]
·The actual harm suffered by Ms Larsen was ‘not of the more serious kind’;[35] and
·The Applicant voluntarily turned himself into police and made full admissions.[36]
[33] ASFIC, para [35].
[34] ASFIC, para [37].
[35] ASFIC, para [36].
[36] ASFIC, para [38].
The Minister submitted, with respect to the nature and seriousness of the Applicant’s offending, that:
·The Applicant’s offending should be viewed as very serious;[37]
·His crime was an extremely violent crime against a woman who was his ex-wife. Violence against woman and acts of family violence are to be viewed very seriously;[38]
·Sentences of imprisonment are a last resort in the sentencing hierarchy and the Applicant’s sentence should be viewed as a reflection of the objective seriousness of the offence;[39] and
·Because of the seriousness of the Applicant’s convictions, he is forbidden from having any contact with the victim for life by operation of the VRO imposed.[40]
[37] RSFIC, para [22].
[38] RSFIC, para [23]
[39] RSFIC, para [26].
[40] RSFIC, para [27].
The offence occurred on the evening of 27 December 2018.[41] The Applicant and Ms Larsen had been married and had two children together, Ms A and Mstr M. Ms Larsen also had a son Mstr L who the Applicant regards as a son. The couple had issues in the relationship and the Applicant had moved out of the family home on 6 October 2018. He spent a period of time interstate with his brother’s family, but returned to Perth and continued to visit and spend time with the children.
[41] R1, G6, page 44.
On 27 December 2018, he visited the home around midday and stayed until the evening. An argument broke out over the Applicant putting his younger son to bed. The Sentencing Judge, described the circumstances of the offending which followed:[42]
…you became angry and threw a plastic coat hanger at her, which struck her in the stomach. She then told you to leave the house which made you more angry.
Ms Larsen put [Mstr M] to bed. [Mstr L] was in his bedroom playing video games and your other daughter was in bed in her bedroom. After Ms Larsen had put [Mstr M] to bed, she went outside to the patio area and sat down for a cigarette. Shortly afterwards, you joined her outside and you took with you a serrated steak knife, which you hid in your pants.
You told her you were upset that she had not made a coffee for you, you walked over to her using your mobile phone as an excuse to get closer to her. As you did get closer to her, you took the knife from your pants and moved it towards her. They were both findings, which I’ve already explained, regarding your intent with the knife.
In response, Ms Larsen grabbed the knife by the blade, and it snapped off from the handle, you grabbed her by the throat and a struggle between the two of you took place.
She repeatedly tried to fight you off. During the struggle, you grabbed her throat and bit her to the neck and left arm. She struck you with the knife blade in the effort to get you to stop. Eventually, you stood up, you lifted her up by the hair, kneed her to the face, and punched her to the head three times. At this point, she yelled out to her son, [Mstr L], telling him to lock the door. You dragged her along the ground towards the rear door, and it would appear from the CCTV footage that you dragged her by the hair.
Both [Mstr L] and [Ms A] had heard her screams, and were standing inside the door and could see what was happening, and [Mstr L] had yelled out to you, “Dad, what are you doing? Why are you doing this? Dad, stop.” Ms Larsen yelled to the children, “Call the police”, at which point you then punched her a further time to the head. She then stood up and you ran from the house.
[Mstr L] unlocked the rear door and she entered the house. Police arrived at the house about 15 minutes after the incident had finished, and when they entered, they saw Ms Larsen on the floor in a distressed state, and with blood on her body, clothing, and on the floor.
As a result of the incident, she sustained bruising to her face and arms, a bite mark to her neck, lacerations to her face, torso, left arms and hands, and abrasions to her left wrist, hands, knees, and feet.
[42] R1, G5, pages 37-38.
With respect to the seriousness of the offence, His Honour observed:[43]
In my view, what occurred here was a persistent and brutal assault by you on Ms Larsen, which initially involved the use of a weapon, being a knife. And including you punching her repeatedly to the head, kneeing her to the head an dragging her across the courtyard by her hair.
There was a degree of premeditation to the offending, in that you had obtained the knife before you went into the courtyard, or patio area, and there was also a degree of deception with you using your phone as a way of getting close to her.
When I have regard to these matters, I assess that your intention was to cause significant harm to her. However, I’m not satisfied that you intended to harm her in front of the children.
[43] R1, G5, pages 39-40.
His Honour observed that the bodily harm suffered by the victim was ‘not of the more serious kind’. However, he observed that the potential consequences ‘could have been catastrophic.’ Noting that the Applicant moved the knife towards Ms Larson’s upper body region in circumstances she would not have anticipated and that her attempt to then defend herself could have resulted in far more significant injuries, His Honour also considered the following contributed to the seriousness of the offending:
·The fact the offending only stopped after Ms Larsen told her son to call the police;
·At least some of the offending was witnessed by two young children who witnessed the trauma that Ms Larsen suffered and the physical injuries that she suffered;
·Their son was the one who had to ultimately call police to protect his mother;
·The attack was completely unprovoked and had degrees of premeditation and deception;
·It was a form of domestic violence and a very violent response to what was a parenting disagreement against the context of a relationship breakdown; and
·The ongoing physical harm suffered by Ms Larsen as well as the psychological harm affecting her and the two young children who witnessed the event.
In terms of the matters in mitigation, His Honour was satisfied that the Applicant pleaded guilty at an early stage and as a result of that plea, a trial was not necessary and Ms Larsen did not have to give evidence in respect of the distressing nature of the event. His Honour found significant value in that.
Having regard to all these factors, his Honour considered the offending to be ‘a very serious example of this type of offence’.[44]
[44] R1, G5, page 40.
Before the Tribunal, the Applicant accepted that his offending is properly characterised as ‘very serious’.[45] He accepted that his wife would have been ‘terrified’ and ‘scared for her life’.[46] He accepted the facts the prosecution presented to the Court about the offending, except that he recalled stopping his assault on his wife when Mstr L called out to him,[47] rather than after his wife called for her son to call the police and the Applicant punched her in the head a further time, as found by the Sentencing Judge.[48] He did not dispute the account in the statement of material facts which was adopted by the Court on this point.[49] However, the Sentencing Judge was not satisfied that he intended for the children to witness the assault.[50] Accordingly, the Tribunal accepts the Applicant’s evidence to the extent he did not intend for the children to witness the assault.
[45] ASFIC, page 5.
[46] A1, page 2.
[47] A1, pages 2-3.
[48] R1, G5, pages 37-38.
[49] R2, SB1, page 42.
[50] R1, G5, page 39-40.
At the hearing before the Tribunal, an issue also arose as to the Applicant’s intentions with respect to the knife which the Sentencing Judge found he collected from the kitchen, concealed and brought outside. The Applicant contended that he did not intend to stab his wife with the knife. This was accepted by the Sentencing Judge.[51] However, the contention that he merely wished to frighten his wife with the knife was expressly addressed and rejected by His Honour who found that while the Applicant did not intend to stab his wife with the knife, he did intend to harm or threaten to harm her with it.[52] With respect to the harm the Applicant intended to cause his wife, the Court found he intended to cause ‘significant harm’ to her.[53]
[51] R2, SB1, page 31.
[52] R2, SB1, pages 30-31; R1, G5, page 38.
[53] R2, SB1, page 31; R1, G5, page 39.
The Applicant accepted that the Tribunal could not go behind his conviction and was bound by the facts as found by the Sentencing Judge. To the extent the Applicant was asking the Tribunal to find he only intended to frighten his wife with the knife, or did not continue to assault her for a short prior following the appearance of the children at the door and the call from Mstr L for him to cease the assault, the Tribunal does not accept the Applicant has established any basis from departing from the findings of the Sentencing Judge. In this regard, the Tribunal notes that a trial of issues was held before the Sentencing Judge which focussed on this issue of intent with respect to the knife.[54] The Applicant’s account of the events was considered as part of that process. The Sentencing Judge’s findings were made following an assessment of all the available evidence, including material not before the Tribunal such as CCTV records of the event.
[54] R2, SB1, pages 23-31.
The Tribunal considers itself bound by the conviction which led to the mandatory cancellation of the visa, and to the extent that the Tribunal has any discretion to go behind the specific factual findings made on sentencing, the Tribunal does not consider there is any basis to do so on the evidence before it.[55]
[55] See HZCP v Minister for Immigration and Borer Protection [2018] FCA 1803 at [78] and HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.
With respect to mitigation, the Sentencing Judge took into account:[56]
·The Applicant’s early guilty plea;
·His cooperation with police;
·His remorse, though noting ‘there is still a reluctance on [the Applicant’s] part to accept the full extent of what [he] did’ which in the Court’s view reduced the level of remorse;
·His prior good character including his lack of criminal record, positive work history and references describing him as an ‘honest, hardworking and kind person’; and
·The rehabilitation he had engaged in to address the behaviour which caused the offending, reflected in letters to the Court and ‘extensive courses’ the Applicant had undertaken. The Court reflected on the positive support the Applicant had in the community and the support he had provided to his children while in custody.
[56] R1, G5, page 41.
The Applicant was sentenced to a term of imprisonment of three years and three months. The Sentencing Judge considered the offence was ‘too serous to warrant the suspension of the term of imprisonment’.[57]
[57] R1, G5, page 42.
There were no other convictions recorded against the Applicant. There was a significant amount of material relating to other offences against Ms Larsen for events in October 2018 in relation to which the Applicant was charged, but with respect of which charges he was acquitted following a jury trial on 31 January 2022.[58] While there was some questioning of the Applicant regarding these events before the Tribunal by the Respondent,[59] in the end the Respondent did not contend that this information contributed to the overall assessment of the Applicant’s conduct or offending. The Applicant was found not guilty of these offences by a jury following a trial. Accordingly, the Tribunal considers that the information concerning those charges does not contribute negatively to an assessment to the nature and seriousness of the Applicant’s conduct or offending and the Tribunal has not placed any weight on that information in its assessment.
[58] R3, SB4, pages 411-943.
[59] Transcript, pages 35-36.

Similarly, there was information before the Tribunal regarding allegations made against the Applicant by a member of Ms Larsen’s family in April 2018. The allegations were that the Applicant had dealt indecently with the 13-year-old daughter of the girlfriend of the Applicant’s father-in-law. There was limited information before the Tribunal regarding those allegations, however Dr Yoxall’s report indicates the Applicant identified those allegations as a stressor which contributed to the breakdown of the relationship.[60] The Tribunal notes that the information indicated the police investigated those allegations and no charges were laid. Polygraph results were offered in evidence by the Applicant confirming his denial of what were presumably details of the allegations.[61] Relevantly to other considerations, information before the Tribunal confirmed a child protection worker conducted an assessment in August/September 2018 in regard to sexual harm concerns with respect to Mstr L, Ms A and Mstr M and concluded that there were ‘no reasonable grounds to conclude that [Mstr L, Ms A and Mstr M] have been significantly harmed or are likely to be significantly harmed’.[62] The report went on to note that the Department of Communities had ‘no significant concerns for the well being of [Mstr L, Ms A and Mstr M]’ and was closing the assessment.[63] As no charges were laid in relation to these matter and no concerns found to exist in relation to the Applicant’s children, the Tribunal considers that information does not contribute negatively to an assessment to the nature and seriousness of the Applicant’s conduct or offending and the Tribunal has not placed any weight on that information in its assessment, save for the confirmation the circumstances were found not to raise concerns with respect to harm to the Applicant’s children, insofar as that is relevant to the assessment of their best interests.
[60] A2, page 11.
[61] A2, page 57.
[62] A2, page 56.
[63] A2, page 56.
Relevantly to this consideration under the Direction, the Sentencing Judge noted the Applicant’s offence in December 2018 was a ‘serious form of domestic violence’.[64] The Direction provides that the Australian Government and the Australian community view very seriously ‘acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed’[65]. The Tribunal considers the Applicant’s offence constitutes a serious example of family violence and should be viewed very seriously.
[64] R1, G5, page 42.
[65] Direction No 99 para 8.1.1 (1)(a)(iii).
While with respect to family violence offending, the Tribunal is not mandated to take account of the sentence imposed by the Court, the Respondent submitted that in this case the sentence of imprisonment reflected the very serious nature of the offence. The Tribunal accepts this submission, noting the Sentencing Judge’s remarks and the fact the nature of the offending was considered too serious for the sentence to be suspended.[66] Notwithstanding the statutory maximum for the offence was 20 years imprisonment, the Tribunal considers a sentence of three and a half years to be significant.
[66] Direction No 99 para 8.1.1(1)(c).
The Applicant submitted that there was no history of repeat offending and no trend of increasing seriousness.[67] The Tribunal accepts this to be the case. Having regard to the matters mentioned in para 8.1.1(1)(b) of Direction No 99 as to the types of crimes or conduct considered to be serious, the Tribunal does not consider any of those factors relevant to the Applicant’s conduct or offending. While there was reference to Ms Larson’s vulnerability during the attack, the Tribunal does not consider her to be a ‘vulnerable’ member of the community as contemplated by para 8.1.1(1)(b)(ii). Further, the factors in paras 8.1.1(1)(d)-(h) did not contribute to an assessment of the Applicant’s offending as very serious.
[67] ASFIC, page 6; see also Direction No 99 para 8.1.1(1)(d).
For the reasons outlined above, the Tribunal considers the nature of the Applicant’s offending to be very serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal must also consider the risk to the Australian community (including individuals, groups or institutions) should the Applicant commit further offences. In considering the need to protect the Australian community from harm, paragraph 8.1.2(1) of Direction No 99 requires the Tribunal to have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. It directs that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.[68]
[68] Direction No 99 para 8.1.2(1).
Paragraph 8.1.2(2) relevantly provides that in assessing the risk that may be posed by the non-citizen to the Australian community, the Tribunal must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[69] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[70]
[69] Direction No 99 para 8.1.2(2)(a).
[70] Direction No 99 para 8.1.2(2)(b).
There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[71]
[71] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, at [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, at [41] per Kenny J.
The Applicant contended that while the nature of the harm which would be caused if the Applicant were to reoffend would be very serious, having regard to his remorse and efforts at rehabilitation, he presents a low risk of reoffending.[72] The Applicant contended that he has taken sustained, proactive steps towards:
·Understanding his offending conduct;
·Treating his mental health;[73]
·Learning about becoming a better parent;[74] and
·Ongoing education and self-awareness in relation to family violence, including during his time on bail and since being placed in a custodial setting and as intended on release.[75]
These contentions and the assessment of a low risk of reoffending were supported by the psychological report of Dr Yoxall.[76]
[72] ASFIC, pages 6-9; AReply pages 1-4.
[73] A1, pages 89-110.
[74] A1, page 139; A1, page 143.
[75] A1, pages 111, 112-113 and 114-115; A2, pages 62-77.
[76] A2, pages 2-53.
The Respondent contended that the risk of harm were the Applicant to reoffend is so serious that any risk of reoffending is unacceptable and that there remained an ongoing and unacceptable risk of reoffending having regard to the Applicant’s ongoing treatment needs and limited remorse or insight into his offending.[77]
[77] RSFIC, pages 9-10.
Nature of the harm
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals, or the Australian community should the Applicant reoffend.[78]
[78] Direction No 99 para 8.1.2(2)(a).
The very serious nature of the Applicant’s offence has been detailed above. As noted by the Sentencing Judge, the Applicant’s conduct was violent, unprovoked and the consequences of the Applicant’s conduct could have been catastrophic. Ms Larsen’s victim impact statement speaks to the physical, emotional and financial harm she and her children suffered as a result of the assault.[79]
[79] R3, SB4, pages 1000-1001.
Were the Applicant to reoffend the nature of harm to individuals and the Australian community is likely to be very serious and involve physical, psychological and financial harm to members of the Australian community including women and children.
The Tribunal considers that given the very serious nature of the harm which would be caused if the Applicant were to reoffend, the Australian community would have a very low tolerance for any risk of the offending being repeated.
Likelihood of the non-citizen engaging in further criminal or serious conduct
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence.[80]
[80] Direction No 99 paras 8.1.2(2)(b)(i) and (ii).
The Applicant testified that he is remorseful for his offending. He understands his actions caused harm to his ex-wife and his children. He has taken whatever steps he can to understand and change his behaviour to prevent any reoccurrence. He submitted that his rehabilitation efforts have given him insight into his behaviour including his issues with depression. While his upbringing and cultural background in Pakistan had encouraged the stigmatisation of mental health issues and had deterred him understanding or seeking treatment for such issues in the past, he now understands the importance of taking care of his mental health. He had strategies in place for maintaining a positive mental state. The Applicant stated that:[81]
I am in a really good place from a mental health perspective, despite having been in prison and now in detention. I have [sic] much calmer and clearer perspective than ever before. I don’t sweat the small stuff. I am in control of my emotions and my ego is in check. This entire experience has been nothing but humbling for me
…
I intend to continue counselling with [Relationships Australia]. I understand that self-improvement and self-awareness is a lifelong journey.”
[81] A1, pages 4 and 6.
With respect to any risk of reoffending against Ms Larsen, the Tribunal takes account of the lifetime VRO which protects her from contact with the Applicant. A prior VRO was in place for two years and it appears the Applicant complied with its terms including during an extended period where contact with the children was being mediated. There was also a period from January 2021 to April 2021 when it appears the Applicant was not subject to a restraining order. On the information before the Tribunal, the Applicant was able to communicate with Ms Larsen regarding the children in an appropriate manner and abide by the terms of the parenting plan. This is to his credit.
The Tribunal considers the VRO with respect to Ms Larsen significantly reduces the risk of further offending against her. However, the Tribunal notes the Applicant is seeking to mediate access to the children which, if successful, will likely involve contact with Ms Larsen. Given the violence inflicted on Ms Larsen without provocation in the past, any contact brings an element of risk, albeit the Tribunal considers the risk to be low based on the apparently successful navigation of contact issues by the Applicant and Ms Larsen in the past and the ongoing impact of the VRO in limiting direct contact with Ms Larsen.
The assessment of risk is tempered by reports that as late as mid-2022, Ms Larsen continues to hold fears for her safety and for that of her children.[82] The Parole Report records that:[83]
The victim has expressed fear for herself and her children should [the Applicant] be released from custody and has requested protective conditions in addition to the FVRO in place.
While the Applicant contended that the report should be given less weight because it was not a direct account of the victim’s views the Tribunal considers the report was prepared in the context of assessing considerations around the Applicant’s release from prison and there is no reason to discount the observations contained in it or the report of the victim’s fears. The Tribunal considers those should not be discounted.
[82] R2, SB2, page 101.
[83] R2, SB2, page 101.
The Tribunal does note, however, that Ms Larsen has had no contact with the Applicant for several years during which he has continued to make efforts towards gaining insight and rehabilitating. In this regard the Tribunal acknowledges the Applicant’s considerable efforts towards reform which have included:
·Participation in a 24-week Relationships Australia FAIR Men’s Group between August 2019 and August 2020;[84]
·Seven sessions of Standing on Solid Ground, a prison program addressing mental and emotional intelligence;[85]
·A six-week Active Parenting Course (ReSet) in prison;[86]
·An on-line Domestic Violence course;[87]
·An on-line Anger Management course;[88] and
·An on-line ‘Triple P’ positive parenting program.[89]
He has also completed a range of educational and self-improvement courses.[90]
[84] R1, G27, page 133; A1, page 111.
[85] A1, page 29,
[86] A1, page 139.
[87] A1, page 114.
[88] A1, page 115.
[89] A1, page 143.
[90] A1, pages 86-88.
The Tribunal notes the FAIR Men’s Group program specifically targeted family violence offenders and was organised and undertaken by the Applicant voluntarily while he was in the community prior to his incarceration. The Applicant’s brother gave evidence regarding the positive impact rehabilitation has had on the Applicant and the fact he has encouraged him to undertake courses as well, as a positive step in a married relationship suggesting the depth to which he has taken onboard the lessons of the programs he has undertaken.[91] The Tribunal considers these efforts to be significant. In addition, there was information that the Applicant had sought counselling while in prison and detention and that he intends to continue counselling support with Relationships Australia in the community.
[91] Transcript, page 57-58.
Department of Justice Records indicate that a Risk of Reoffending (Prison Version) risk assessment tool was administered in July 2022. The assessment records the Applicant was at a ‘very low risk’ of reoffending with the exclusion of ‘Family/Marital’ identifiers. This includes a note that a DVSI-R (Domestic Violence Screening Instrument (Revised)) should be completed if Parole is granted.[92] Comments in the assessment include a noted that the Applicant ‘has completed voluntary programs in custody, however none which address his treatment needs’.[93] The assessment recommends a medium level of supervision noting that this was deemed appropriate ‘given domestic violence related offending which was serious, occurred in front of the children and he was armed with a knife.’[94] The assessment includes plans for referral to a mens behaviour change program, encouraging compliance with the FVRO (the VRO) and encouraging the Applicant to engage with the Family Court over access to his children. [95]
[92] R2, SB2, page 66.
[93] R2, SB2, page 67.
[94] R2, SB2, page 67.
[95] R2, SB2, page 67.
The Tribunal also places weight on the fact the Applicant spent more than two years in the community on bail prior to being imprisoned. During that period he successfully mediated with Ms Larsen for supervised access to the children and complied with the conditions of a VRO for the protection of Ms Larsen and the children. He was also involved in a relationship with a new partner, Ms Pereyra. In the Tribunal’s view this demonstrates a capacity for and commitment to living pro-socially in the community, reducing the risk of reoffending.
Dr Yoxall’s report represents the most recent psychological assessment of the Applicant, including his risk of reoffending. She completed an assessment of the Applicant via video from detention. Dr Yoxall was not required for cross-examination.
Dr Yoxall assessed that at the time of the offending the Applicant was suffering from an undiagnosed depressive disorder, the most substantial stressor for this being the breakdown of his marriage to Ms Larsen. In Dr Yoxall’s assessment she states that:[96]

[t]
he offending was an impulsive and excessive abreaction to a minor incident, wherein [the Applicant] lost control of his emotions engaged in extreme and life-threatening violence against Ms Larsen. At least two of the three children witnessed their mother fighting for her life whilst she tried to give them instructions to lock themselves in the house (stay safe) and call police.
[96] A2, page 43.
With respect to the Applicant’s remorse and rehabilitation Dr Yoxall noted the Applicant’s ‘substantial self-reflection’ and consequences for his actions. Dr Yoxall notes:[97]
[The Applicant] accepts full responsibility for his actions and demonstrates what appears to be genuine remorse for his offending, empathy for his ex-wife and his children (including his stepson) and shame regarding his offending. He appears to have taken up all opportunities for rehabilitation and personal growth.
Dr Yoxall observes that as a result of rehabilitation and reflection the Applicant is better able to identify risk factors and to make goals ‘aligned with a prosocial and stable life’. Dr Yoxall observes that the Applicant’s mental health has not been adequately addressed and that he would benefit from further treatment for depression.[98] In this regard, the Tribunal notes this was somewhat at odds with the Applicant’s own assessment of his mental health (expressed above), though the Applicant appeared to accept that he had an ongoing need for support in this regard as evidenced by his outreach to support services for courses in the community, clinical appointments for mental health treatment and counselling which he attended prior to and while in prison.[99] The Tribunal notes however, that the Applicant told the Tribunal at the hearing that he had not had any mental health treatment in detention, but had completed online courses and was not on medication for any mental health condition.[100] This is consistent with Dr Yoxall’s assessment.
[97] A2, page 43.
[98] A2, page 44.
[99] A1, pages 89-99, 106-110 and 112.
[100] Transcript, page 39.
Dr Yoxall considered the Applicant’s plans for returning to the community to be ‘feasible and realistic’ and that he plans to continue to engage with rehabilitation as required and recommended in the foreseeable future. She observed he is ‘highly motivated to demonstrate his capacity to live a responsible and law-abiding life’.[101]
[101] A2, page 44.
The Respondent submitted that the protective factors in place in the community could not be relied on as they were present when the Applicant offended and were insufficient at that time to prevent the offence. However, Dr Yoxall observes that:[102]
There are various protective factors that were in place at the time of the offending (his role as a father, his employment and the support of his friends and brother etc.). However, the weight of these factors is now greater, given his experiences in the last 4 years. He appears to have substantially changed his attitudes, beliefs and expectations about his life and is focused on his role of father to his children as the priority in his life.
[102] A2, page 44.
Based on this information, Dr Yoxall assessed that the risk of domestic violence reoffending was ‘now low, but partially dependent on his ability manage his vulnerability to depression’. Dr Yoxall noted that the risk was now low because the Applicant ‘has generally learnt from his experience and there are no other enduring traits or factors that would indicate a risk of violence.’ She assessed his risk of general offending as distinct from family violence offending, to be very low.

The Applicant was granted parole on 18 July 2022 and released in August 2022. The Parole Board decided the Applicant would present an acceptable risk to the safety of the community on release having regard to the rehabilitation and vocational programs he had undertaken, his prior good conduct and the protective effect of the conditions of parole. The Parole Board also recommended the Applicant complete a Domestic Violence Treatment Program in the community.[103] The Parole Board’s decision was based on a parole assessment report which noted he ‘continues to present with outstanding treatment needs in relation to domestic violence and emotional management.’ The report noted that the Applicant ‘expressed some insight into his offending’ but considered that the Applicant would benefit from engagement with a men’s behaviour change program in the community to improve his coping mechanisms or psychological counselling ‘aimed at emotional management and alternatives to violence given the severity and sustained nature of his offence’.[104]
[103] A1, pages 83-84.
[104] R2, SB2, pages 102-103.
With respect to the Applicant’s expressions of remorse, the Tribunal found these to be genuine. The Applicant regrets his offending and the Tribunal considered his efforts at rehabilitation have given him some insight into the causes and impacts of such offending. The Applicant has recognised his need for ongoing rehabilitation evidenced by outreach to support agencies.[105] The Tribunal considers that the Applicant has demonstrated an ability to maintain a commitment to not reoffending in the community while on bail. While reliance on that period is tempered somewhat by the fact that he was facing serious charges at that point, it nonetheless demonstrates the Applicant’s commitment.
[105] A1, pages 112-113.
The Applicant submitted that his period in the community also included the forming of a new relationship with Ms Pereyra who reported no fears for her safety or that of her children.[106] The Tribunal notes this. However, as the Applicant and Ms Larsen were in a relationship for many years before she was violently attacked by the Applicant without provocation, the Tribunal does not place significant weight on this relationship as an indicator of likelihood of reoffending against a future partner on its own.
[106] See Ms Pereyra’s evidence at Transcript, page 53.
The Applicant’s remorse, efforts at rehabilitation and prior good character were supported by statements from friends, family and community members.[107] The Tribunal takes those statements into account and gives them weight as offering some protection against reoffending. The Applicant is clearly valued by those who know him, and his offence was considered out of character.
[107] A1, pages 41-45 (his brother), pages 46-51 (his sister-in-law), pages 56-58 (Imam Thanvi), pages 62-69 (Ms Pereyra), pages 70-72 (his friend, Mr Khan), pages 73-77 (Mr Burghardt, who offered employment), pages 78-80 (his friend, Ms Oh); R1, G49, page 223 (Mr Meleka, who offered employment); Transcript, page 61 (his brother) and pages 65-66 (his sister-in-law).
With regard to the assessment of risk, the Sentencing Judge assessed the Applicant’s risk of reoffending to be ‘towards the lower end’.[108] Dr Yoxall also assessed the Applicant’s risk of further family violence offending to be low and his risk of general offending to be very low. Those assessments were consistent with those undertaken in the context of the parole assessment.[109] The Tribunal accepts the assessment that the Applicant presents a very low risk of general offending and a low risk of family violence reoffending.
[108] R1, G5, page 41.
[109] R2, SB2, pages 66-67.
Overall, the Tribunal considers that the Applicant has demonstrated considerable remorse and efforts at rehabilitation. The Tribunal considers his risk of reoffending in a similar manner against Ms Larsen or a future partner to be low. The Tribunal considers his risk of general offending to be very low, consistent with his lack of past general offending.
Conclusion on protection of the Australian community
Having regard to the very serious nature of the Applicant’s offending, the very serious harm which would result were he to reoffend, but the low risk of such offending occurring, the Tribunal considers this consideration weighs in favour of not revoking the cancellation of the visa and in the Applicant’s case, the Tribunal affords it strong weight against revocation.
Family violence committed by the non-citizen
Paragraph 8.2 of Direction No 99 provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision noting that the Government has serious concerns about conferring the privilege of remaining in Australia on non-citizens who engage in family violence. This concern is said to be proportionate to the seriousness of the family violence engaged in by the Applicant. [110]
[110] Direction No 99 para 8.2(1).
The Applicant accepts his offending constitutes family violence and was very serious.[111] He is taking steps to regain his children’s trust and improve his parenting skills to make them feel secure. The Applicant also contended that the following information was relevant to weighing this consideration:[112]
[111] ASFIC, page 9, para [51].
[112] ASFIC, page 10; AReply, pages 4-5.
·The fact the children were in their bedroom for the majority of the assault and the Applicant stopped ‘almost immediately’ after he saw Mstr L at the door and Mstr L yelled at him;
·The Applicant recognised the children deserve to feel secure in their home;
·The Applicant was successfully following a parenting plan including supervised visits prior to entering prison;[113]
·A report on the supervised visits by Relationships Australia noted the close bond between the Applicant and his children and their secure attachment;[114]
·The family violence order was put in place automatically by operation of law following the Applicant’s conviction;[115]
·While the offence was premeditated, that premeditation related to only the immediate period prior to the offence;
·An amendment to the VRO to allow for mediation regarding contact with the children indicated this is consistent with arrangements prior to his imprisonment and forms the basis for the Applicant’s expectations for future contact with the children;[116]
·The Sentencing Judge was satisfied that the Applicant did not intend to harm Ms Larsen in front of the children; and
·The Applicant regrets his offending, recognises the harm his behaviour caused on his ex-wife and children and has proactively taken steps to rehabilitate, including engaging in programmatic interventions.[117]
[113] A1, page 116.
[114] R1, G27, pages 131-132.
[115] Restraining Orders Act 1997 (WA) s 63A.
[116] A1, page 7.
[117] A1, pages 111-115, 139 and 143; A2, pages 62-77.
The Respondent contended that the relevant family violence was very serious and aggravated by the following:[118]
·The offending was pre-meditated, persistent and unprovoked;
·A lifetime VRO was made for the protection of Ms Larsen;
·A reluctance on the part of the Applicant to accept the full extent of what he did reducing his level of remorse (as noted by the Sentencing Judge);
·The Applicant’s limited insighted into the impact of his offending, including a disconnect between his expectations of future contact with his children and Ms Larsen’s fears for her safety, as noted in the Parole Report;
·The fact the violence was witnessed by the children; and
·The lack of evidence of the outcomes of the Applicant’s rehabilitation and the fact that the Parole Report identified unmet treatment needs in this regard.
[118] RSFIC, pages 11-12; Transcript, page 98-101.
As noted earlier, the Sentencing Judge noted the offence was a ‘serious form of domestic violence’.[119] It was noted in the Sentencing Remarks that this was a ‘persistent and brutal’ attack on Ms Larsen.[120] The attack was unprovoked. There was a degree of premeditation, albeit the Tribunal accepts the Applicant’s submission that the premeditation was only in the immediate leadup to the assault. There was an intention to cause Ms Larsen significant harm and while the harm caused was ‘not of the more serious kind’, the results could have been ‘catastrophic’.
[119] R1, G5, page 42.
[120] R1, G5, page 39.
There is no information to suggest that the offending was repeated or cumulative.[121] There is no information the Applicant has reoffended since having been formally warned of the consequences of further acts of family violence.[122]
[121] Direction No 99 paras 8.2(3)(a) and (b).
[122] Direction No 99 para 8.2(3)(d).
As noted above, the Tribunal considers that the Applicant has engaged proactively in efforts to rehabilitate. While the Tribunal notes the Sentencing Judge’s reservations about the Applicant’s degree of remorse, the Tribunal considers that the intervening extended separation from his children and his further efforts at rehabilitation and counselling have given the Applicant greater insight into the serious impacts of his offending. The Tribunal considers his remorse to be genuine.
However, the Tribunal notes the Parole Report identified that with respect to the family violence aspect of the offence, there remains work to be done by the Applicant. The Applicant continues to have unmet treatment needs. While the Applicant has indicated a willingness to undertaking further family violence treatment and accepts he may be required to do such treatment as a condition of his parole, the impacts of such treatment cannot be assumed (noting the Direction guides decision-makers to take account of rehabilitation achieved at the time of the decision).
With respect to the contention that the Applicant’s expectations that he will reach an agreement with Ms Larsen regarding access to the children demonstrate a lack of insight, the Tribunal does not consider this suggests a lack of insight into the impact of the offending on the children, but rather the depth of the Applicant’s desire to reconnect with the children. However, the Tribunal also does not regard that any signs by Ms Larsen that she may be prepared to agree access to the children infers a lack of seriousness in terms of the impact the offending had on her. The Tribunal considers her witness impact statement and the views recorded in the Parole Report record the serious impact that the offending has had on her and on the children.[123]
[123] R3, SB4, pages 1000-1001; R2, SB2, pages 101-104.
The Tribunal finds the Applicant’s offence was a very serious instance of family violence. Given its seriousness, the impact of the offending was not significantly lessened by the fact it was a single instance of such offending. The consequences of that one offence could well have been catastrophic. However, the Tribunal acknowledges the Applicant’s subsequent demonstrations of remorse and efforts at rehabilitation, and the Tribunal considers these somewhat lessen the overall seriousness with which the offending should be regarded.
Overall, the Tribunal considers the Applicant has engaged in serious family violence offending and this consideration weighs very strongly against revocation.
The strength, nature and duration of ties to Australia
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Paragraph 8.3(1) of Direction No 99 provides that:
Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraphs 8.3(2) and (3) of Direction No 99 direct decision-makers to consider the non-citizen’s ties to any children, and the strength, duration, and nature of any family or social links to members of the Australian community who are citizens, permanent residents or people who have an indefinite right to remain in Australia
The Applicant submitted that his removal to Pakistan would have a significant impact on his children, his brother and his family, his former partner Ms Pereyra, his network of friends and the Pakistani religious and cultural community in Perth of which he is a member.
He submits that he has strong links to Australia through his children, brother and sister-in-law and his nieces, friends and recent partner. He has been working or studying throughout his 14 years in Australia. His brother and his family are ready to move to Perth to support him if he is permitted to remain. The impact on his children would be severe, causing permanent separation from the Applicant.
The Respondent accepted that the Applicant’s ties to Australia weighed in favour of revocation. The Minister accepted the Applicant had ties to Australia through his immediate and extended family who would suffer emotional hardship if he were removed, and that he has made a positive contribution through his employment. However, the Respondent contended this consideration did not outweigh considerations in favour of not revoking the Cancellation Decision.[124]
[124] RSFIC, page 12.
The Applicant has lived in Australia since 2009.[125] Although he has returned to visit Pakistan several times, he has made his life here and prior to the offence had been continuously engaged in the community through studying or working. He had no record of offending prior to December 2018.
[125] R1, G7, page 47.
He contended that his most significant ties were through his children who would be severely impacted by his removal.[126] It was submitted more weight must be placed on this consideration in light of the Applicant’s connection with his children. The Tribunal accepts his connection to his children carries additional wight as a tie to Australia. They are Australian citizens, and for the reasons discussed below are unlikely to relocate with the Applicant, or to be in a position to travel to Pakistan to visit him in the foreseeable future.
[126] ASFIC, page 10.
The Applicant’s brother and his family will also be adversely impacted. The Applicant’s brother describes him as ‘an important part of our family’ and it was submitted the family, including the children, would suffer if they are separated from the Applicant.[127] The Applicant’s sister-in-law testified that his return to Pakistan would have a significant impact on the family and in particular the children, noting:[128]
My kids are very close to him, and being the only paternal family here, and they look at him as, like, another sort of copy of their father sort of thing, I would say, because they are very close. And so there are similarities in him and my husband as well, like, (indistinct) kids, playing with kids and doing, you know, like, always be very close to the kids. So it will be something that will leave a big sort of mark, I would say, on their hearts, saying that cha-cha won’t be there anymore for them.
Both the Applicant’s brother and his sister-in-law confirmed that in order to support the Applicant if he is released, they plan to move to Perth if the Cancellation Decision is revoked. It would be difficult for them to see him regularly in Pakistan due to the cost of travelling there and their commitments in Australia.
[127] A1, pages 41-42.
[128] Transcript, page 68.
The Applicant also pointed to a strong history or work in study in Australia prior to his imprisonment. He was undertaking an apprenticeship as a Mechanical Fitter and Machinist and wished to continue this training to become qualified.[129] He has been offered employment on release.[130]
[129] A1, page 30; R1, G28, page 134.
[130] R1, G49, page 223; A1, pages 73-77 (Mr Burghardt).
Several permanent residents provided statements in support of the Applicant, citing his connection to the community, prior good character and commitment to rehabilitation.[131] These statements also included a statement from his sister-in-law’s father who is an Imam in Queensland.[132] For example, Mr Khan noted their close friendship and plans to travel together and start a small business. Mr Burghardt describes his close relationship to the Applicant as his plan to involve him to assist with his business which he was struggling to keep up with on his own.[133] The Applicant contended he was a well-respected member of the Pakistani cultural and religious community in Perth as well as the wider community.[134] In this regard, there was also material indicating he had been a red cross blood donor.[135]
[131] A1, pages 41-45 (his brother), pages 46-51 (his sister-in-law), pages 56-58 (Imam Thanvi), pages 62-69 (Ms Pereyra), pages 70-72 (his friend, Mr Khan), pages 73-77 (Mr Burghardt), pages 78-80 (his friend, Ms Oh); R1, G49, page 223 (Mr Meleka).
[132] R1, G20, page 114.
[133] A1, pages 75-76.
[134] A1, page 30.
[135] A1, pages 25 and 30.
The Applicant also highlighted his ongoing friendship with Ms Pereyra, his former partner. Ms Pereyra testified that she supports the Applicant and wishes him to remain in Australia. She indicated they dated for about a year prior to him going to prison, but broke up when he was in prison because of the difficulties of maintaining the relationship and her need to focus on a new job and her children.[136] She did not indicate she intends for them to resume the relationship at least initially, something the Applicant expressed a desire to do, but indicated she thought he would need time to re-establish himself and his relationship with his children.[137] While the Tribunal did not consider Ms Pereyra was necessarily committed to a romantic relationship with the Applicant on release, it was clear she valued the relationship and strongly supported the Applicant.
[136] Transcript, page 53.
[137] Transcript, page 53.
It is evident that the Applicant’s family ties to Australia are strong. The Applicant’s children reside in Australia and while he has not had contact with them for several years, he is committed to re-establishing contact. He has extended family through his brother, and they strongly wish for him to remain.
The Tribunal accepts the Applicant’s two minor biological children, who are Australian citizens, are likely to suffer detriment if he is removed. His removal to Pakistan would significantly lessen the prospect of contact being re-established in the future. Although the children would be able to continue to live with their mother, they will likely be deprived of the possibility of an in person relationship with their father, who may be able to better support them financially and emotionally from Australia, and with whom they can build and maintain an in person bond.
The Applicant has resided in Australia for approximately more than 14 years. His first offence in Australia was in December 2018, 9 years after he arrived in Australia. In the period prior, he had been of good character, raised his children and contributed to the community through work.
In summary, the Applicant has close ties to the Australian community because his partner, children, former partner, friends and other extended family members reside in the Australian community. Further, the Applicant has been in Australia for an extended period and has made some positive contributions to the Australian community, primarily through his work. The majority of the time he spent in Australia has been law-abiding and positive. However, the Applicant did not spend his formative years in Australia and retains family connections to Pakistan including a mother and seven brothers, albeit he does not have regular contact with some of his brothers.
Overall, the Tribunal finds that the strength, nature and duration of the Applicant’s ties to Australia weigh moderately in favour of revocation of the Cancellation Decision.
Best interests of minor children in Australia affected by the decision

The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[177]
[177] Direction No 99 para 9.1.
The Tribunal noted that in his request for revocation and in statements to the Tribunal the Applicant made the following statements:
I am genuinely worried about returning to Pakistan. I have not maintained my family links over the last 14 years. I do not believe in the culture or value system there. There is no chance that I will fit in anymore.[178]
My family links to Pakistan are not strong due to the duration of time that I have spent in a non-Muslim western culture. I have genuine fear for my personal safety if I was to return to Pakistan permanently. As my awareness of the cultural expectation are low and corporal punishment is part of Shariah law.[179]
Since coming to Australia I have had the opportunity to grow and learn from the more accepting ways of western culture. The freedom of speech and freedom of belief. I have now become accustom [sic] to are something that I know will cause me great problems and difficulties were I to return to my country of citizen permanently. As the closed and extreme minded culture of my country will not accept my new found ways of life and belief and in some cases may put me in physical danger just for simply saying the wrong thing or expressing my views.[180]
[178] A1, page 2.
[179] A1, page 28 (retyped attachment to the revocation request also at R1, G13, page 88)
[180] A1, page 34.
However, when asked in the request for revocation form what he was concerned would happen to him on return to Pakistan, he referred to his ‘biggest fear’ being that he would never see his children again. When asked by the Tribunal at the hearing what concerns he had about returning to Pakistan, the Applicant stated: [181]
Firstly, my concerns are if I have to return to Pakistan permanently, I’m going to lose the connection with my kids which I can maintain while living in Australia. And plus, at the moment the situation in Pakistan, the (indistinct) has been going through so much turmoil. There is uncertainty. And I don’t think I would be able to maintain my financial situation, to help - if I want to help my kids from overseas which is very difficult. Plus, I do have family. Yes, I do have family, but I do have some problems going through - there is some - in the family, I don’t get along well with some of my siblings. And everyone have their own families and kids, and I don’t think they’d be able to help me - especially in financial matters. And especially when we talk about - I did express my interest for future counselling and to further rehabilitation programs. I am going to find it very difficult to attend all those services back in Pakistan.
[181] Transcript, pages 41-42.
Further, as noted in the Respondent’s written submissions, there were records indicating that the Applicant had said he would ‘happily’ return to Pakistan if his appeals against deportation were unsuccessful.[182]
[182] RSFIC, page 16, para [54] quoting R2, SB2, page 90 – a Management and Placement record dated 10 May 2022 from the Department of Justice.
He confirmed that he has returned three times to Pakistan since moving to Australia, the last time in 2015 when he travelled with his ex-wife, Mstr L and Ms A to visit family in Karachi. His mother and seven brothers remain in Pakistan. He is in contact with his mother fortnightly.
The Applicant did not contend that his return would be in breach of Australia’s non-refoulement obligations.[183] When the Applicant’s representative was asked about the comments regarding concerns the Applicant raised about returning to Pakistan she stated:[184]
MS EDIS: So, of course, he is going to face challenges. And there will be impediments to return but it’s also accepted that they’re not going to be - yes, overly persuasive in terms of determinative of the outcome.
SENIOR MEMBER: All right.
MS EDIS: We would say, really, that it’s neutral - the position is neutral.
[183] Direction No 99 para 9.1(3).
[184] Transcript, page 80.
While the Applicant raised some concerns about returning to Pakistan, he did not raise any claims to be owed protection either under refugee or complementary protection grounds. In the Tribunal’s view, on the information before it the Applicant’s circumstances are not such as would suggest a non-refoulement claim arises.[185]In any event, the Tribunal notes that the Applicant has never held a protection visa or had a protection visa refused in Australia. He is not an unauthorised maritime arrival. Accordingly, he would not be the subject of the bar preventing him from making a protection visa application in the future if the cancellation decision is not revoked. Should the Applicant have claims for protection arising from his return to Pakistan, they would be considered in a protection visa application process.[186] He would not be liable for removal while any such application is determined.[187]
[185] Direction No 99 para 9.1(3).
[186] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (Keifel CJ, Keane, Gordon and Steward JJ (with whom Gageler J agreed)) at [9]; Direction No 99 para 9.1.2(2).
[187] Direction No 99 para 9.1.2(3).
While this consideration refers to non-refoulment obligations, it also makes reference to detention and removal highlighting that there are a range of legal consequences of a decision not to revoke the cancellation of the Applicant’s visa. The consequences of a visa refusal or cancellation under s 501 or related provisions include:
·Unlawful status;
·The likelihood of becoming subject to detention and/or removal;[188]
·Refusal of other visa applications and cancellation of other visas;[189]
·A prohibition on applying for other visas;[190] and
·Periods of exclusion and special return criteria may apply.[191]
[188] Migration Act ss 189, 196, 197C and 198.
[189] Migration Act s 501F.
[190] Migration Act s 501E.
[191] Migration Act s 503, special return criteria (SRC) 5001.
Where a visa application is refused or a visa is cancelled on character grounds under s 501, this results in deemed refusal of any other undecided non-protection visa applications and deemed cancellation of any other (non-protection) visa held.[192] Generally, if a visa is cancelled its former holder becomes an unlawful non-citizen immediately after cancellation.[193] Under s 189 of the Migration Act, the Applicant must be detained and removed as soon as reasonably practicable under s 198.[194] As no protection finding has been made with respect to the Applicant there is no information to suggest he would be detained indefinitely. He would be subject to removal as soon as his appeal rights are exhausted, or he applies for another visa if eligible to do so.
[192] Migration Act s 501F.
[193] Migration Act s 15.
[194] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the applicant’s detention had at all times been lawful: at [112]-[122].
Under s 501E, a person cannot apply for another visa while they remain in Australia if:
·They have been subject to a visa refusal or cancellation under s 501, and
·The decision has not been set aside or revoked prior to their making the visa application.
Such an application is not a valid application for a visa.[195] The only exceptions are an application for a protection visa or a visa specified in the Migration Regulations 1994 (the Regulations) (i.e. reg 2.12AA).[196] The only visa currently prescribed in those Regulations is a Bridging R (Class WR) visa.[197] If the original decision made under s 501 is set aside or revoked, any refused visa applications or cancelled visas are revived.[198] In addition, certain visas are subject to special return criteria (SRCs). For the visa subclasses to which SRCs apply, the SRC is prescribed in Schedule 2 to the Regulations as a criterion for visa grant. SRC 5001(c) provides for permanent exclusion if the visa applicant has previously had a visa cancelled under s 501 and there was no revocation of the decision under s 501CA. There is no provision for a visa applicant to whom SRC 5001 applies to request a waiver of the permanent exclusion.
[195] Migration Act s 46(1)(d).
[196] Migration Act s 501E(2).
[197] Migration Regulations 1994, Reg 2.12AA.
[198] Migration Act s 501F(4).
The Tribunal notes that the Applicant is likely to face a range of legal restrictions on his capacity to apply for further visas in Australia or to return to Australia if his visa remains cancelled and he is removed to Pakistan. The effect of those restrictions is that the Applicant is likely to remain in immigration detention while any appeal processes or further visa applications (including a protection visa application if one is made) are finally determined. If he is removed, the Tribunal accepts it is unlikely he would be able to meet the criteria for a visa to return.
While the Tribunal accepts there will be legal consequences of a decision not to revoke the cancellation of the Applicant’s visa, the Tribunal does not consider that these carry weight in favour of revocation, particularly as no non-refoulment claims have been raised and the Applicant did not suggest the legal consequences of cancellation were ‘another reason’ why the visa cancellation should be revoked. Having regard to the Applicant’s circumstances and the information before the Tribunal, the Tribunal gives this consideration neutral weight.
Extent of impediments if removed
Paragraph 9.2 of Direction No 99 provides that taking into account the matters identified in sub-paragraphs 9.2(1)(a), (b) and (c) of Direction No 99, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of the basic living standards available to other citizens of Pakistan. The matters identified under sub-paragraphs 9.2(1)(a), (b) and (c) are:
·The Applicant’s age and health;
·Whether there are substantial language or cultural barriers; and
·Any social, medical and/or economic support available to the Applicant in their country.
The Applicant’s comments regarding his return to Pakistan were noted above under the analysis of the legal consequences of removal consideration. The Tribunal has also detailed his representative’s submissions that these considerations are neutral or not determinative in terms of their impact on the outcome of the weighing exercise.[199]
[199] Transcript, page 80.
Overall, the Applicant raised concerns that he would suffer being separated from his children and that he would struggle to continue his rehabilitation and obtain mental health supports in Pakistan. He also claimed to have lost connection with family members and the culture of Pakistan during his years in Australia.
With respect to the last claim, the Tribunal does not accept this is a significant issue for the Applicant noting he has returned several times to Pakistan since coming to Australia, including taking his ex-wife and children to visit family there. He maintains close contacts with his mother, and he spent his formative years until he was 23 years old, living and studying in Pakistan. Further, the Applicant claimed close religious and cultural links to the Pakistani community in Perth and was receiving religious guidance from his sister-in-law’s father who is an Imam, indicating an ongoing engagement with the Muslim faith and Pakistani culture.[200]
[200] A1, page 57.
There was psychological evidence that the Applicant was suffering from depression at the time of the offence, most likely Major Depressive Disorder.[201] Treatment for his mental health is an ‘area of rehabilitation that has not been addressed adequately’ according to Dr Yoxall.[202] Dr Yoxall indicated the Applicant would need mental health support reintegrating into the community in Australia and that return to Pakistan would have a substantial impact on his mental health.[203] The Applicant submitted documents suggesting that mental health is stigmatised in Pakistan and the reasons for that.[204]
[201] A2, page 42.
[202] A2, page 44.
[203] A2, pages 44-45.
[204] A2, pages 80-88.
The Tribunal accepts the Applicant will face some issues of adjustment on return to Pakistan and will suffer significant ongoing emotional distress from separation from his children, this is likely to impact his mental health and could worsen his risk for depression. The Tribunal also accepts that his access to mental health services may be more limited in Pakistan, including due to social stigma associated with perceptions around mental health. However, there is no information to suggest the Applicant would not have the same access to such services as are available to other citizens of Pakistan. In addition, the Tribunal considers the Applicant has experienced the benefits of accessing mental health support services when needed in Australia since his offence such that he does not consider accessing services to be taboo. He expressed motivation to continue treatment for his mental health if needed.
Although the Applicant expressed some concern that he would potentially be in danger for expressing views out of step with cultural norms in Pakistan, there was no information offered to support this claim. Indeed, the Applicant claimed to be a valued member of the social and religious Pakistani communities here, spent his formative years in Pakistan and has family members there with whom he is in regular contact. The Tribunal does not consider he would face any impediments on return on this basis.
Having regard to the Applicant’s circumstances and the information before the Tribunal, and notwithstanding submissions from the parties that the consideration should be regarded as being neutral, the Tribunal gives this consideration slight weight in favour of revocation of the Cancellation Decision.
Impact on victims
Paragraph 9.3 of Direction No 99 states:
(1)Decision-makers must consider the impact of the section 501 or 501CA 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 information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The Applicant’s ex-wife, Ms Larsen, was the victim of his offence. Material before the Tribunal included a victim impact statement[205] and a recorded summary of her comments to authorities in the context of consideration of the Applicant’s parole.[206] Ms Larsen has a lifetime VRO in place for her protection. Information before the Tribunal suggests she recently agreed to this being varied to allow for mediation with the Applicant, however no such mediation has yet been agreed. As discussed earlier, it was submitted the Tribunal should infer from this that Ms Larsen is open to a parenting agreement in relation to the children. However, for the reasons outlined above, the Tribunal does not consider that inference should be drawn from the material before it.
[205] R3, SB4, page 1000.
[206] R2, SB2, page 101.
Ms Larsen’s views on the impact that the Cancellation Decision would have on her and her family members are not known. In such circumstances, and having regard to the submissions made by the Respondent and Applicant regarding this consideration, the Tribunal gives neutral weight to this consideration in the Applicant’s circumstances.
Impact on Australian business interests
Paragraph 9.4 of Direction No 99 states:
(1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Although the Applicant maintained he had offers of employment on his release from detention, he did not suggest that his removal from Australia would adversely impact on Australian business interests. Accordingly, and having regard to the submissions of the Applicant and Respondent, the Tribunal affords neutral weight to this consideration in the Applicant’s circumstances.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Act.
The Tribunal has therefore considered whether there is ‘another reason’ why the Cancellation Decision should be revoked, having regard to the primary and relevant other considerations in Direction No 99.
Paragraph 7 of Direction No 99 sets out the way in which the relevant considerations are to be taken into account and weighed.
For the reasons set out above, the Tribunal considers that the protection of the Australian community from criminal or other serious conduct primary consideration, weighs strongly against the revocation of the Cancellation Decision.
The consideration of family violence committed by the Applicant weighs very strongly against revoking the cancellation of the visa.
The strength, nature and duration of the Applicant’s ties to Australia weighs moderately in favour of the revocation of the Cancellation Decision.
The best interests of the children impacted by the Cancellation Decision overall weighs strongly in favour of revocation.
The expectations of the Australian community weighs strongly against the revocation of the Cancellation Decision.
With regard to the other considerations that were relevant, the legal consequences of the decision was given neutral weight. The considerations of the impact on victims and the impact on Australian businesses were also given neutral weight.
The extent of impediments if removed other consideration weighs slightly in favour of the revocation of the Cancellation Decision.
The weighing exercise in the Applicant’s case is not an easy one. The Tribunal has acknowledged his attempts to rehabilitate and accepts that he regrets his offending. The Tribunal also accepts he wishes to be involved again in his children’s lives and wants to make amends for the impact his offending has had on them. However, the Applicant engaged in a serious assault on his former partner, without provocation. He did so in the presence of his children. Family violence of that kind is something the community has little tolerance for, as reflected in the explicit terms of Direction No 99.
Having weighed the considerations, the Tribunal considers that the primary considerations of the protection of the Australian community, family violence and the expectations of the Australian community, which all weigh strongly or very strongly against revocation of the Cancellation Decision, outweigh the other primary considerations of the strength, nature and duration of ties and the best interests of the children impacted by the decision. They also outweigh the impediments the Applicant would face on return to Pakistan.
Accordingly, the Tribunal finds the correct or preferrable decision is to affirm the decision under review.
DECISION
The decision of the delegate of the Respondent dated, 20 February 2023, not to revoke the cancellation of the Applicant’s Class BS Subclass 801 Partner visa is affirmed.

I certify that the preceding 235 (two hundred and thirty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member S Burford

..................[Sgd]......................................................
Associate
Dated: 23 May 2023

Dates of hearing: 26 April 2023 and 28 April 2023

Solicitors for the Applicant: Ms J Edis, Putt Legal

Solicitors for the Respondent: Mr A Burgess, Sparke Helmore Lawyers

[2023] AATA 1327

23 May 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Natural Justice

Dates of hearing:	26 April 2023 and 28 April 2023
Solicitors for the Applicant:	Ms J Edis, Putt Legal
Solicitors for the Respondent:	Mr A Burgess, Sparke Helmore Lawyers