RGCZ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 2768

RGCZ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2768 (28 August 2023)
Division:GENERAL DIVISION
File Number: 2021/2643
Re:RGCZ
APPLICANT

Minister for Immigration, Citizenship and Multicultural Affairs And
RESPONDENT

DECISION
Tribunal:Senior Member C. J. Furnell
Date:28 August 2023
Place:Melbourne

The Tribunal sets aside the reviewable decision and, in substitution, decides not to refuse to grant the applicant a visa under s 501(1) of the Act.
.........................[SGD]...............................................
Senior Member C. J. Furnell
Catchwords
MIGRATION – refusal to grant Partner (Provisional) (Class UF) visa – Migration Act 1958 (Cth) s 501(1) – whether applicant for visa passes character test – risk applicant would engage in criminal conduct in Australia – risk not remote or minimal – applicant does not pass character test – whether to exercise discretion to refuse to grant the applicant the visa – Direction 99 – primary and other considerations – decision under review set aside and substituted
Legislation
Family Law Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth)
Cases
Aghbolagh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 43
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94
BLBY v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 128
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104
CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514
Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
El Ghoul and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 397
Esber v Commonwealth of Australia (1992) 174 CLR 430
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
Frugtniet v Australian Securities and Investments Commission [2023] FCAFC 14
FYBR v Minister for Home Affairs (2019) 272 FCR 454
GWRV v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 39
Hughes v R [2017] HCA 20
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16
Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 94
Lewer v Minister for Home Affairs [2023] FCAFC 121
Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116
MDXJ v Secretary, Department of Social Services [2020] FCA 1767
Meyrick v Minister for Home Affairs [2020] FCA 677
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
Minister for Immigration and Citizenship v Anochie [2012] FCA 1440
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ZRTY [2022] FCA 1529
MQGT v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 291
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
PQSM v Minister for Home Affairs [2019] FCA 1540
RGCZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 201
Salahuddin v Minister for Immigration and Citizenship [2013] FCA 588
Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 46
Trout v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 583
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
XSLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1138
Secondary Materials
Direction No 99 — Migration Act 1958 — Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014
‘Subclass 309: Partner (Provisional) visa’, Australian Government, Department of Home Affairs (Web Page, 8 August 2023) Can’t You Use Your Plan?’, NDIS (Web Page)
< FOR DECISION
Senior Member C. J. Furnell
28 August 2023

The issue before the Tribunal is whether a particular discretion to refuse to grant the applicant a visa is exercisable in the circumstances and, if it is, whether it should be exercised.
In April 2021, a delegate of the respondent decided to refuse to grant the applicant a Partner (Provisional) (Class UF) visa (the “visa refusal decision”).[1] The decision was in purported exercise of a discretion to refuse to grant a visa to a person who fails to satisfy the decision-maker that the person passes the “character test.”
[1] G2, pp.11-15, with “G” being a reference to a copy document given by the respondent under s 501G of the Act, as included in 1052 pages of copy documents lodged by the respondent.
The discretion arises under s 501(1) of the Migration Act 1958 (Act). The character test is set out in s 501(6) of the Act.
A person fails the character test if, amongst other things, in the event the person was allowed to enter or remain in Australia, there is a risk that he or she would engage in criminal conduct in Australia.[2] This was the aspect of the character test which the delegate was not satisfied that the applicant passed.
[2] Act, s 501(6)(d)(i).
As the sponsor of the applicant’s application for the visa, the applicant’s wife (“RGCZ”) applied to have the visa refusal decision reviewed by the Tribunal.[3]
[3] RGCZ is a person who would have been entitled to seek review of the visa refusal decision under Part 5 of the Act if the decision had been made on another ground: see Act ss 338(5), 347(2)(b) and 500(3).
In August 2021, the Tribunal decided to affirm the visa refusal decision. That decision was appealed and, ultimately, quashed in December 2022 when the Full Court of the Federal Court of Australia caused the matter to be remitted to the Tribunal.
More will be said later about the role of the Tribunal in now undertaking the review required of it on remittal. It generally entails, however, the Tribunal performing the same function and exercising the same power, being subject to the same constraints and addressing the same question or questions as the respondent’s delegate.
As they were for the delegate, the questions ultimately to be addressed in this proceeding are whether the Tribunal is satisfied that the applicant passes the relevant character test and, if not so satisfied, whether it should refuse to grant the visa for which he applied in exercise of the discretion conferred by s 501(1) of the Act.
As to the first question, I am not satisfied that the applicant passes the Act’s character test. As for the second question, however, I have decided to set aside the visa refusal decision and, in substitution, have decided not to refuse to grant the applicant a visa under s 501 of the Act.
Before outlining my reasons for answering those two questions in that way, mention should first be made of the material which was before the Tribunal in this proceeding and of some aspects of the procedural and factual context.
MATERIAL CONSIDERED
In undertaking its review of the visa refusal decision, the Tribunal is obliged to make “the correct or preferable decision” on the material before it.[4]
[4] See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (Bowen CJ and Deane J); Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [96]–[98] (Hayne and Heydon JJ).
The material before the Tribunal included evidence adduced at the hearing and certain documentary material lodged with the Tribunal prior to the hearing.
As for evidence adduced at the hearing, the Tribunal heard from RGCZ, the applicant and RGCZ’s sister (“Ms HS”).
As for documentary material lodged with the Tribunal, it comprised:
(a)1052 pages of copy documents lodged by the respondent with the Tribunal marked as Exhibit R1 (the “RTB” documents).
(b)Transcripts of the August 2021 Tribunal hearing marked as Exhibit R2 (“TR 8/21”).
(c)99 pages of copy documents lodged by the applicant with the Tribunal marked as Exhibit A1 (the “ATB” documents).
Included within the RTB documents were:
(a)documents given by the respondent under s 501G of the Act;
(b)documents lodged by the respondent and applicant with the Tribunal (including submissions made by the applicant and respondent) in connection with a review of the visa cancellation decision heard by the Tribunal in August 2021;
(c)the Tribunal’s decision and reasons of August 2021;
(d)documents lodged in connection with a Federal Court judicial review application with respect to that Tribunal decision;
(e)April 2022 orders and reasons of Anderson J in dismissing that judicial review application;
(f)documents lodged in connection with an appeal to the Full Federal Court from the decision of Anderson J; and
(g)December 2022 orders and judgment of the Full Court.
Before the hearing of this proceeding, the parties made submissions about the documentary material that had been lodged with the Tribunal. They comprised the applicant’s statement of facts, issues and contentions of 18 April 2023 (the “A SFIC”), the respondent’s statement of facts, issues and contentions of 23 May 2023 (the “R SFIC”) and the applicant’s statement of facts, issues and contentions in reply of 29 May 2023 (the “A Reply”).
ASPECTS OF FACTUAL CONTEXT
The applicant is 33 years old and a citizen of Lebanon. His parents, five brothers and four sisters live in Lebanon.[5] Apart from RGCZ and his children, the applicant has no family in Australia.[6]
[5] RTB, pp.212-222, 266-268, 271, 289-290.
[6] RTB, pp.196, 269.
He first arrived in Australia in May 2013 as an unauthorised maritime arrival. In August 2013, he was granted a bridging visa and released into the community.
In November 2014, the applicant met RGCZ. She is a 29-year-old Australian citizen.
In January 2015, the applicant sought and obtained RGCZ’s father’s consent to them being married. It was then that she and the applicant are said to have committed to a shared life together to the exclusion of all others.[7] I note, however, that the applicant also stated that he and RGCZ had dated for around six months before deciding to get married.[8]
[7] RTB, pp.232, 248.
[8] RTB, pp.285, 360.
In May 2015, the applicant was convicted of driving a vehicle during a disqualification period. He was fined and disqualified from holding a licence for 12 months.[9]
[9] RTB, p.34: National Police Certificate of March 2019.
In around June 2015, the applicant and RGCZ began to live together, at RGCZ’s parents’ home.[10]
[10] RTB, p.666.
In August 2015, the applicant and RGCZ participated in a religious marriage ceremony[11] (albeit noting that registration of the marriage did not occur until September 2015[12]).
[11] RTB, pp.208, 284, 312, 676.
[12] RTB, p.432.
Their marriage triggered conflict with RGCZ’s family, especially with her father, given that, while in Lebanon in 2012 and at the instigation of her father, RGCZ had been forced to participate, as bride, in a religious marriage ceremony, the groom being her paternal first cousin.[13]
[13] RTB, pp.666-667 (applicant statement of June 2021); RTB, p.675 (RGCZ’s statement of July 2021). See A SFIC [20].
In August 2015, the applicant was convicted of driving whilst disqualified and sentenced to a 12-month community corrections order.[14]
[14] RTB, p.34: National Police Certificate of March 2019.
In March 2016, RGCZ gave birth to a son (“Mr S1”).
Shortly after that birth, also in March 2016, an incident occurred which resulted in the applicant being charged with assaulting RGCZ, charges which were, however, “Struckout – Withdrawn” in September 2016.[15]
[15] RTB, p.183.
What that incident involved is variously described.
(a)In a police incident report, it is said that the applicant hit RGCZ on the right-hand side of her face after they had been arguing in their bedroom. This had caused RGCZ to run out of their house, yelling to get her neighbours to assist her. The applicant followed her outside, placed his hand over her mouth to stop her screaming and dragged her back towards the house. Police expressed concerns for the welfare of both RGCZ and Mr S1.[16]
(b)RGCZ’s description of the incident has moderated over time. She initially told the police that the applicant had hit her. She has since said that what she told the police did not happen.[17] In her statement in June 2021, RGCZ said the applicant repeatedly pushed her, trying to make her lie down.[18] In evidence given before the Tribunal in August 2021, RGCZ stated that, when in their bedroom, the applicant had wanted her to lie down on the bed “just as a cuddle” and “there was just a lot of pushing” her towards the bed.[19] In an April 2023 statement, RGCZ says she does not recall being hit but that her memory of the incident is imperfect. She says she does recall, however, that the applicant pushed her while she was lying in bed.[20] Whatever was involved, it is clear that RGCZ considered that punishment for the applicant was warranted.[21]
(c)As for the applicant, his description of the incident has varied. In May 2016, when interviewed by personnel from the Department of Health and Human Services, the applicant was said to have “…acknowledged that he had slapped Ms …[RGCZ] in the face, however did not consider this family violence, stating 'I didn't kill her’”.[22] In his June 2021 statement, he said he had kept grabbing at RGCZ and then, after she had gone outside their house, he had grabbed her hand and covered her mouth to stop her screaming.[23] In evidence given before the Tribunal in August 2021, however, he acknowledged that, in the course of the incident, he struck RGCZ with an open hand.[24] In his April 2023 statement, the applicant accepted that he had pushed RGCZ but not that he hit her. “My memory of that day is that I pushed …[RGCZ] - I put my hand on her shoulder to push her and my hand touched her face by accident. I did not mean to strike her.”[25]
[16] RTB, pp.472-473.
[17] TR 8/21, p.6.
[18] RTB, p.678.
[19] TR 8/21, p.5.
[20] ATB, p.24.
[21] RTB, p.678: RGCZ supported the subsequent imposition of a basic intervention order so that the applicant would feel punished.
[22] RTB, p.499. Before the Tribunal in August 2021, the applicant denied ever having said this: RTB, p.769; Tr 8/21, p.16 (p.55 of the PDF document of the transcript of Day 1 of the August 2021 Tribunal hearing).
[23] RTB, pp.667-668; A SFIC 28.
[24] TR 8/21, p.14 (p.53 of the PDF document of the transcript of Day 1 of the August 2021 Tribunal hearing). In cross examination, the applicant claimed that this evidence was given in relation to the matter as a whole, not specifically in relation to the March 2016 incident. That claim is difficult to accept. First, the applicant said he did not remember what he had said to the Tribunal in August 2021. Second, the transcript makes clear that the applicant’s evidence was in response to questions posed concerning the March 2016 incident.
[25] ATB, p.30.
I digress to note that I have found that the applicant engaged in family violence in the context of the March 2016 incident. While I will elaborate on this finding later, the applicant acknowledges that it involved him physically interacting with RGCZ (although the nature of the physical interaction he has acknowledged – whether slapping, striking, grabbing or pushing her – has differed), her then running out of their house and screaming, him covering her mouth and him trying to drag her back to their house.
On 30 March 2016, Victorian police obtained a full exclusionary interim intervention order against the applicant. As understood by the Tribunal, this would have required that the applicant not communicate with RGCZ or Mr S1 or go near to where they lived.[26]
[26] RTB, p.498.
While the applicant then moved out of the house in which he had lived with RGCZ and Mr S1,[27] in breach of the intervention order he continued to be in contact with RGCZ and Mr S1. Every day, he went to see RGCZ and Mr S1, “take them for a coffee, to the park. I just did not live in the house…”[28]
[27] Not returning, apparently until November 2016: RTB, p.657.
[28] RTB, pp.668, 678-679.
In early May 2016, RGCZ took Mr S1 to the Royal Children’s Hospital where he was diagnosed as suffering from a fractured femur. Victorian forensic services were said to have determined that “…the injury was not due to accident”.[29]
[29] RTB, pp.181, 498, 623.
As acknowledged by the respondent, the material before me is not supportive of a conclusion that the applicant caused the injury to Mr S1.[30] Nevertheless, there is conflicting material before the Tribunal as to the capacity of the applicant to have been the cause of that injury.
(a)Before the Tribunal in July 2017, the applicant stated that he was “not around at the time because he had an intervention order…”.[31] As just mentioned, however, despite the intervention order, the applicant states that he was visiting RGCZ and Mr S1 daily.
(b)In March 2020, the applicant stated, in relation to Mr S1, that because RGCZ had recently had a car accident, the applicant “…had to help her a great deal with his care following his birth; feeding him, changing his nappy, bathing him, nursing him to sleep and taking him with me to the shopping Centre to give my wife a break.”[32] In 2019, when speaking of the time after Mr S1’s birth, RGCZ said “I thank god that I had my darling husband by my side to help me…”[33]
(c)In June 2021, however, both RGCZ and the applicant suggested that the applicant did little in terms of care for Mr S1 and, in particular, did not take him anywhere. According to RGCZ, the applicant “…wouldn’t take …[Mr S1] anywhere – I was very attached to him and did not want to be away from him for longer than I absolutely had to be.”[34] As for the applicant, in June 2021 he stated that RGCZ “…did not leave me alone with …[Mr S1] - he was my first child, and I did not know how to feed him or do things like change a nappy.”[35]
(d)In a May 2016 protection report to the Children’s Court, the Department of Health and Human Services sought a finding that Mr S1 was in need of protection. In the report RGCZ was said to have stated that she never left Mr S1 with the applicant unsupervised but then said the applicant looked after Mr S1 when she showered.[36]
[30] R SFIC [40].
[31] RTB, p.182.
[32] RTB, p.287.
[33] RTB, p.378.
[34] RTB, p.679.
[35] RTB, p.668.
[36] RTB, p.498.
As a result of that injury to Mr S1, he was placed under the care of a maternal aunt pursuant to an interim accommodation order.[37] There followed a series of such orders and family protection orders.[38] Recommendations made in relation to certain of those orders included that the applicant engage with a men’s behavioural change program, go to family violence counselling and engage with a parenting program.[39] Indeed, as at March 2017, the applicant was said to be currently attending a men’s behavioural change program and to have previously engaged with a psychologist.[40]
[37] RTB, p.517: the placement of Mr S1 under the maternal aunt’s care ended on or around 1 June 2016 when Mr S1 was placed in a third party’s care.
[38] RTB, p.657.
[39] RTB, pp.508, 520.
[40] RTB, p.636.

In November 2016, an intervention order was made but not served because of an inability to do so.[41]
[41] RTB, p.63.
RGCZ spent over a month in Lebanon from early December 2016.[42] She said the trip was to enable her and Mr S1 to meet with the applicant’s family.[43]
[42] RTB, p.250.
[43] RTB, p.680.
In March 2017, the applicant applied for a safe haven enterprise visa (being a class of protection visa for the purposes of the Act[44]). While there is little in the material before me concerning this application, the Tribunal understands from submissions made on behalf of the applicant that it was refused in early 2018.[45]
[44] Act, s 35A(3A).
[45] RTB, pp.322, 713. See R SFIC [12], which refers to the Immigration Assessment Authority having affirmed in January 2018 a decision to refuse to grant the visa to the applicant. The applicant and RGCZ stated that it was refused in December 2017: RTB, pp.665, 682.
Also, in March 2017, RGCZ gave birth to a daughter (“Ms D1”).
In April 2017, an incident occurred which resulted in the applicant being charged with, and convicted of, “recklessly cause injury” and “contravene family violence intervention order – intend fear/harm.”[46]
[46] RTB, p.34.
Again, what that incident involved is variously described.
(a)In a preliminary brief, the police informant in relation to the charges against the applicant stated that, in April 2017, the applicant hit RGCZ “a number of times” after she had refused to assist the applicant in undertaking activity on the internet. After she again refused to assist, the applicant stood over RGCZ and hit her again. In between hitting her, the applicant would give RGCZ water and then start hitting her again. As a result, RGCZ could not see out of her right eye. When police attended the next day, the applicant was said to have denied that RGCZ was then present. RGCZ was located hiding in neighbouring premises and was observed to have facial injuries. The applicant was said to have then admitted hitting RGCZ once after losing his temper. When subsequently interviewed by police, however, the applicant stated that he had only pushed RGCZ twice with an open hand and that he had put her in a headlock, making her read certain instructions.[47]
(b)RGCZ’s description of the incident has, again, moderated over time. What she initially told the police (as well as officers of the Department of Families, Fairness and Housing[48]) is reflected in the preliminary brief. She subsequently said that some of the things that she said in her original statement to the police were not true. She claimed that she had been angry and felt pressured to make a statement at the time.[49] In her statement in June 2021, RGCZ said that she and the applicant had been arguing. He lunged towards her to get his phone as she threw it on the ground and hit her face extremely forcefully, but unintentionally.[50] Before the Tribunal in August 2021, she stated that she had thrown the applicant’s phone onto the floor, he tried to grab it and punched her at the same time. In her April 2023 statement, RGCZ says she remembers the applicant hitting her in the face only once with a closed fist.[51]
(c)As for the applicant, his evidence before the Tribunal in July 2017 was that he had reached to grab his phone from RGCZ and in doing so his “hand landed on her face.”[52] Before the Tribunal in August 2021, the applicant initially stated in relation to RGCZ that he had “slapped her on the arse”. He then acknowledged slapping her with an open hand and that his “hand touched her eye”.[53] As also reflected in his June 2021 statement, he says he hit her only once. He said that after RGCZ had grabbed his phone and thrown it on the ground, out of anger, he struck her in the face. When the police came the next day, he says he told them that RGCZ was outside in the backyard.[54] In his April 2023 statement, he acknowledges having hit RGCZ. He did so, he says, with the back of his hand.[55] At the hearing of this proceeding, however, the applicant stated that he could not recall whether he hit RGCZ with an open hand or a fist.
[47] RTB, pp.63-64.
[48] RTB, p.607.
[49] RTB, p.180.
[50] RTB, p.680.
[51] ATB, p.24.
[52] RTB, p.180.
[53] TR 8/21, p. 20 (pp. 59 of the PDF document of the transcript of Day 1 of the August 2021 Tribunal hearing).
[54] RTB, pp.669-670.
[55] ATB, p.30.
In May 2017, the applicant pled guilty to, and was convicted of, “recklessly cause injury” and “contravene family violence intervention order – intend fear/harm.” He was then sentenced to a term of imprisonment for 42 days and a 12-month community correction order, with conditions involving supervision and 150 hours of community work, and requiring that the applicant attend, as directed, a mental health assessment and undergo treatment and offending behaviour program/s.[56]
[56] RTB, pp.34-37.
Also in May 2017, the subsisting intervention order was, apparently, varied so as to allow the applicant to return to living with RGCZ and the children.[57] Orders were made against the applicant requiring, amongst other things, that he not commit family violence against RGCZ or Mr S1.[58]
[57] RTB, pp.47, 670.
[58] RTB, p.47.
That did not, however, remain the position for long. In early June 2017, interim protection orders were made against the applicant requiring, amongst other things, that he not contact Mr S1 or Ms D1 or go within 200 meters of where he or she lived.[59] The orders were generally subject to anything permitted under the Family Law Act 1975.
[59] RTB, pp.48-49, 51-52.
In early July 2017, orders were made apparently under the Family Law Act 1975:
(a)requiring that the applicant attend a psychologist to address anger management issues and complete a men’s behavioural change program; and
(b)permitting the applicant to have supervised contact with Mr S1 for an hour, twice a week.[60]
[60] RTB, p.180.
Also in early July 2017, the applicant’s bridging visa was cancelled and he was placed in immigration detention.[61] Shortly thereafter, the decision to cancel that visa was affirmed by the Tribunal.[62]
[61] RTB, p,202.
[62] RTB, p.177-187.
In January 2018, RGCZ would appear to have applied to have basic intervention orders put in place instead of a “full order,” as she and the children wanted to have contact with the applicant.[63]
[63] RTB, pp.54, 57: the applications were expressed to have been made by Ms D1 and Mr S1.
In February 2018, however, intervention orders were made against the applicant requiring, amongst other things, that he not contact Ms D1 or Mr S1 or go within 200 meters of where they lived. The orders expired in July 2018.[64]
[64] RTB, pp.60-61.
In February 2018, RGCZ and her children left Australia for Lebanon. She stayed there for around a year.[65] At that time, she had apparently decided to leave Australia to be with the applicant in Lebanon instead of living as a single parent in Australia.[66]
[65] RTB, p.250.
[66] RTB, pp.380-381.
The applicant left Australia in June 2018.[67] Subject to a brief visit to Turkey in December 2018[68] (when RGCZ was also in Turkey[69]), he has resided in Lebanon ever since.
[67] RTB, p.206.
[68] RTB, p.238.
[69] RTB, p.250.
RGCZ and the children returned to Australia from Lebanon in February 2019. She did so to give birth to their third child, as medical services available to her in Lebanon were not considered suitable.[70] Her plan then was to return to Lebanon to live with the applicant after the baby’s first vaccination.[71]
[70] RTB, p.671.
[71] RTB, p.382.
In June 2019, the applicant applied for a Partner (Provisional) (Class UF) visa, an application sponsored by RGCZ.
In July 2019, RGCZ gave birth to her third child, a son (“Mr S2”).
In around October 2019, RGCZ and her children went back to Lebanon. They returned to Australia in December 2019, intending to go back to Lebanon in April 2020.[72]
[72] RTB, pp.295, 671.
Travel restrictions imposed in connection with the COVID-19 pandemic served to delay RGCZ’s return to Lebanon until June 2022. After two to three months spent in Lebanon, she and the children returned to Australia in August 2022.[73]
[73] ATB, p.24 (RGCZ’s statement of April 2023).
DOES THE APPLICANT PASS THE CHARACTER TEST?
Under s 501 of the Act a person does not pass the character test if any of a number of circumstances applies.
In submitting that I should not be satisfied that the applicant passes the character test provided for in s 501 of the Act, the circumstance said by the respondent to apply is the one on which the respondent’s delegate relied in making the visa cancellation decision.[74] It is prescribed in s 501(6)(d)(i) of the Act. For it to apply, there would need to be a risk that the applicant would engage in criminal conduct in Australia were he allowed to enter or remain in Australia.
[74] RTB, p.28.
There are other circumstances prescribed in s 501 (and, more particularly, in s 501(6)(d)) of potential application in this proceeding. Indeed, in the A SFIC, the applicant submissions were directed to all the circumstances prescribed in s 501(6)(d),[75] not simply the circumstance prescribed in s 501(6)(d)(i).
[75] A SFIC [53].
I do not address that broader range of circumstances. Instead, I accept the respondent’s submission that the circumstance on which the delegate relied and which is prescribed in s 501(6)(d)(i) of the Act applies. Hence, the capacity of the Tribunal to rely on a circumstance other than that relied upon by the respondent’s delegate in determining that a person fails the s 501 character test is not in issue in this proceeding.[76]
[76] See Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 94 at [25], where it was said that the “…Tribunal’s place in an administrative decision-making continuum necessarily means that the issues which emerge for its consideration will be shaped not just by the criteria specified in or with respect to the statutory power it is exercising afresh but also by the way in which those issues have been developed at anterior stages of the continuum.”
As is inherent in having accepted the respondent’s submission, I find that there is a risk that the applicant would engage in criminal conduct in Australia were he allowed to enter or remain in Australia.[77]
[77] I note no submissions were made directed to distinguishing between the risk in any period applicable to the visa for which the applicant applied and the risk, if any, beyond that period: see Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 46 [12]-[14].
The respondent and the applicant were ad idem in terms of the legal approach to be adopted in determining whether such a risk exists. They both submitted that:
(a)A finding of risk needs to be based on evidence;
(b)Such a finding must be based on more than simply evidence of past conduct;[78]
(c)The risk must be more than minimal or remote.[79]
[78] In this regard, the Tribunal understood the applicant’s reference to past conduct was intended as a reference to the applicant’s past criminal conduct. As was noted in El Ghoul and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 397 at [7], an assessment of risk does involve consideration of past conduct “… usually previous criminal offending, as well as conduct after any such offending, which will often involve issues around remorse and rehabilitation for past offending.” Indeed, in Salahuddin v Minister for Immigration and Citizenship [2013] FCA 588 at [46], it is said that “[a]ssessment of the risk and nature of re-offending is routinely based on past behaviour.” This is not to say that past criminal conduct is irrelevant. In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574, it was said that “… proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence”.
[79] A SFIC [52]; R SFIC [31], [34]. See Salahuddin v Minister for Immigration & Citizenship [2013] FCA 588.
The threshold requiring that there be a risk of something is a low one.[80] An evaluative judgment is required in determining whether the threshold is met.[81] While the level of risk may need to be more than minimal or remote, a risk that is low may nevertheless be judged appropriately to be a risk.[82]
[80] BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94 at [324].
[81] Ibid at [325]; Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [2].
[82] BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94 at [337]-[338], where it is said that “…The Minister’s evaluative finding was that there was a low likelihood, found to be more than minimal or remote, of the threatened activity in fact taking place in Australia… That was a very pessimistic approach to take, and could be seen as overly cautious, but the language of s 501(6)(d)(v) is cast in terms that authorised the Minister to be highly protective of the Australian community when it came to granting or refusing a visa when character is in issue.”
The foregoing propositions are consistent with the legislative history of s 501(6)(d). That section was amended in 2014 so as to no longer require that any risk be significant.[83] In the explanatory memorandum to the amending Bill the intention of the amendment was said to be “that the level of risk required …[be] more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.”[84]
[83] See Migration Amendment (Character and General Visa Cancellation) Bill 2014, Schedule 1, cl 11.
[84] Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014, at [46].
While the parties agreed as to the legal approach to be applied in determining whether a relevant risk exists, they differed as to the outcome of applying that approach in the circumstances. In particular, the applicant submitted that the risk of the applicant again engaging in criminal conduct is “no more than remote or minimal.”[85]
[85] A SFIC [53].
That assessment of the risk was said on behalf of the applicant to be based on eight factors.[86]
[86] A SFIC [54].
First, the applicant was said to be genuinely remorseful for his behaviour and to have insight into his offending.
I accept that the applicant has shown remorse and demonstrated some insight. I am not satisfied, however, that his remorse is as whole-hearted or that his insight is as deep as has been contended.
I appreciate that in June 2021 a clinical and forensic psychologist opined that the applicant’s “level of insight into his conduct …[had] deepened substantially. He not only expressed repeatedly his remorse and regret for his past conduct but he was also able to indicate in cogent and coherent terms his appreciation of the harm he had caused…”. The psychologist considered that, relative to others he had seen, the applicant’s insight and level of acceptance of responsibility were of a high order.[87]
[87] RTB, p.689. In a June 2020 report after a 90-minute video consultation, the psychologist referred to the applicant’s good level of insight and heartfelt and apparently genuine remorse: see RTB, p.374.
I also note the applicant’s protestations of remorse[88] and the suggestion that his insight is demonstrated by his adoption (in conjunction with RGCZ) of various ways in which to manage stress.[89] I also note the views of others who consider the applicant to be truly remorseful.[90]
[88] Such as at ATB, p.30 at [6]-[7].
[89] Such as at ATB, p.31 at [13].
[90] See, for example, RGCZ at ATB, p.25; she says the applicant “…has shown a lot of remorse and I believe him when he says that he will never do the same thing again.”
At least initially, there is reason to suspect that the applicant had little remorse and insight. In contending in July 2017 that his bridging visa should not be cancelled, the applicant stated that “About what I did, we are all human beings. There has been some misunderstanding.”[91]
[91] RTB, p.196.
Further, as I see it, a person who does not accept that they engaged in certain conduct is unable to be wholeheartedly remorseful for it. Nor, as I see it, can the person have deep insight into the reasons for having engaged in the conduct. In this regard, in relation to the March 2016 and April 2017 incidents previously described, I am not satisfied that the applicant accepts that he engaged in any particular conduct.
As for the March 2016 incident, the applicant has described his conduct as variously involving slapping RGCZ (something which in May 2016 he is said not to have considered to be family violence), striking her with an open hand, grabbing her or pushing her. Clearly, at least for some time, he did not conceive of his conduct then as involving family violence. In a form he completed in July 2020, when addressing the April 2017 incident, the applicant stated that he had never resorted to violence in the past.[92] Later, he asserted that in the first two years of his marriage to RGCZ he did not commit family violence.[93]
[92] RTB, p.285.
[93] RTB, p.291.
As for the April 2017 incident, he has described his conduct as variously involving pushing RGCZ, his hand landing on RGCZ’s face when grabbing his phone, slapping her with an open hand and hitting her with the back of his hand. This is in a context where RGCZ’s most recent (and relatively moderated) description of what transpired still has the applicant hitting her with a closed fist.
Perfect recall is not demanded of the applicant.[94] What is reasonable to expect, however, is a clear conception of the thing about which genuine remorse and deep insight is said to be had.
[94] Cf: A REPLY [7].
The second and third of the factors said to support the applicant’s assessment of risk pertain to the same thing. As I see them, those factors can be inelegantly described in terms of being “scared straight”. Essentially, it is said that the consequences of him having engaged in the conduct in which he engaged when in Australia have been so severe that he is unlikely to risk suffering a repeat of those consequences by again engaging in such conduct. The underlying proposition is that a person is unlikely to engage in conduct if the person perceives the consequences of so doing to be severely adverse.
I accept that proposition but only insofar as it is assumed that the person concerned acts rationally. The proposition loses validity the more that emotion becomes the driver of conduct. Here, it seems clear that the applicant’s conduct of concern in the past was driven by emotion, in particular, anger. Indeed, insofar as the applicant admitted striking RGCZ, he said he did so out of anger;[95] he acted violently out of anger and frustration.[96] Sessions he had with a psychologist in 2016 involved exploring the importance of him controlling his anger.[97]
[95] RTB, pp.669-670.
[96] RTB, p.285.
[97] RTB, p.530.
To the extent that the applicant’s conduct was again to be emotionally driven, I do not accept that the second and third factors underlying the applicant’s assessment of risk serve to ameliorate the risk of him engaging in criminal conduct.
Moreover, I note that the severe consequences to which reference is made in the applicant’s submission include his having been separated from his children. A consequence of the March 2016 incident was that orders were made requiring that the applicant maintain a substantial degree of separation from his children.[98] Whether or not the applicant observed those orders, he would then have been aware that at least some separation from his children was in prospect should he again engage in conduct of concern. This did not stop him from subsequently engaging in such conduct, as reflected in the April 2017 incident.
[98] For example, for some time the applicant had only limited, supervised access to Mr S1.

The fourth factor said to support the applicant’s assessment of risk concerns steps taken in rehabilitation. In particular, it is said that the applicant and RGCZ “…have both taken significant steps to address the drivers of the behaviour, including seeking professional psychological support and, in the case of …[the applicant] speaking to a counsellor. They have emotionally matured …They are both willing to attend counselling if …[the applicant] is able to return to Australia …”.[99]
[99] A SFIC [54d].
In the circumstances, I do not consider that this fourth factor serves to ameliorate the risk of the applicant again engaging in criminal conduct to any significant extent.
As for emotional maturation, as people age it is reasonable to expect that, as a general rule, their capacity to disagree with those with whom they live without resorting to violence is enhanced. Whether this is the case in relation to the applicant in the context of his relationship with RGCZ is, however, left to speculation. While the material before me is suggestive of the applicant’s relationship with RGCZ having evolved positively,[100] nevertheless, the extent to which this has in fact occurred (as opposed to assertions to the effect that it has occurred) has not been tested in the context which is relevant, i.e., while living together in Australia (a point to which I will return).
[100] See, for example, the applicant’s statement made in June 2021 at RTB, p.671 at [85].
I note that prior to the April 2017 incident the psychologist who saw the applicant in 2016 reported that the applicant had demonstrated “new found maturity and insight.”[101] Clearly, in terms of preventing family violence, whatever had been newly found was insufficient.
[101] RTB, p.530.
It is unclear what significant rehabilitative steps are said to have been taken by the applicant. He did engage with a men’s behavioural change program and did attend some sessions with a psychologist in 2016.[102] These were, however, clearly insufficient to prevent the applicant offending in April 2017.
[102] RTB, p.291. He said he “learnt how to deal with my emotions, how to deal with conflict, respect women, and if l am confronted with any difficult situations, how to manage my feelings, emotions and reactions. Also how to use different strategies to manage my feelings. I also saw a psychologist a few times…” It would appear that, in fact, the applicant attended six sessions with a psychologist who worked with Victorian Arabic Social Services: RTB, p.530.
It does not appear to be contended that the applicant has engaged in any particular rehabilitative steps since moving to Lebanon in 2018. In June 2020, the applicant was said to have stated that he had not engaged in any counselling while in Lebanon due to its cost.[103]
[103] RTB, p.370.
While this did not appear to be the position of the applicant, it might have been contended that there is no need for him to have engaged in any rehabilitative steps. In June 2020, a clinical psychologist opined that the applicant had no ongoing forensic rehabilitative issues.[104] I note that this opinion would appear to be at odds with that of the applicant given his and RGCZ’s expressed intention to engage in counselling on the applicant’s return to Australia.[105]
[104] RTB, p.373.
[105] RTB, p.671, ATB, p.26.
The fifth factor said to support the applicant’s assessment of risk appears to reflect several contentions which are not in issue (and one of which appears to be of particular relevance to the eighth factor discussed later). It is said that there is “no evidence of psychotic functioning” and that the applicant is capable of learning from past conduct and regulating future conduct.
I accept those contentions on the basis that a person may have a capability to do something without that capability being always exercised. How these contentions are said to affect the level of risk in the circumstances, however, is unclear given that it is not put that the applicant was either psychotic or lacked a capability to regulate his conduct at the time of the March 2016 and April 2017 incidents.[106]
[106] In the context of the April 2017 incident, the applicant is said to have told police that he can't control himself when he's angry and that he was out of control: RTB, p.64. The applicant denies, however, ever having made that statement.
The sixth factor said to support the applicant’s assessment of risk is that “a pre-eminent forensic psychologist has twice assessed” the applicant as posing a low risk of re-offending.
The difficulty with this factor is that a low risk of re-offending is not necessarily a remote or minimal risk. Indeed, as previously mentioned, the threshold of risk in the context of the character test is not a high one and can be met where the level of risk is considered to be low.
Moreover, there are some difficulties with the psychologist’s opinion, quite apart from the psychologist suffering from a misunderstanding as to what might be seen to be two matters material to an assessment of risk.[107] The opinion was derived from the results achieved on application of a particular analytical tool, one apparently designed to determine the risk of spousal assault. That tool involved a consideration of 10 factors. One such factor concerned employment. The applicant was described as having no employment problems. As will be seen later, I am not satisfied that this was the case, at least in terms of the applicant’s time in Australia. Another factor concerned mental health. As to this factor, the applicant was said to have normal mental health.[108] I note that the psychologist diagnosed the applicant as suffering from an adjustment disorder and, around a year after his assessment of risk, opined that the applicant’s mental state had deteriorated significantly.[109]
[107] It would seem that the psychologist had wrongly believed that the applicant had undertaken “offence-specific treatment” (RTB, p.374) after the April 2017 incident, which he had not, and that there was only one relevant incident so that he was unaware of the March 2016 incident: TR 8/21, pp. 32, 36 (p.71, 75 of the PDF document of the transcript of Day 1 of the August 2021 Tribunal hearing). Before the Tribunal in August 2021, however, the psychologist was said to have maintained that neither of these matters affected his risk assessment: RTB, pp.774, 775, albeit that the transcript of that hearing suggests that the psychologist did accept that has assessment of risk would be affected were the applicant to have engaged in more than one incident of family violence: Tr 8/21, p.32 (p.71 of the PDF document of the transcript of Day 1 of the August 2021 Tribunal hearing).
[108] RTB, p.372.
[109] RTB, p.684.
The seventh factor said to support the applicant’s assessment of risk relates to the time spent by RGCZ and her children living with the applicant in Lebanon. In that time the relationship is said to have been “peaceful, loving, and cooperative,”[110] despite stressors.
[110] A SFIC [54g].
I accept the factual basis underlying this seventh factor. That is, I accept that applicant spent time living with RGCZ and their children in Lebanon and that their lives together then did not involve the applicant engaging in any violence. I do not accept, however, what the applicant seeks to draw from that factual basis.
As I understand what was put, from the time he has spent with RGCZ and their children successfully living together in Lebanon as a family, it has been established that that they can live together without violence. In closing submissions, it was said that their time together in Lebanon constituted a proof of concept, that they can live happily together.
The concept to be “proved”, however, is not that the applicant can live with RGCZ and their children happily or, indeed, that they can live together without violence. Instead, insofar as any particular concept is of relevance, it is that the applicant can live with RGCZ and their children in Australia without violence. That concept is not proved by the time spent by the family living together in Lebanon without violence.
First, the applicant has lived with RGCZ and their children in Lebanon for only around a year in total.[111] I do not consider that to be a period sufficient to have proved any concept.
[111] Around June 2018 to February 2019, October 2019 to December 2019 and June to August 2022.
Second, as I see it, the circumstances that would attend the family’s life together in Australia differ substantially from those that would have prevailed when they lived together in Lebanon.[112] In Lebanon, the applicant lives with his family, works at his family’s farm[113] and is in a social and cultural context with which he is familiar. This is in stark contrast to the circumstances in which he would find himself were he to return to Australia. He would not have access to the support of his parents and siblings, would not seem to have ready access to any particular employment[114] in a context where it is not apparent that he has any particular employable skills, and would find himself in a social and cultural context markedly different from that in which he spent his formative years and now finds himself.
[112] The circumstances in which offending occurred in the past are of relevance in assessing the risk of recidivism. In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-575, it was said that“…[t]he extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.” Similarly, in Hughes v R [2017] HCA 20 at [154], Nettle J (albeit in dissent) stated at [154] that “… [e]vidence that an accused has committed an offence is not, of itself, significantly probative of the accused having committed another offence …To make evidence of previous offending or misconduct significantly probative of a subsequent offence there needs to be something more about the nature of the offences or the circumstances of the offending in each case, or about the victim of each offence, which rationally affects to some significant degree the assessment of the probability that the accused committed the offence…”. According to Mortimer J in Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [78], Moshinsky J agreeing, “[t]he nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending.”
[113] Noting that the applicant is said to have stated that he enjoyed the relaxed pace of life on the farm: RTB, p.369.
[114] Noting, however, RGCZ’s statement that the applicant might be able to obtain work as a concreter.
This difference in circumstances is material. It suggests that the applicant would, on return to Australia, face a range of significant stressors which he does not face when living in Lebanon. This is not to suggest that he does not face stressors living in Lebanon. It is simply that he would face significantly different stressors in Australia. How he would react to those stressors is not proved or revealed by his conduct in Lebanon.
Speaking of stressors, I accept a contention made on the applicant’s behalf that, in some respects, the stressors he would face on a return to Australia are less than those that confronted him in March 2016 and March 2017 and that this has an ameliorating effect on the risk of him again doing what he then did. I do not consider this effect to be significant, however.
The first stressor to which reference was made in closing submissions was said to concern the applicant’s visa application, with reference being made to RTB, p.667. There, the applicant refers to his worry that he “…would not be allowed to stay in the country. I had not even been invited to lodge a visa application. sometimes I would be given a Bridging E visa by the Department, but sometimes I would not. I was hearing from my friends that their applications were being refused.” I accept that the applicant would, as he said, have had the worry about whether he would be allowed to remain in Australia. I do not accept that at the relevant time the applicant would have been stressed about his bridging visa. That visa was revoked only after and as a consequence of the April 2017 incident.
The second stressor to which reference was made in closing submissions concerned the relationship both the applicant and RGCZ had with RGCZ’s family. I accept that in 2016 and 2017 the relationship was poor and was a source of tension. I also accept that, since then, there has been an improvement in that relationship and a consequent reduction in that tension, given contact in Lebanon between RGCZ’s family and the applicant and his family.[115] While improved, that relationship does not appear to be one that could be described as tension-free. In her evidence before the Tribunal, RGCZ described how she is tired all the time looking after her three children. At the same time, she says she receives no support with the children from her family. This suggests that, unlike the position they found themselves in Lebanon, the applicant and RGCZ would be left alone to raise their three young children, two of whom seem to have behavioural challenges.
[115] RTB, p.683; ATB, p.31.
The eighth factor said to support the applicant’s assessment of risk is reflective of what was said on behalf of the applicant in the context of the fifth such factor. It is that there is evidence before the Tribunal that suggests that he does not have a propensity to act in an abusive or violent manner. That evidence would include the applicant having no history of offending “…in Lebanon prior to the events that are subject of these proceedings, and none since he returned there in July 2018.”[116]
[116] A SFIC [54h].
I accept that the applicant has no such history of offending.[117] I also accept that the absence of such a history is supportive of a conclusion that the applicant does not have a propensity to act in an abusive or violent manner. It is not, however, determinative of such a conclusion. Pointing in the other direction is the applicant’s conduct in the March 2016 and April 2017 incidents. Further, as noted earlier, the applicant’s circumstances in Lebanon differ markedly from those he is likely to find himself in were he to return to Australia.
[117] At RTB, pp.175-176, a Lebanese police record document (and translation) indicates that as at 15 January 2020 the applicant had no criminal record in Lebanon.
Overall, I find there to be a risk of the applicant engaging in criminal conduct in Australia were he allowed to enter or remain in Australia. While, as the applicant submits and the respondent accepts, that risk might be a low one, it is nevertheless a real risk, neither minimal nor remote.
The applicant’s conduct in the March 2016 and April 2017 incidents is suggestive of a propensity to engage in family violence or, at least, a propensity to engage in family violence when living in Australia outside, what is to him, the familiar context in Lebanon. In the ten to twelve months in aggregate that the applicant lived with RGCZ in Australia, he engaged in family violence twice.[118] At least in relation to the April 2017 incident, he did so despite the otherwise protective effects of an intervention order, engagement in counselling and participation in a behavioural change program.
[118] On the material before the Tribunal, it would appear that the applicant and RGCZ lived together from around August 2015 to March 2016, November 2016, and March 2017 to June 2017.
Indeed, the picture is even more stark when regard is had to the fact that both incidents occurred in the limited period when the applicant was living not only with RGCZ but also their child or children in Australia. Mr S1 was born in March 2016. Since then, according to RGCZ, “we had not properly lived together, us and the kids.”[119]
[119] RTB, p.671.
As indicated earlier, while I accept that the applicant has shown remorse and demonstrated some insight, I am not satisfied that his remorse is whole-hearted or that his insight is other than superficial.
Further, while a friend speaks of positive changes to the applicant “since his therapy”[120] and RGCZ’s sister speaks of the applicant’s changed thinking evident from his having actively engaged in counselling,[121] I am not satisfied that the applicant has taken any significant rehabilitative steps since the April 2017 incident.
[120] RTB, p.421.
[121] RTB, p.419.
Moreover, as the applicant noted, a forensic psychologist has twice assessed the applicant as posing a low risk of re-offending, in the context of an assessment which, as I alluded to earlier, may well have underestimated the level of that risk.
Given my finding as to risk, I am not satisfied that the applicant passes the character test.
As I am not satisfied that the applicant passes the character test, the remaining underlying question in issue is whether the Tribunal should refuse to grant the visa for which the applicant applied.
SHOULD THE APPLICANT’S APPLICATION FOR A VISA BE REFUSED?
As is apparent from what was said earlier, I have decided that the grant of the visa for which the applicant applied ought not to be refused in exercise of the discretion conferred by s 501(1) of the Act.
That decision was arrived at in the performance of a function or the exercise of a power of the Tribunal under the Act. As such, the Tribunal was required to comply with any direction given under s 499 of the Act about the performance of such functions or the exercise of such powers.[122]
[122] Act, s 499(2A).
A number of directions have been given under s 499. The direction that applied at the time of the decision the subject of review[123] (“Direction 90”) differs from the one which currently applies (“Direction 99”[124]).
[123] The direction applicable at the time of the decision the subject of review, Direction 90, was revoked with effect from 3 March 2023: see Direction 99.
[124] Direction 99 being an instrument made on 23 January 2023, which commenced on 3 March 2023 and entitled “Direction No 99 — Migration Act 1958 — Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA”.
As I see it and consistently with the submissions of the parties, Direction 99 is the direction with which the Tribunal is bound to comply in this proceeding.
It might have been contended that, in the circumstances, a requirement to comply with Direction 90 is inherent in the role of the Tribunal. The Tribunal reviews certain decisions and, in so doing, performs the same function and exercises the same power as the relevant decision-maker. Its role requires that it stand in the decision-maker’s shoes in order to “do over again” that which was done by the decision-maker,[125] performing the same function, exercising the same power,[126] being subjected to the same constraints and addressing the same question or questions[127] as the decision-maker.
[125] Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [50], quoting with evident approval two earlier decisions, Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51] and Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 315 [40]-[100].
[126] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ZRTY [2022] FCA 1529 per Katzmann J at [34] citing Esber v Commonwealth of Australia (1992) 174 CLR 430 at 440. Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [14]-[15]. Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [50], where it is said that the “…merits review function of the AAT is “to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review”. The function of the AAT, in other words, is “to do over again” that which was done by the primary decision-maker.”
[127] Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [51], where it is said that the “…AAT exercises the same power or powers as the primary decision-maker, subject to the same constraints. The primary decision, and the statutory question it answers, marks the boundaries of the AAT’s review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision”.

In undertaking that role, the Tribunal is “…not at large. It is subject to the same general constraints as the original decision-maker and should ordinarily approach its task as though it were performing the relevant function of the original decision-maker in accordance with the law as it applied to the decision-maker at the time of the original decision.” [128]
[128] Frugtniet v Australian Securities and Investments Commission [2019) 266 CLR 250 at [14] per Kiefel CJ, Keane and Nettle JJ.
Hence, as a general rule, the nature of its role on review[129] dictates that the legal context to be applied by the Tribunal is that which confronted the relevant decision-maker.[130] Hence, for example, a consideration which the person who made a decision the subject of Tribunal review was required to take into account must also be taken into account by the Tribunal and a consideration which could not have been taken into account by that person cannot be taken into account by the Tribunal.[131]
[129] The general requirement to apply a particular context arises out of the Tribunal’s role and not because of any interpretative rule operating to preserve rights that might have accrued under a repealed legislative instrument: cf Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 at [5].
[130] See also Shi v Migration Agents Registration Authority (2008) 235 CLR 286 per Kiefel J (as Her Honour then was) at [134]: “…in reaching a decision on review of a decision of the original decision-maker, the Tribunal should consider itself as though it were performing the function of that administrator in accordance with the law as it applied to that person.”
[131] Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [51] per Bell, Gageler, Gordon and Edelman JJ “… A consideration which the primary decision-maker must take into account in the exercise of statutory power to make the decision under review must be taken into account by the AAT. Conversely, a consideration which the primary decision-maker must not take into account must not be taken into account by the AAT.”
In its review of any particular decision, however, the role of the Tribunal is subject to alteration by statute. Hence, in the circumstances considered by the Full Federal Court in GWRV,[132] it was said that cases such as Shi and Frugtniet “…do not support the proposition that the Tribunal must ask itself the same questions that the primary-decision maker did ask itself in circumstances where the Tribunal’s jurisdiction has been limited, if not expressly, then by necessary implication…”.[133] In particular, Shi was said to say “…nothing about the authority of the legislature to confer a right of review, whether at large or on terms, to the Tribunal.”[134] As for Frugtniet, the Court noted that the High Court had there expressly stated that the Tribunal’s role of standing in the shoes of the relevant decision-maker applied “…except where altered by some other statute…”.[135]
[132] GWRV v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 39 (“GWRV”). See also Frugtniet v Australian Securities and Investments Commission [2023] FCAFC 14 at [57], where the general position as to the law to be applied by the Tribunal on review was, in the context of the matter before the Court, considered to have been altered by statute, in particular, certain transitional provisions.
[133] GWRV at [50].
[134] GWRV at [52].
[135] GWRV at [54].
Accordingly, absent any statutory alteration to the Tribunal’s usual role, the Tribunal would be required to comply with Direction 90 if it comprised part of the law which applied to the delegate who made the visa refusal decision.
I do not need to decide whether Direction 90 did comprise part of that law. While it is arguable that it did,[136] as I see it, when the Tribunal is exercising powers and functions under the Act, that aspect of the usual role of the Tribunal which requires application by the Tribunal of the legal context which applied to the relevant decision-maker has been relevantly altered.
[136] The nature of a direction under s 499 is unclear. In Trout v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 583 at [83]-[84], Feutrill J recently concluded that a direction was an administrative policy and not part of the legal framework. At [86], His Honour stated that although “…the delegate was bound to comply with Direction 79 at the time of the delegate’s decision and a failure to take into account a mandatory relevant consideration of Direction 79 would have deprived the delegate’s decision of legal effect, it was not a legal constraint on the exercise (or not) of power under s 501CA(4). It was a statement of executive policy regarding the exercise (or not) of that power at that time, but it had no bearing on the rights of the applicant under s 501CA(4).” In Meyrick v Minister for Home Affairs [2020] FCA 677 at [74], it was said that there are difficulties in determining whether such a direction is administrative or legislative in character. In Minister for Immigration and Citizenship v Anochie [2012] FCA 1440 at [26]-[31], it was suggested that a s 499 direction was a species of delegated legislation. In Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [54], however, it was said that a s 499 direction is not a legislative instrument but, rather, a statement of policy which does not alter the scope or content of a decision-maker’s power. These decisions were discussed in MQGT v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 291 at [16]-[17], where it was suggested that much was to be said for the view taken in Uelese. Arguably, however, a direction under s 499 is more than a statement of policy. The expression of policy is an administrative act. Such an act cannot give rise to mandatory relevant considerations. Such considerations can only be imposed by Australia’s domestic law: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [20]-[29]; CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 at [490]. A direction under s 499 has been found to give rise to mandatory relevant considerations. It has been said to identify, non-exhaustively, “…matters that a decision-maker must consider…”: Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104 at [45], citing Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [16]. See also BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99 at [22], where it is said that such a direction imposes mandatory and aspirational considerations. A s 499 direction identifies mandatory relevant considerations such that a failure to comply with such a direction may constitute jurisdictional error: BLBY v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 128 [19]. Such a direction imposes requirements that are a precondition for the making of a valid decision: PQSM v Minister for Home Affairs [2019] FCA 1540 at [22]. In Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 at [29], it was said in relation to a direction that if it “…required a particular matter to be taken into account as a mandatory relevant consideration in reaching the required state of satisfaction and such a matter was advanced by an applicant but ignored by the delegate or Tribunal, then jurisdictional error would be demonstrated…”. In Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 46 at [23], it was said that s 499 directions “…must be taken into account, and they must be accurately understood...”. In Minister for Immigration v HSRN [2023] FCAFC 68 at [39], a s 499 direction was said to prescribe “…to a significant extent, how the relevant discretion is to be exercised”. On the other hand, policy does not appear to require anything of the Tribunal. In MDXJ v Secretary, Department of Social Services [2020] FCA 1767 it was said (at [17]) that the “…part which a governmental policy should ordinarily play in the determinations of the Tribunal is a matter for the Tribunal to determine, in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions, but balanced against the ideal of justice in the individual case … Further, it is well-established that the Tribunal … is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.”
That alteration is effected by the empowering statute and, in particular, by s 499 of the Act.
The s 499 requirement to comply with a direction made under that section is one imposed on the Tribunal directly, not as a result of the Tribunal having stepped into the shoes of a decision-maker.[137] Rather than being about the performance of functions and powers of a decision-maker to whose position the Tribunal has, in a sense, been subrogated, a s 499 direction is, as applied to the Tribunal, about the performance of its functions and powers under the Act. When exercising such functions and powers, it is necessarily implicit that the personal obligation of the Tribunal to comply with a s 499 direction only attaches to a direction extant at the time of that exercise. At the time of the Tribunal’s exercise of its functions and powers under the Act in the context of this proceeding, the only relevant extant direction is Direction 99.
[137] Act, s 449(2A).
As there has been a failure to pass the Act’s character test, the s 501(1) discretion to refuse to grant the visa for which the applicant applied is enlivened. In deciding whether to exercise that discretion, compliance with Direction 99 requires that the Tribunal consider “the specific circumstances of the case”.[138] That consideration is to be undertaken informed by,[139] and in the context of a framework comprised of,[140] certain principles.
[138] Direction 99, cl 5.1(2).
[139] Direction 99, cl 6.
[140] Direction 99, cl 5.2.
Those principles are set out in cl 5.2 of Direction 99. They are as follows:
“5.2 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other 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 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.”
I turn now to the considerations which (to the extent that they are relevant) I am required by Direction 99 to take into account in deciding whether to revoke the visa cancellation decision.[141] I do note, however, that the direction is not “…an exhaustive universe; it refers to matters that a decision-maker must consider but does not confine what may be taken into account…”.[142]
[141] Direction 99, cl 6.
[142] Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104 at [45], citing Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [16]. See also BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99 at [23] as to the position under Direction 90.
CONSIDERATIONS – OVERVIEW
The relevant considerations are those set out in clauses 8 and 9 of Direction 99. They are divided into primary considerations and other considerations.
The primary considerations are protection of the Australian community from criminal or other serious conduct; whether the conduct engaged in constituted family violence; the strength, nature and duration of ties to Australia; the best interests of minor children in Australia; and expectations of the Australian community.[143]
[143] Direction 99, cl 8.
The other considerations include (but are not limited to) legal consequences of the decision; extent of impediments if removed; impact on victims; and impact on Australian business interests.[144]
[144] Direction 99, cl 9(1).
The primary considerations are generally to be given greater weight than the other considerations[145] and one or more primary considerations may outweigh other primary considerations.[146]
[145] Direction 99, cl 7(2).
[146] Direction 99, cl 7(3).
While primary considerations should generally be afforded greater weight than the other considerations, I am not precluded, in the context of any particular matter, from giving equal or greater weight to any consideration. As such, in an appropriate case, other considerations may, for instance, be given more weight than primary considerations.[147] However, for an “other consideration” to be afforded more weight than a primary consideration “…there must be some identified reason, in the particular circumstances, as to why it is appropriate for the particular ‘other consideration’ to be given greater weight than one or more of the three primary considerations”.[148]
[147] Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303 at [32].
[148] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [11].
In taking considerations into account, “appropriate weight” is to be given to information and evidence from independent and authoritative sources.[149]
PROTECTION OF THE AUSTRALIAN COMMUNITY[150]
[149] Direction 99, cl 7(1).
[150] Direction 99, cl 8.1.
I turn now to the first of the primary considerations to be taken into account, the protection of the Australian community from criminal or other serious conduct. This consideration is one that requires the Tribunal to keep in mind the Australian Government’s commitment to the protection of the Australian community from harm as a result of such conduct by non-citizens, with particular regard being required to be had to the first of the framework principles previously identified (i.e. the principle about how there is a particular expectation engendered when conferring on non-citizens the privilege of entering and remaining in Australia).[151]
[151] Direction 99, cl 8.1(1).
Taking this primary consideration into account requires that regard be had to two subsidiary considerations. They are the nature and seriousness of the applicant’s conduct to date and the risk to the Australian community should he commit further offences or engage in other serious conduct.[152]
Nature and seriousness of conduct[153]
[152] Direction 99, cl 8.1(2).
[153] Direction 99, cl 8.1.1.
As for the nature of the applicant’s conduct to date, it is identified in the earlier outline of the March 2016 and April 2017 incidents. It involved violence against his wife, RGCZ, after she had recently given birth and at a time when his child (in the case of the March 2016 incident) or his children (in the case of the April 2017 incident) were at home.
As for the seriousness of the applicant’s conduct to date, in light of the factors to which I am required by Direction 99 to have regard in considering that matter, I find his conduct to have been very serious. I address those factors now.
Without limiting the range of conduct that may be considered very serious, viewed very seriously by the Australian Government and the Australian community are violent and/or sexual crimes, crimes of a violent nature against women or children and acts of family violence[154]
[154] Direction 99, cl 8.1.1(1)(a).
Consistent with a consideration of this factor, the applicant’s conduct in the context of the March 2016 and April 2017 incidents was very serious. The April 2017 incident involved violent crime and crime of a violent nature against a woman. That incident and the March 2016 incident also involved family violence.
Without limiting the range of conduct that may be considered serious, the Australian government and the Australian community consider to be serious certain crimes and conduct[155]
[155] Direction 99, cl 8.1.1(1)(b).
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
With the exception of certain crimes and conduct (such as crimes of a violent nature against women and acts of family violence), the sentence imposed by the courts for a crime or crimes[156]
[156] Direction 99, cl 8.1.1(1)(c).
The conduct and offending of the applicant of particular concern fall withing the exception to this factor. As such, I do not consider it to be of relevance in this proceeding.
The frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness[157]
[157] Direction 90, cl 8.1.1(1)(d).
In a general sense the applicant’s offending was not frequent. Indeed, apart from traffic offences, his convictions relate only to one incident.
Of concern, however, is a matter mentioned earlier. In a limited, aggregate, period of only ten to twelve months when he lived with RGCZ in Australia, the applicant engaged in family violence twice.
The cumulative effect of repeated offending[158]
[158] Direction 99, cl 8.1.1(1)(e).
Insofar as offending is a reference to criminal convictions, in this matter there can be no cumulative effect.
Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending[159]
[159] Direction 99, cl 8.1.1(1)(f).
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour)[160]
[160] Direction 99, cl 8.1.1(1)(g).

There is nothing in the material before me suggestive of anyone other than RGCZ and the applicant fulfilling a parental role in relation to any relevant child.
Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child)[235]
[235] Direction 99, cl 8.4(4)(f).
As noted earlier, the children are young. Nevertheless, as recognised by the respondent, it seems clear that they “want the applicant in their lives.”[236]
Evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally[237]
[236] R SFIC [70].
[237] Direction 99, cl 8.4(4)(g).
The respondent contends that Mr S1 and Ms D1 were exposed to the applicant’s family violence.[238]
[238] R SFIC [71].
When the March 2016 incident and April 2017 incident took place at the applicant’s home, Mr S1 was present. Ms D1 was present at the latter incident. Both were very young at the time and the respondent does not contend that there has been “an observable and direct effect” on either of them.
Nevertheless, on the basis that there remains a risk of the applicant again engaging in family violence and of thereby exposing his children to family violence, the respondent submitted that the weight to be attributed to the consideration concerning the children’s interests ought to be moderated.
As outlined earlier, there is, as I see it, a risk that the applicant will again engage in family violence should he return to Australia. As the respondent submits, this means that there is also a risk of his children being exposed to family violence should he return to Australia.
I do not, however, find that this risk has any material impact on the weight attributable to the consideration concerning the children’s interests.
An assessment of how a child’s interests would be affected by a decision is a hypothetical one. Generally, that hypothetical assessment is of the likely impact of the decision. That assessment is not made by reference to all circumstances that might arise irrespective of their likelihood. Here, the risk identified by the respondent concerns a particular circumstance (being exposure of a child to family violence) which is unlikely to arise given that the risk of the applicant again engaging in family violence is low.
Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct[239]
[239] Direction 99, cl 8.4(4)(h).
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding. Indeed, as just mentioned, the respondent does not contend that the applicant’s family violence has had “an observable and direct effect” on any relevant child.[240]
[240] R SFIC [71].
Conclusion
In my determination, a decision under s 501 to refuse to grant the applicant’s visa application would not be in the best interests of any of the relevant children; Mr S1, Ms D1 and Mr S2. Hence, the consideration concerning their best interests weighs in favour of a decision not to so refuse to grant that application.
The weight I attribute to this consideration is significant. I do so primarily because the applicant’s return to Australia would likely result in him providing material assistance in the care of, and provision of support to, Mr S1, in particular, but also Mr S2, care and support of particular importance in their case given the medical conditions from which they suffer but which, as effectively a single parent, RGCZ is understandably struggling to provide.
The direct effect of a decision under s 501 to refuse to grant the applicant’s visa application would be to deprive each of Mr S1 and Mr S2 of the benefits of that assistance. Indirectly, it would operate to deprive Ms D1 of the benefits of the ameliorating effect on her brothers’ difficult behaviour likely to result from that assistance.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY[241]
[241] Direction 99, cl 8.5.
The expectations of the Australian community consideration constitutes the fifth and last of the primary considerations.
The enquiry which this consideration engenders does not concern what the Australian community expects in fact but, rather, concerns what the Government deems the community’s expectations to be. Decision makers, including the Tribunal, are required to proceed on the basis of the Government’s views as to those expectations, as expressed in the relevant provisions of Direction 99 and without independently assessing community expectations.[242] The content of any such deemed expectation is, accordingly, to be discerned by construing the relevant provisions of Direction 99.[243]
[242] Direction 99, cl 8.5(4).
[243] FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [68]. See also Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68 at [24]; [33].
A construction of cl 8.5 of Direction 99 gives rise to at least two potentially relevant community expectations.
The first is derived from cl 8.5(2) of Direction 99. It provides that:
“In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
…
(c)commission of serious crimes against women…; in this context, ‘serious crimes’ include crimes of a violent…nature…”
Hence, and for instance, the exercise of a discretion to refuse to grant the applicant a visa would be expected where serious character concerns have been raised through acts of family violence or crimes of violence against women. That is the case here. There is no definition in Direction 99 of what constitutes a serious character concern. Given this, it would appear to be a concept tied to the character test found in s 501 of the Act. The applicant has failed that test only through the family violence in which he has engaged in the past. He would not have been considered a risk of engaging in criminal conduct in Australia were he allowed to enter or remain in Australia if he had not engaged in that violence.
Another Australian community expectation reflected in cl 8.5 of Direction 99 is similar to that found in cl 8.5(2). In particular, in cl 8.5(1), it is said that the Australian community expects non-citizens to obey Australian laws while in Australia and that, where a non-citizen has engaged in serious conduct in breach of this expectation or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow them to enter or remain in Australia.
In breach of the expectation that he, as a non-citizen, obey Australian laws, the applicant’s offending saw him engage in what constitutes serious conduct for the purposes of Direction 99.[244] Indeed, the Australian community is taken to view conduct of the type in which the applicant engaged as not only serious but very serious.[245] Hence, as a “norm”, the Australian community is taken to expect that the applicant not be allowed to remain in Australia. Whether that expectation applies in the circumstances, therefore, depends on whether the “norm” is displaced.
[244] Noting that the concept of “serious conduct” is simply defined in Direction 99 inclusively so as to include certain non-criminal conduct: cl 4(2).
[245] Noting that crimes of violence are said to be regarded as very serious by the Australian Government and the Australian community: Direction 99, cl 8.1.1(1)(a).
I do not consider the “norm” to be displaced in the circumstances. For it to have been displaced, much would be required to distinguish the applicant’s circumstances from those which might reasonably be expected to be encompassed within the “norm”. While everyone’s circumstances are to an extent unique, I am not satisfied that the applicant’s circumstances are such as to warrant a conclusion that the community’s normal expectation is inapplicable to him.
In the result, the Australian community is to be taken to expect that the applicant not be allowed to enter into or remain in Australia. Revoking the visa cancellation decision and thereby releasing the applicant into the community would be inconsistent with the expectation.
Hence, the expectations of the Australian community consideration weighs in favour of an exercise of the discretion to refuse to grant the applicant a visa, as it almost inevitably always will.[246] The weight to be attributed to the consideration, however, depends on what is appropriate in “the particular circumstances”.[247] (In this regard, I reject the applicant’s submission that the expectations of the Australian community is of little utility because the deeming provisions of Direction 99 mean that the circumstances of the particular case cannot be considered.[248])
[246] Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68 at [33].
[247] FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [101]-[102].
[248] A SFIC [80].
Circumstances suggestive of attributing significant weight to this consideration include the seriousness of the applicant’s offending, that he was not in Australia from a very young age, that he commenced offending relatively shortly after his arrival in Australia (i.e., around two years after his arrival) and that he does not appear to have made positive contributions to the Australian community of any significance.
On the other hand, circumstances suggestive of attributing less weight to this consideration include the low risk of him again engaging in the conduct of concern, that his wife and children reside in Australia and that the interests of his children (two of whom suffer from conditions that necessitate the provision of significant support) would be served by his return to Australia.
Conclusion
The consideration concerning the expectations of the Australian community weighs in favour of an exercise of the discretion to refuse to grant the applicant a visa.
In the particular the circumstances of this matter, I attribute moderate weight to this consideration.
OTHER CONSIDERATIONS[249]
[249] Direction 99, cl 9.
The considerations which I am required by Direction 99 to take into account are, as mentioned earlier, divided into primary and other considerations.
The other considerations are defined to include but not be limited to a consideration of legal consequences of the decision; extent of impediments if removed; impact on victims; and impact on Australian business interests.[250]
[250] Direction 99, cl 9(1).
Legal consequences of decision
Clause 9.1(1) of Direction 99 requires decision-makers to be:
“…mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.”
The applicant is not in Australia and has not been in in Australia since June 2018. Hence, issues pertaining to his removal from Australia and his being placed in detention pending removal are not relevant. I do note, however, that a decision to refuse to grant the applicant a visa under s 501 would be taken to be:
(a)a refusal to grant any other visa for which the applicant has a subsisting application (not being a protection visa or a visa prescribed for the purposes of s 501F(2) of the Act)
(b)a decision to cancel any other visa held by the applicant (not being a protection visa or a visa prescribed for the purposes of s 501F(3) of the Act).[251]
[251] Act, s 501F.
Conclusion
I have had regard to the legal consequences of a decision in this proceeding, whether it be to refuse to grant the visa for which the applicant applied under s 501 of the Act or not to so refuse to grant him that visa. Those consequences have, to an extent, informed the approach of the Tribunal in relation to certain of the other considerations to which the Tribunal is required by Direction 99 to have regard. In seeking to come to the correct or preferable decision in this proceeding, however, those consequences of themselves weigh neither in favour of nor against any particular decision. Simply, they are what they are.
EXTENT OF IMPEDIMENTS IF REMOVED[252]
[252] Direction 99, cl 9.2.
If relevant, Direction 99 requires that consideration be given to the extent of any impediments that the applicant may face if removed from Australia to Lebanon, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of Lebanon), taking into account his age and health, whether there are substantial language or cultural barriers and any social, medical and/or economic support available to him in Lebanon.
The applicant submits that this consideration weighs in his favour because his situation in Lebanon is difficult.[253] On the other hand, the respondent’s submission appears to be that, while “plausibly relevant”, the consideration is, in fact, not relevant as it is not directed to whether the applicant would be better off in Australia.[254]
[253] A SFIC [79].
[254] R SFIC [80]-[82].
As I see it, the consideration is irrelevant. As noted by the respondent, the applicant “…is not being removed to Lebanon as a consequence of this decision.”[255]
[255] R SFIC [81].
Direction 99 concerns itself with considerations of potential relevance in making a decision. The consideration concerned with impediments is directed to issues that may arise if the decision in question is likely to result in removal from Australia. It requires that regard be had to certain consequences should the decision in issue give rise to the prospect of removal. That is not in prospect in this case. Here, the decision to refuse to grant a visa under s 501 or a decision not to so refuse the grant of a visa will not result in the applicant’s removal from Australia. As just mentioned, the applicant has been in Lebanon for more than five years since leaving Australia in June 2018.
IMPACT ON VICTIMS[256]
[256] Direction 99, cl 9.3.
If relevant in the circumstances, Direction 99 requires that consideration be given to the impact of the s 501 decision on members of the Australian community, including victims of his criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the applicant has been afforded procedural fairness.
RGCZ is a victim of the applicant’s criminal behaviour. Hence, her children are family members of a victim of such behaviour.
Accordingly, consideration needs to be given to the impact on them of “the section 501 …decision.” That is a reference to a decision under s 501 to refuse to grant the applicant a visa as well as a decision not to so refuse the grant of a visa to the applicant. [257]
[257] Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116 at [133]-[137].
The impact on both RGCZ and on her children of each such decision is discussed elsewhere in these reasons and is not limited to impacts in their individual capacity as a victim.[258] In recognition that the various considerations in Direction 99 overlap, to an extent, I simply refer to and repeat that discussion in the context of this consideration. While it might be that a matter of relevance to multiple considerations “is not usually required to take the matter into account repetitiously”,[259] nevertheless, “matters to be taken into account in assessing mandatory and other considerations ‘may well overlap’, and it would be neither desirable nor permissible to exclude consideration of relevant material on the basis that it was more directly relevant to another consideration.”[260]
[258] Ibid at [143] but cf Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 at [27].
[259] Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 at [26].
[260] See Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870 at [23], discussing XSLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1138 at [122]–[123] with evident approval.
As is evident from my earlier discussion of the impact on both RGCZ and on her children of a s 501 decision, I have found it likely that they would all be adversely affected by a visa refusal decision but positively impacted by a decision not to refuse the grant of a visa. This suggests that this consideration weighs in favour of a decision to not exercise the discretion under s 501 to refuse to grant the applicant a visa. That suggestion is reinforced when regard is had to the fact that the applicant’s primary victim, RGCZ, has forgiven him,[261] considers him not to be a threat to her or the children[262] and feels safe with him.[263]
[261] RTB, p.390.
[262] RTB, p.683; ATB, p.25.
[263] ATB, p.26.
Conclusion
I find that the impact on victims consideration weighs in favour of a decision to not exercise the discretion under s 501 to refuse to grant the applicant a visa and does so to a significant extent.
IMPACT ON AUSTRALIAN BUSINESS INTERESTS
If relevant in the circumstances, Direction 99 requires that consideration be given to any impact on Australian business interests if the applicant is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under s 501 of the Act would significantly compromise the delivery of a major project or important service in Australia.[264]
[264] Direction 99, cl 9.4(1).
Neither party has submitted and nor does the material before me suggest that this consideration is of relevance in the circumstances.
CONCLUSION AS TO WHETHER TO EXERCISE DISCRETION AND REFUSE GRANT OF VISA
In considering whether or not to exercise the discretion found in s 501 to refuse to grant the applicant a visa, my conclusions in relation to the various considerations to which I have had regard do not point in a uniform direction.
Both parties agree that two of the primary considerations weigh in favour of a decision not to exercise the visa refusal discretion under s 501 while three of the primary considerations weigh in favour of a decision to exercise that discretion.[265] Where the parties disagree is as to the weight to be attributed to the various considerations.
[265] A SFIC [80]; R SFIC [86].
Weighing in favour of a decision to refuse to grant a visa are the primary considerations concerning protection of the Australian community from criminal or other serious conduct, family violence and expectations of the Australian community, each to a moderate extent.
Weighing against a decision to refuse to grant the applicant a visa are the primary considerations as to the best interests of minor children in Australia (to a significant extent) and the strength, nature and duration of the applicant’s ties to Australia (to a moderate extent).
As just outlined, of the primary considerations, only the best interests of minor children in Australia consideration has been attributed significant weight. Were the applicant allowed to enter and remain in Australia, he would assist in meeting the special needs of two of his children, assistance of which the children’s current sole carer, RGCZ, is clearly in need.

Moreover, while not a primary consideration, I have attributed significant weight to the impact on victims consideration. It is in the interests of the primary victim of the applicant’s offending and family violence, RGCZ, and in the interests of her children that the applicant be able to enter and remain in Australia.
In these circumstances, and especially where there is a low risk of the applicant re-offending, it is neither correct nor preferable that the discretion under s 501(1) of the Act to refuse to grant the applicant a visa be exercised.
DECISION
As stated at the beginning of these reasons, in this proceeding, the task for the Tribunal is to decide whether it is satisfied that the applicant passes the relevant character test and, if not so satisfied, whether it should exercise its discretion under s 501 of the Act to refuse to grant the visa for which the applicant applied.
I am not satisfied that the applicant passes the character test.
Further, the discretion under s 501 of the Act to refuse to grant the visa for which the applicant applied should not be exercised.
Accordingly, the decision under review is set aside and, in substitution, the Tribunal decides not to refuse to grant the applicant a visa under s 501 of the Act.

I certify that the preceding 269 (two hundred and sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell

...........................[SGD].............................................
Associate
Dated: 28 August 2023

Date of hearing: 20 June 2023

Counsel for the Applicant: Siobhan Kelly

Solicitors for the Applicant: Clothier Anderson Immigration Lawyers

Counsel for the Respondent: Jonathan Barrington

Solicitors for the Respondent: Mills Oakley Lawyers

Date of hearing:	20 June 2023
Counsel for the Applicant:	Siobhan Kelly
Solicitors for the Applicant:	Clothier Anderson Immigration Lawyers
Counsel for the Respondent:	Jonathan Barrington
Solicitors for the Respondent:	Mills Oakley Lawyers