Savaiinaea and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 3510

Savaiinaea and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3510 (10 September 2020)
Division:GENERAL DIVISION
File Number(s):2020/3762
Re:Mr Eric Savaiinaea
APPLICANT

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

Tribunal:Senior Member B. Pola
Date:10 September 2020
Place:Brisbane

DECISION
Pursuant to s43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 17 June 2020 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
.............................[SGD]...........................................
Senior Member B.Pola
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs[2019] FCA 500
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Kohli and Minister for Immigration and Border Protection [2017] AATA 1326
Lee and Minister for Home Affairs (Migration) [2019] AATA 871
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155
Stone and Minister for Immigration and Ethnic Affairs [1981] AATA 91
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member B. Pola
10 September 2020
INTRODUCTION AND BACKGROUND

Mr Eric Savaiinaea (the ‘Applicant’) is a 35 year old citizen of New Zealand. Movement records indicate the Applicant was first granted a Class TY Subclass 444 Special Category (Temporary) visa (referred to as ‘Visa’ herein in these reasons) on arrival into Australia on 16 October 2005, at 20 years of age[1].
[1] Exhibit G1, G24, page 173.
The Applicant has a criminal history in Australia, with reference to six convictions recorded before the Beenleigh District Court on 18 April 2019, regarding an incident which occurred on 4 November 2017, with each of these convictions carrying a sentence of imprisonment[2]. Prior to this incident, records before the Tribunal indicate that the Applicant had no previous criminal convictions.
[2] Exhibit G1, G16, pages 85 and 86.
Significantly, the offences of the Applicant on 4 November 2017 include one count of “enter dwelling with intent by break at night uses/threatens violence – domestic violence offence”; two counts of “serious assault police officer whilst pretending/is armed with a weapon”; two counts of “common assault”, and one count of “common assault - domestic violence offence” [3]. Additionally, the Applicant was immediately disqualified from driving due to having exceeded the blood alcohol limit, from driving whilst intoxicated[4].
[3] Ibid.
[4] Exhibit R2, TB2, page 32.
While serving a term of imprisonment, a delegate of the Minister (or ‘Respondent’), pursuant to s501(3A) of the Migration Act 1959 (Cth) (herein referred to as the ‘Migration Act’), decided on 6 June 2019 to mandatorily cancel the Applicant’s Visa (or the ‘Visa Cancellation Decision’) on the basis that he did not pass the character test pursuant to s501(6) of the Migration Act [5].
[5] Exhibit G1, G3, pages 10 to 29.
Following the Visa Cancellation Decision, the Applicant made submissions to the Respondent[6].
[6] Exhibit G1, G19 to G23, pages 95 to 172.
On 17 June 2020, the Respondent decided not to revoke the cancellation of the Applicant’s Visa pursuant to s501CA(4) of the Migration Act[7]. The Applicant was notified of the Respondent’s decision, on 18 June 2020[8].
[7] Exhibit G1, G15, page 70.
[8] Exhibit G1, G15, pages 67 to 69.
The Applicant lodged an application with the Administrative Appeals Tribunal (herein referred to as the ‘Tribunal’) on 24 June 2020 seeking a review of the abovementioned decision not to revoke the cancellation of his Visa, within the required time frame[9].
[9] Exhibit G1, G1, pages 1 to 2; and Exhibit G1, G2, pages 3 to 9. For the Tribunal to have jurisdiction to review the decision, the Applicant must have lodged the application for review with the Tribunal within nine days after the day on which he or she received notification of the decision, refer to s500(6B) of the Migration Act.
The Tribunal has jurisdiction to review this application pursuant to s500(1)(ba) of the Migration Act.
The application was heard in Brisbane over two days, being 24 August 2020 and 25 August 2020. The Applicant was represented by Ms Jennifer Samuta of Samuta McComber Lawyers, both appeared before the Tribunal via video link. The Respondent was represented by Mr Matthew Hawker of Sparke Helmore Lawyers, who also appeared by video link. The Tribunal heard oral submissions by and on behalf of the Applicant as well as the Respondent, in addition to submitted evidence as outlined in the Exhibit Register in Annexure 1 of these reasons.
On the morning of the second day of the hearing, after the Tribunal had finished hearing evidence from the Applicant on the previous day, the Applicant requested through his representation access to a Samoan interpreter. The Tribunal provided this assistance to the Applicant on the second day, and sought assurances from the Applicant and his representation that they were satisfied with the Applicant’s comprehension of the questions asked of him on the previous day of the hearing, and that he had also understood the evidence he had given. These assurances were given by both the Applicant and his representation, with the Applicant explaining that they had wanted to further elaborate on their previous evidence[10]. The Tribunal allowed this, and recalled the Applicant as a witness on the second day for re-examination and cross-examination.
[10] Transcript, 25 August 2020, page 79, lines 1 to 25.
ISSUES
Legislation regarding the revocation of the mandatory cancellation of visas is found in s501CA(4) of the Migration Act, which provides:
“(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.”
As previously outlined in these reasons, the Applicant made representations to the Respondent as required by s501CA(4)(a) of the Migration Act[11]. The issue before the Tribunal is whether the discretion to revoke the mandatory cancellation of the Applicant’s Visa may be exercised.
[11] Exhibit G1, G19 to G23, pages 95 to 172.
The Tribunal refers to the Full Court of the Federal Court of Australia’s observations in the Minister for Home Affairs v Buadromo, where the following was stated[12]:
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[13].
[12] [2018] FCAFC 151.
[13] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
Therefore, there are two issues for consideration before the Tribunal which must be decided:
(i)whether the Applicant passes the character test; and
(ii)whether there is another reason why the decision to cancel the Applicant’s Visa should be revoked.
If the Applicant were to succeed on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s Visa must be revoked[14].
[14] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As previously outlined in these reasons, the character test is defined in s501(6) of the Migration Act. A person will not pass the character test if they have a “substantial criminal record” as per s501(6)(a) of the Migration Act. Relevantly, s501(7)(c) of the Migration Act provides that a person is considered to have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant in his submissions conceded that he did not pass the character test pursuant to s501(6) of the Migration Act[15]:
“4. The Applicant concedes that, as at the date of the Original Decision, he:
(a) had a substantial criminal record as defined through s 501(7)(c);
(b) did not pass the character test as prescribed by s 501(6)(a);
(c) was serving a sentence of imprisonment, on a full-time basis, in a custodial institution, for an offence against a law of the state of Queensland.”
[15] Exhibit A1, page 2, paragraph 4.
The Tribunal is satisfied that the Applicant does not pass the character test as a result of having been sentenced to a term of imprisonment for three and a half years after being convicted for six offences, including one count of “enter dwelling with intent by break at night uses/threatens violence – domestic violence offence”; two counts of “serious assault police officer whilst pretending/is armed with a weapon”; two counts of “common assault”, and one count of “common assault - domestic violence offence”[16].
[16] Exhibit G1, G16, pages 85 and 86.
The Tribunal is of the view that the Applicant is therefore unable to rely on s501CA(4)(b)(i) of the Migration Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in accordance with s501CA(4)(b)(ii) of the Migration Act, the Tribunal is bound by s499 of the Migration Act, to comply with any directions made under the Migration Act.
In light of this, Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (herein referred to as the “Direction”) must be applied[17]. The Direction provides guidance for decision-makers on how to exercise discretion in accordance with s501CA of the Migration Act. Relevantly, it states that:
“(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked”[18].
[17] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[18] The Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides that the three Primary Considerations the Tribunal must consider are:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia; and
c)Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a
non-exhaustive list in paragraph 14 of the Direction. These considerations are:
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims; and
e)Extent of impediments if removed.
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
The Tribunal will now turn to addressing the three Primary Considerations.
Primary Consideration A – Protection of the Australian Community
In considering Primary Consideration A, paragraph 13.1(1) of the Direction, compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.
This paragraph stipulates that remaining in Australia is a privilege on non-citizens. This paragraph stipulates an expectation that those non-citizens are, and have been law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining whether the mandatory cancellation of an applicant’s visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that:
(a)it must be acknowledged that remaining in Australia is a privilege conferred on non‑citizens in this country; and
(b)that those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The totality of the Applicant’s offending can be gleaned from the following documents:
(a)The report from the Criminal Intelligence Commission of 30 May 2019, containing all disclosable court outcomes of the Applicant[19].
[19]     Exhibit G1, G16, pages 85 and 86.
(b)The s501 G-Documents[20] and the Respondent’s Tender Bundle[21] of material, containing:
(i)Sentencing remarks from Judge Muir of the District Court of Queensland in Beenleigh on 18 April 2019[22];
(ii)Report from the Queensland Department of Justice and Attorney-General, regarding Sentence Calculation Details, dated 29 April 2019[23];
(iii)Queensland Court Outcomes report dated 7 July 2020[24];
(iv)Queensland Police Service Court Brief dated 6 November 2017[25];
(v)Department of Transport and Main Roads Driver Licence History dated 7 July 2020[26];
(vi)Temporary Protection Order dated 6 November 2017, in force until a further order is made[27]; and
(vii)Protection Order dated 2 May 2019, and in force until and including 25 May 2024[28].
[20]     Exhibit G1.
[21]     Exhibit R2.
[22]     Exhibit G1, G17, pages 87 to 92.
[23]     Exhibit G1, G18, pages 93 and 94.
[24]     Exhibit R2, TB1, page 1.
[25]     Exhibit R2, TB1, pages 2 to 30.
[26]     Exhibit R2, TB2, pages 31 and 32.
[27]     Exhibit A6.
[28]     Exhibit A7.
The Nature and Seriousness of the Applicant’s Conduct to Date
The offending history of the Applicant largely centres around domestic violence, and one significant offending episode which occurred on 4 November 2017, which the Applicant was later sentenced for in the District Court of Queensland on 18 April 2019.
The Applicant had been in a relationship with his former partner (whom the Tribunal will refer to as Ms X in these reasons), for approximately five years from 2011 through to 2016[29]. During the course of this relationship, the Applicant and his former partner (also referred to as Ms X by the Tribunal) had a daughter who was born in September 2013[30].
[29] Transcript, 24 August 2020, page 48, lines 19 to 23.
[30] Exhibit G1, G22, page 140.
Witness – Ms X
During the course of the hearing on the first day, the Applicant’s former partner Ms X, appeared as a witness before the Tribunal and gave evidence regarding their relationship, and the domestic violence which she had experienced during the course of this relationship. In documents exhibited to the Tribunal, outlined in Annexure 1 of these reasons, Ms X provided:
(i)a statement in relation to the Applicant regarding his application before the Tribunal dated 19 August 2020[31]; and
(ii)a hand-written letter to the Respondent in relation to their request to revoke the Applicant’s Visa dated 23 June 2019[32].
[31] Exhibit A4.
[32] Exhibit G1, G23, pages 165 and 166.
Additionally, Ms X’s father and mother both provided letters supporting the Applicant to remain in Australia[33].
[33] Exhibit G1, G23, page 143; and G23, pages 151 and 152.
When under cross-examination by the Respondent, Ms X provided the following description of the domestic violence she had experienced during her relationship with the Applicant prior to the offending which occurred on the night of 4 November 2017[34]:
“Respondent: So the occasion when he attended and you had been broken up for quite some time since the prior year in 2016, 2017 comes and that’s the first time that he’s physically violent towards you?
Ms X:Domestic violence comes in all different forms, I guess. Look there is, I guess, yes there is history of violence but not to the point that when he turned up that night…”
[34] Transcript, 24 August 2020, page 50, lines 38 to 42.

During the course of cross-examination of Ms X, the following was gleaned in terms of her relationship, and the conduct of the Applicant:
(i)That the Applicant had substance abuse issues regarding the use of alcohol, and methamphetamines during the course of their relationship[35]. The Tribunal notes that the Applicant confirmed this in his statement to the Tribunal[36].
[35]     Transcript, 24 August 2020, page 49, lines 46 to 47; and page 50, lines 1 to 8.
[36]     Exhibit A9, page 3, paragraph 38.
(ii)That the police were called to Ms X and the Applicant’s home on approximately three occasions during their relationship following arguments involving yelling and screaming, with a neighbour usually calling the police to attend[37].
(iii)That on one occasion following an argument, Ms X had called for an ambulance as the Applicant had ingested poison and tried to take their life, with the police also attending on this occasion (discussed in the 2015 Domestic Violence Incident in the reasons which follow)[38].
(iv)A protection order had been put in place prior to the dissolution of their relationship in 2016 in order to protect Ms X, her daughter (whom she shared with the Applicant) and her son (from a previous relationship), which expired in October 2016[39]. The protection order had been put in place just after their daughter was born, and in Ms X’s words, the protection order was, “more of a behaviour one that basically he needed to be of good behaviour to myself and the children”[40].
(v)After the period the protection order had expired in 2016, and following the breakdown of the relationship between the Applicant and Ms X, Ms X stated that the Applicant had tried to unsuccessfully reconcile their relationship, and did have contact with his daughter, assisting with day care pickups, and that they were “fairly amicable”[41].
(vi)Following the dissolution of her relationship with the Applicant, Ms X commenced a new relationship, and upon advising the Applicant of the new relationship, the Applicant did not take this “too well”[42].
(vii)Following the night of the offending on 4 November 2017, a temporary protection order was put in place on 6 November 2017, protecting Ms X, their daughter, Ms X’s son (with a previous partner), and Ms X’s new partner at the time[43]. This temporary protection order prevented the Applicant from seeking to contact or go near all parties that were named in the order.
(viii)The Applicant has not been near his daughter since the night of the offending on 4 November 2017[44]. Ms X confirmed the offending which occurred on 4 November 2017 as a frightening experience[45].
(ix)For the period of time following the offending which occurred on 4 November 2017 until the beginning of 2019, Ms X confirmed the Applicant had no contact with his daughter or Ms X[46].
(x)Ms X had sought to vary the temporary protection order which had been put in place prior to the Applicant’s sentencing on 18 April 2019, and on 2 May 2019, the protection order was varied to allow the Applicant to telephone and write to his daughter[47].
[37]     Transcript, 24 August 2020, page 49, lines 11 to 24.
[38]     Transcript, 24 August 2020, page 49, lines 29 to 44.
[39]     Transcript, 24 August 2020, page 52, lines 20 to 46; and page 53, lines 1 to 19.
[40]     Transcript, 24 August 2020, page 52, lines 26 to 28.
[41]     Transcript, 24 August 2020, page 53, lines 29 to 39.
[42]     Transcript, 24 August 2020, page 53, lines 41 to 45.
[43]     Exhibit A6.
[44]     Transcript, 24 August 2020, page 55, lines 15 and 16.
[45]     Transcript, 24 August 2020, page 55, lines 18 and 19.
[46]     Transcript, 24 August 2020, page 54, lines 32 to 37.
[47]     Exhibit A7; and Transcript, 24 August 2020, page 54, lines 38 to 40; and page 55, lines 4 to 13.
2015 Domestic Violence Incident
The Tribunal heard evidence from the Applicant regarding an incident at the former home of the Applicant and Ms X, which resulted in the police and ambulance attending. The Applicant recalled that they had been consuming alcohol. The Applicant and Ms X’s daughter, and Ms X’s son were present at the time.
The Applicant stated that he had asked Ms X to update them on the score of a rugby union game, with the Applicant stating that Ms X then lied to him as to the actual score of the game (which she later explained to him was done so jokingly). This then in turn made the Applicant angry, and it resulted in both the Applicant and Ms X arguing.
The Applicant stated that he got, “angrier and angrier and then I go get the poison and I drink it”. The Applicant confirmed that when he was referring to poison in this instance, he was referring to the fact that he went and consumed actual poison in the form of weed killer which was on the top shelf in the laundry of their home[48].
[48] Transcript, 24 August 2020, page 18, lines 16 to 47; page 19, lines 1 to 47; page 20, lines 1 to 47; page 21, lines 1 to 39.
The Tribunal refers to the following exchange[49]:
“Respondent: What did you think would happen when you drank the weed killer?
Applicant:I don’t know, sir. I wasn’t in my right mind, because I was drinking. I was just … and then I drank it, and then, yes, that’s why when [redacted – Ms X] saw me and then she ran out the back of the deck and then yelling at me what the hell am I doing - and yes, and then she was crying and calling the cops, and I think the guys from next door heard her and then running over and then - that’s why when he put his finger in my throat to make me vomit. Yes, and then when the police came, like, I was still, like, aggressive, like I don’t want anyone to touch me or anything like that. But I could still hear [redacted – Ms X] was crying, and I think I passed out after that, which I don’t really remember. I just woke up in the hospital the next day.”
[49] Transcript, 24 August 2020, page 21, lines 12 to 22.
The Tribunal notes that Ms X confirmed the events of this incident under cross-examination, the Tribunal refers to the following exchange[50]:
“Respondent: Okay. Are you sure there is no occasion when you had reason to call the police?
Ms X:The only time was I called the ambulance, because he had ingested poison and the police came as well.
Respondent: And can you explain to the tribunal – can you just describe for the tribunal what happened on that occasion, when he ingested poison?
Ms X:Yes, we’d had an argument and basically, at the end of – well not at the end of the argument but as a part of it he was quite drunk and he had taken poison and – like he tried to take his life, I guess.”
[50] Transcript, 24 August 2020, page 49, lines 29 to 37.
Offending committed on 4 November 2017
The Tribunal will now turn to the one significant offending episode of the Applicant which occurred on the night of 4 November 2017. The Tribunal refers to the sentencing remarks of Her Honour Judge Muir of the District Court of Queensland on 18 April 2019, which outlines what occurred on this night, in addition to the convictions of the Applicant[51]:
[51] Exhibit 1, G1, G17, pages 87 to 92.
“I'm sentencing you today for one count of burglary by breaking with violence, for which the maximum penalty is life imprisonment. I'm then sentencing you three counts of common assault, for which the maximum penalty is three years imprisonment, and two counts of serious assault while armed, for which the maximum penalty is 14 years imprisonment.
You pleaded guilty when you were arraigned before me today. In the circumstances that have been outlined, even though these offences occurred in November 2017, there were other charges involved. And ultimately, in the way that you have conducted this matter, you have assisted in administration of justice and I have taken that into account. I've also taken into account that your guilty plea does assist in the administration of justice and I've taken it into account in determining the penalty I'm going to impose upon you today. I accept your guilty plea is an indication of your remorse and that, indeed, it seems when you sobered up the next night and participated in a record of interview, you were very sorry for your offending behaviour.
You pleaded guilty based on a schedule of facts that I’ve made exhibit 1 before me. The circumstances were that you and one of the complainants, [redacted – Ms X], had been in a relationship for about five years and you had a four year old daughter together. You separated in March 2016 and in the period between March 016 and November 2017, you were having contact with your daughter. On the 4th of November 2017, [redacted – Ms X] was at her house with a few friends and they were having drinks on the back deck. Your daughter was also there. She then received a number of text messages from you, insisting that you were going to come over that night. She told you not to come to the house, but despite this, you attended sometime, it seems, around 8.20 to 8.30 pm.
[Redacted – Ms X] ran to the door to close it when she saw that it was you and not her friend's partner at the door, but you opened the door and entered the house. You then grabbed [redacted – Ms X] and yelled at her, "Who is it?" It seems that what fed your conduct on that night was your jealousy towards [redacted – Ms X] having potentially entered into a new relationship. You then rushed around the house, knocking over furniture, and headed towards the back deck, kicking furniture along the way. [Redacted – Ms B] and [redacted – Ms W] were on the back deck and one of them phoned the police.
[Redacted – Ms X] held your arm and tried to explain that it was only female friends at home. You turned around and grabbed her upper arm and neck, and that's the beginning of count 2. You then pushed her into the kitchen and forced her into the fridge. Then [redacted – Ms B] came into the house. You yelled at [redacted – Ms X], "You did this. You're playing me." You said things such as, "Someone is going to die tonight and I'm going to die tonight." [Redacted – Ms B] yelled at you to stop. You punched her. You then punched [redacted – Ms X] in the chin and you continued to hold [redacted – Ms X] tightly by her throat.
Your daughter was in the lounge room and was frightened. [Redacted – Ms B] attempted to get you off [redacted – Ms X]. And while still holding [redacted – Ms X], you grabbed [redacted – Ms B]’s arm and pushed her backwards against a glass door. That's count 4. You then shouted, "Who the fuck are you?" and [redacted – Ms B] went back outside and [redacted – Ms W] was still on the phone to police.
[Redacted – Mr S] then arrived and you then asked him, "Are you him?" Ultimately, you rushed outside of the house and pushed [redacted – Mr S] and told him, "I'm going to take your head off." [Redacted – Mr S] tried to talk you down. You threw a couple of punches at him and [redacted – Ms X] was holding your shirt in an attempt to move you away from [redacted – Mr S]. You then said to [redacted – Mr S], "Do you want to go, bro? I'll go you," and "Life doesn't matter to me anymore."
Ultimately, in the next few minutes, you then raced into the kitchen and picked up a knife. You said, "Where's the fucking bitch?" You walked towards [redacted – Ms X]’s bedroom. [Redacted – Mr S] asked you for the knife. You lifted the knife to your throat and said, "If I just kill myself here, all this shit will go away." [Redacted – Mr S] told you that that would not solve anything and you said, "I've got nothing to live for without her. She's my world." You applied pressure to your neck in a cutting motion. However, [redacted – Mr S] grabbed your arm and stopped you.
Later, the police arrived and you became very aggressive and abusive towards two police officers. You turned to one of them and repeatedly yelled things like, "I will stab you," and "I will kill you, coz," "I' going to kill myself," and "Death by cop." Constable [name redacted] repeatedly told you to take your hands out of your pockets. And you continued to shout threats at the police officers, including that you would kill them both.
Ultimately, you did not comply with police instructions to remove your hands from your pockets and Constable [name redacted] thought you were armed with a knife, based on the information he had been provided, and she had her hand on her firearm, but di d not draw it. Constable [name redacted] warned the defendant that she had a taser. And you shouted “I have a gun. Shoot me or I’ll shoot myself,” and then you reached into your pocket. You attempted to charge towards the police. [Redacted – Mr S] then grabbed you in a deadlock and restrained you until the police were able to handcuff you.
The following night, in sobriety, you took part in a record of interview and you said you'd gone to the house in an attempt to rekindle your relationship and you could not recall all of the incident and you were deeply sorry and embarrassed and you felt very bad for your daughter. This offence was not committed at a time a protection order was in place, but there had been a protection order in place which had expired on the 30th of October 2016.
It is serious violent offending. It was premeditated and fuelled, it seems, by rage and jealousy. And very concerningly, you were willing to do it in front of, or near, your four year old daughter. You did, in my view, impose a reign of terror on a group for up to 20 minutes and upon a person who you had just told [redacted – Mr S] that was your world. I don't have a victim impact statement, but in my mind there is no doubt that this would have been a frightening experience for all involved. You also put the police in a really difficult position because by your conduct, you had threatened them and you were threatening to harm yourself. In my view, it is indeed a very serious example of domestic violence.
You were 32 at the time and you are 33 now. You appear before me without any criminal history. And you have been on bail for a considerable period of time. During that time, I understand you have not been able to see your daughter because of bail conditions and the protection order. You have continued to pay $80 child support, which has been taken out each week.
You were born in New Zealand and headed to Australia 10 years ago. You have been gainfully employed and I have references that speak very highly of you. I'm told you're involved in the church. You don't ordinary drink. And, leaving aside that there had been a protection order in place, I accept that you are otherwise of good character. I've received your letters of remorse that you have written and I've taken those into account.
In my view, one of the things that concerns me in this case, though, is that I have no evidence to show that you've undertaken any counselling or any steps to deal with your anger management. And that does particularly concern me. I have no psychology reports to assist me in understanding further how you could have acted in the way that you did on this night.
It's been submitted on behalf of the Crown that, taking a global approach to the sentence, I would attach a head sentence of three years. And you would be required to serve one year actual custody. Your counsel urges upon me to structure a sentence that entails a head sentence no greater 12 months and one also that would see you have some special conditions and undergo an intensive program in the community. Obviously, one of those reasons, perhaps, is because a sentence more than 12 months will see you potentially be exported and one with actual custody may see you having to return to New Zealand. As the Court of Appeal has said in R v UE [2016] QCA 58, that these are not factors that are necessarily relevant to the exercise of my discretion, but I have certainly taken that into account, to some extent, in determining the penalty I'm going to impose upon you.
I have taken into account all of the Court of Appeal authorities provided to me: R v Rankin [2004] QCA 2; R v Fitzgerald [2004] QCA 241; R v Denham ex parte Attorney General [2003] QCA 74; R v Ross [2012] QCA 247; R v Buckley and Ghattas [2014] QCA 98. As the Court of Appeal observed in Fitzgerald at paragraph 14, with reference to R v Wendt, "offences of this character which threaten the safety of persons in their own home are commonly regarded as sufficiently serious to demand custodial sentences, even in the case of persons of previous good character." Although I do observe that later in Fitzgerald, the court considered the decision of R v Denham, which your counsel has provided me, observing that that does not mean that an actual custodial sentence is demanded in every case in which a person of previous good character threatens the safety of another in that other's own home.
In the present case, I have reached the view that actual custody is required in your case. In my view, this is a serious example of offending when I look at the overall criminality, particularly when I include the conduct towards the police on this night. It's a case where I cannot see, apart from there being no reoffending in the interim period, that there has been positive steps at rehabilitation. I've no evidence to show that you have taken steps to deal with, obviously, the emotions that led to your behaviour that night, particularly those threatening to take your own life and to harm those of others. I've also taken into account that a period of imprisonment is not a penalty of last resort and I've considered the factors in section 9(3).
In terms of penalty, I have balanced all of the relevant considerations, in relation to count 1, you are convicted and sentenced to two years imprisonment. In relation each of counts 2, 4, and 5, you are convicted and sentenced to six months imprisonment. In relation to each of counts 8 and 9, you are convicted and sentenced to one year imprisonment. I order that the terms of imprisonment be suspended after you have served a period of six months imprisonment and that you must not commit another offence punishable by imprisonment within a period of three years if you are to avoid being dealt with for the suspended term of imprisonment. And these sentences will run concurrently.”
[Tribunal bolding for emphasis]
The Tribunal notes that the Applicant confirmed in their evidence under cross-examination that they were represented in the criminal proceedings by a criminal defence lawyer when he appeared before the District Court of Queensland on 18 April 2019, with the Applicant pleading guilty to the offences outlined in the schedule of facts[52].
[52] Transcript, 24 August 2020, page 30, lines 24 to 36.
The Applicant’s evidence under cross-examination at the hearing in relation to the events of this night can largely be summarised as, initially either denying offences occurred and offering an alternate version of events; or not being able to recall the circumstances surrounding the offences when they were committed[53].
[53] Transcript, 24 August 2020, page 26 lines 31 to 45; page 27, lines 1 to 47; page 28, lines 1 to 47; page 29, lines 1 to 44; page 30, lines 1 to 23.
In respect of whether or not the Tribunal is able to bring into question the underlying facts of prior convictions, the Tribunal notes that this has been considered on a number of occasions by judicial officers.
More recently, the Tribunal refers to HZCP v Minister for Immigration and Border Protection[54], where His Honour Bromberg J, stated the following principles should be applied, with reference to paragraph 78 of his judgement:
“78. I would respectfully adopt the distillation of the case law described by Beach, McLeish and Niall JJA in LLF. On that basis the applicable principles are these:
(1)Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
(2)Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.”[55]
[54] [2018] FCA 1803.
[55] Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155.

The Tribunal notes that this decision was later upheld by the Full Federal Court, where His Honour McKerracher J stated at paragraph 77 of the judgement[56]:
“77. As a matter of policy, it would be highly undesirable if Minister or the Tribunal exercising a decision-making power that is founded on an earlier decision of a criminal court could, in effect, challenge the propriety or correctness of that decision, or reopen findings on which the decision was necessarily based. To make a finding of “another reason” on facts necessarily inconsistent with the conviction and sentence would be an incongruous outcome. It has long been recognised that the adjudgment and punishment of criminal guilt is an exclusively judicial function: Waterside Workers’ Federation of Australia v J W Alexander Ltd [1918] HCA 56; (1918) 25 CLR 434 per Griffiths CJ (at 444); Federal Commissioner of Taxation v Munro [1926] HCA 58; (1926) 38 CLR 153 per Isaacs J (at 175); Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 per Mason CJ (at 258); Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 per Brennan, Deane and Dawson JJ (at 27) and Re Woolley; Ex parte Applicants M276/2003 (by their next friend GS) (2004) 225 CLR 1 per McHugh J (at [53]).The adjudgment of guilt, and the determination of the punishment to be imposed as a consequence (including a sentence of imprisonment), fall within the central conception of judicial power. It is inconsistent with this principle at the heart of the separation of powers to suggest that an administrative decision-maker could come to a factual conclusion contrary to that of a court when making an adjudgment and punishment of criminal guilt which is, in turn, the precondition to that administrative decision-maker’s power.”
[56] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.
The Applicant was charged and convicted of the violent offences committed on innocent victims on the night of 4 November 2017. The sentencing remarks of Her Honour Judge Muir of the District Court of Queensland noted the seriousness of the offences of the Applicant, with Her Honour stating, “In my view, it is indeed a very serious example of domestic violence”[57]. The offences resulted in sentences of imprisonment being imposed on the Applicant. The Tribunal has considered the circumstances of the Applicant’s offending, such as his substance abuse issues, and the nature of the Applicant’s relationship with Ms X.
[57] Exhibit G1, G17, page 90.
The Tribunal does not regard the Applicant as having discharged the substantial onus of challenging the facts of the convictions against him. The Tribunal gives significant weight to the court’s consideration of the facts of the offences and to the seriousness with which Her Honour Judge Muir regarded the offending of the Applicant.
Despite the Applicant in the present matter initially either denying events or offering alternate versions of events, the Applicant did eventually concede to the violence that he had inflicted on his victims that night[58]. The Tribunal refers to the following exchange[59]:
[58] Transcript, 24 August 2020, page 30, lines 38 to 47; page 31, lines 1 to 47; page 32, lines 1 to 9.
[59] Transcript, 24 August 2020, page 31, lines 9 to 19.
“Respondent: In addition to your behaviour, or your conduct towards the police, you’d have to agree that your conduct was violent towards [redacted – Ms X]?
Applicant:Yes.
Respondent: And it was violent towards [redacted – Ms X]’s female friend, [redacted – Ms B]?
Applicant:Sorry?
Respondent: Your conduct was also violent towards [redacted – Ms B], the female friend?
Applicant:Yes.
Respondent: And you were violent towards [redacted – Mr S], the male friend?
Applicant:Yes. Yes, to be honest, yes, I’m - like I said, I’m - they were all innocent on that night. I shouldn’t - they were - yes, they were all trying to calm me down, but I wish I just listened to them. But I wasn’t.”
[Tribunal insertions]
The Tribunal notes that the Applicant was heavily intoxicated at the time of this incident, the Applicant had confirmed he had been drinking with his father at his parents’ home earlier in the evening[60]. The Applicant then drove to Ms X’s home intoxicated, which was captured in the following exchange[61]:
“Respondent: So in the body, in the middle of this page, there’s an entry for 4 November 2017, the drink driving offence that I referred to earlier?
Applicant:Yes.
Respondent: Do we understand from that that your licence was suspended for a period of time?
Applicant:Yes.
Respondent: That day corresponds with the incident in November 2017. I take it you consumed alcohol and you drove to your partner’s place?
Applicant:Yes.”
[60] Transcript, 24 August 2020, page 24, lines 30 to 36.
[61] Transcript, 24 August 2020, page 23, lines 34 to 41.
Records before the Tribunal confirm the Applicant had a blood alcohol reading of 0.14 (almost three times the legal limit of 0.05), and was immediately disqualified from driving on 4 November 2017[62].
[62] Exhibit R2, TB2, page 32.
The Tribunal views the Applicant’s domestic violence offending, and his offending on the night of 4 November 2017 as very serious. The Tribunal is of the view that this finding is consistent with the application of the following relevant sub-paragraphs in paragraph 13.1.1(1) of the Direction:
“a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c) The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f) The cumulative effect of repeated offending;
…”
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction further provides that crimes of a violent nature against women or children are viewed very seriously, “regardless of the sentence imposed”.
The Tribunal has outlined in earlier reasons the history of the domestic violence offending of the Applicant, which impacted his former partner and occurred in front of his own daughter. The Applicant’s offending has been described by Her Honour Judge Muir in the District Court of Queensland (transposed in earlier reasons, but repeated here) as[63]:
“It is serious violent offending. It was premeditated and fuelled, it seems, by rage and jealousy. And very concerningly, you were willing to do it in front of, or near, your four year old daughter. You did, in my view, impose a reign of terror on a group for up to 20 minutes …
… there is no doubt that this would have been a frightening experience for all involved…it is indeed a very serious example of domestic violence.”
[63] Exhibit G1, G17, pages 89 and 90.
In submissions to the Tribunal, the Applicant conceded that their offending must be viewed very seriously[64]:
“52. It is conceded that the index offending must be viewed very seriously given its violent and threatening nature against a woman who he was previously in a relationship with.”
[64] Exhibit A1, page 9, paragraph 52.
The Applicant’s offending in the domestic setting against his former partner and her friends which were present can only be regarded as very serious by this Tribunal, for the purposes of sub-paragraph (a) and (b) of paragraph 13.1.1(1) of the Direction.
The Tribunal has had regard to the provisions of sub-paragraph (c) of paragraph 13.1.1(1) of the Direction and is of the view that the factual circumstances of the Applicant’s offending attracts the application of this sub-paragraph, as determinative of the nature or seriousness of the Applicant’s offending.
The Applicant was convicted and sentenced to a term of imprisonment for assaulting police officers called to assist on the night of the Applicant’s offending on 4 November 2017. The Applicant was aggressive and abusive towards the police who attended, threatening to not only kill the attending police, but that he would also kill himself. Her Honour Judge Muir in the District Court of Queensland in her sentencing remarks described the Applicant’s offending towards police[65]:
“You also put the police in a really difficult position because by your conduct, you had threatened them and you were threatening to harm yourself.”
[65] Exhibit G1, G17, page 90.
During cross-examination the Applicant conceded the offences which they had been convicted of against police officers on the night of this offending[66]:
[66] Transcript, 24 August 2020, page 22, lines 46 and 47; page 23, lines 1 to 6; page 30, lines 38 to 47; and page 31, lines 1 to 4.
“Respondent: Can you see the two - the other offences, “Serious assault police officer,” at the top?
Applicant:Yes.
Respondent: And a “Common assault, domestic violence (indistinct),” below that?
Applicant:Yes.
Respondent: So what I was asking you about was - I was drawing this to your attention and asking you if you agree that this is true; this accurately records the offences that you’ve been convicted of, that’s correct?
Applicant:Yes.
…
Respondent: And can I just pick up on what you were talking about - your behaviour towards the police officers. You have contested that you were aggressive. Do you at all acknowledge, or agree, that you were showing violence towards the police officers?
Applicant:Yes, I agree - I agree I was - I was showing violence towards police. I never meant to disrespect the officers and (indistinct) disrespect the law of Australia. I was - I was so [hurtful] from the break up and everything, this no excuse, but I was (indistinct) towards (indistinct) when I say, ‘Fuck off, I got a knife.’ And that’s how far I go. I never - I never say anything about snapping, or I never say anything, ‘I have a gun,’ or anything. And I - I remember when I say, ‘I got a knife,’ and then I heard someone - there was a person [next] - someone was telling to the police, ‘No, he’s lying, he doesn’t have anything.’ And then that’s when [same] the fellow who give me the headlock, he told me - well, he - you can’t say that the police - you can’t say that to police, you will go to gaol for that.”
[Tribunal clarifications in the transcript]
There is no doubt in the Tribunal’s mind that the Applicant has enlivened sub-paragraph (c) of paragraph 13.1.1(1) of the Direction. The Tribunal finds the nature of the Applicant’s offending towards the police officers who attended the incident on the night of 4 November 2017 as very serious.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) of the same paragraph of the Direction), to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen (or the Applicant). The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of a given offence committed by the Applicant.
As outlined by the Tribunal at the beginning of these reasons, the Applicant arrived in Australia at the age of 20 years. Passenger movement records indicate that since the Applicant’s arrival into Australia on 16 October 2005, their only departures from Australia since settling here have been three trips to New Zealand, as outlined below[67]:
(i)Depart Australia on 21 December 2006 and returned on 19 January 2007, absent for 29 days;
(ii)Depart Australia on 6 February 2009 and returned on 7 March 2009, absent for 29 days; and
(iii)Depart Australia on 14 January 2013 and returned on 26 January 2013, absent for 12 days.
[67] Exhibit G1, G24, page 173.
Since the age of 20, the Applicant has been part of the mainstream Australian community. Whilst the Applicant has only been subject to one sentencing episode, it was for six offences, each of which he received a conviction for and sentenced to a term of imprisonment.
The Applicant’s offending culminated in the sentencing of custodial terms totalling three and a half years[68]. The Tribunal is mindful that a parole release date came into operation reducing the total time the Applicant spent in criminal custody.
[68] Exhibit G1, G16, pages 85 and 86; and Exhibit R2, TB1, page 1.
With the Applicant having arrived in Australia in 2005, and having predominantly spent the almost 15 years living in Australia, the Applicant’s very serious offending against his former spouse, and innocent victims, resulted in a sentencing regime representing custodial time equivalent to just over a fifth of his total time in Australia (not including time spent by the Applicant in immigration detention).
Sentences involving imprisonment are the final resort in the sentencing hierarchy, and in the Tribunal’s mind there is no doubt that the Applicant’s offending has enlivened the application of sub-paragraph (d) of paragraph 13.1.1(1) of the Direction. Therefore, there is no other finding by this Tribunal other than this Applicant’s offending is indeed of a very serious nature.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness. To an extent, the investigatory exercise required by this sub-paragraph (e) largely mirrors that required by the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of the offending is usually analogous to the regime of sentencing imposed for it.
Whilst the Applicant has only been subject to one sentencing episode in their offending history, the Tribunal has been presented with evidence that there was a history of domestic violence involving the Applicant. It is clear in the timeline of evidence before the Tribunal, that the Applicant’s offending (with particular regard to domestic violence) has increased in its seriousness over time.
Following the 2015 Domestic Violence Incident (for which the Tribunal acknowledges no criminal convictions resulted); the Applicant then went on to very seriously offend on the night of 4 November 2017, and was ultimately sentenced to a term of imprisonment.
In closing submissions before the Tribunal, the Applicant through their representation contended that their offending “…is not frequent and cannot be said to have any cumulative weight as his criminal conduct was limited to the events of the night in November 2017. He has not committed any offences whilst in immigration detention, and has not received a formal warning from the respondent in the past about further criminal offending. The index offending of course is his first entry into his criminal history”[69].
[69] Transcript, 25 August 2020, page 86, lines 40 to 47.
Whilst the Tribunal observes that the Applicant’s criminal offending history relates to multiple offences committed on one occasion, the offences committed by the Applicant involve very serious offences. The Applicant was convicted of one count of “enter dwelling with intent by break at night uses/threatens violence – domestic violence offence”; two counts of “serious assault police officer whilst pretending/is armed with a weapon”; two counts of “common assault”, and one count of “common assault - domestic violence offence” [70], and sentenced to multiple terms of imprisonment totalling three and a half years.
[70] Ibid.
The Tribunal is of the view that the application of sub-paragraph (e) of paragraph 13.1.1(1) of the Direction is not limited to a count on the number of offences committed by the Applicant to determine whether there was an increasing trend that could be classified as ‘frequent’; the application of this sub-paragraph is more nuanced. The Tribunal refers to the decision of Lee and Minister for Home Affairs (Migration)[71], where Senior Member Raif at paragraph 27 stated:
“… the Tribunal does not agree with the applicant’s assessment, which appears to suggest that a determination of whether a criminal record is substantial is limited to the number of offences or their frequency. In the Tribunal’s view, a criminal record may be substantial by reference to the nature of the offences and even a single significant offence can constitute a substantial criminal record.”
[71] [2019] AATA 871 (15 May 2019).
In the Applicant’s case, the Tribunal refers to the sentencing remarks of Her Honour Judge Muir of the District Court of Queensland, where she explicitly took into account the implications for the Applicant regarding possible deportation in handing down a head custodial sentence of three and a half years, transposed below[72]:
“It's been submitted on behalf of the Crown that, taking a global approach to the sentence, I would attach a head sentence of three years. And you would be required to serve one year actual custody. Your counsel urges upon me to structure a sentence that entails a head sentence no greater 12 months and one also that would see you have some special conditions and undergo an intensive program in the community. Obviously, one of those reasons, perhaps, is because a sentence more than 12 months will see you potentially be exported and one with actual custody may see you having to return to New Zealand. As the Court of Appeal has said in R v UE [2016] QCA 58, that these are not factors that are necessarily relevant to the exercise of my discretion, but I have certainly taken that into account, to some extent, in determining the penalty I'm going to impose upon you.”
[72] Exhibit G1, G17, pages 87 to 92.
The Tribunal is of the view that the Applicant’s criminal offending was of a very serious nature from its outset as it involved multiple victims, violence, and threatening to kill not only himself, but innocent victims. Indeed, Judge Muir described the Applicant’s offending as, “… a very serious example of domestic violence”[73].The Tribunal is of the view that the weight attributable to sub-paragraph (e) of paragraph 13.1.1(1) of the Direction is such that it militates a decision in favour of non-revocation, and that the Applicant’s offending is deemed very serious.
[73] Exhibit G1, G17, pages 87 to 92.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending.
The Applicant’s submissions to the Tribunal, state that in relation to the Applicant’s offending it, “… is not frequent and cannot be said to have any cumulative weight as his criminal conduct was limited to a one-off incident”[74].
[74] Exhibit A1, page 9, paragraph 53(a).
Whilst the Applicant’s criminal convictions are limited to the one sentencing episode for the offending which occurred on 4 November 2017, the Tribunal is of the view that the Applicant’s conduct is of a very serious nature from its outset. Submissions before the Tribunal confirm that prior to the offending on this date, there was a history of domestic violence. This point was confirmed by the Applicant’s former partner[75], and on the final day of the hearing the Applicant conceded that his conduct during his relationship with his former partner had a last effect on her as captured in the following submission from the Applicant[76]:
“Applicant:     The impact - the impact that affected [redacted – Ms X] of my actions. She used to be a loving person. She used to be a trusted person. But that was all changed because of the way that I’ve been treating her. She - I make her feel unloved. I make her like she doesn’t trust what love’s all about anymore. She doesn’t trust men because of - she doesn’t trust any promises because I gave her promises and then I - I betrayed her. She feel betrayed because that’s all she ever did to me was loving me and trusted me. And then I take advantage of that. And then I’m so ashamed the way that I - that I’m - that I did to her. That’s why she been saying to me she’s not like - I remember her saying to me like she used to be a loving person, and happy person, and now she lost all that because of the way that I been treating her in the past. She feels scared of me just for now - she’s scared of me sometimes. And that’s the impact on her. Like she doesn’t trust what love’s all about anymore.”
[75]     Transcript, 24 August 2020, page 50, lines 38 to 42.
[76]     Transcript, 25 August 2020, page 81, lines 17 to 29.

The Tribunal is of the view that the Applicant’s offending is such that, the application of sub‑paragraph (f) of paragraph 13.1.1(1) of the Direction to the factual circumstances of the Applicant gives rise to a finding that the cumulative effect of the Applicant’s offending, even of such a short period, is such as to render it very serious.
The Tribunal is of the view that the factual circumstances of the Applicant’s offending do not attract the application of sub-paragraph (g); sub-paragraph (h); or sub‑paragraph (i) of paragraph 13.1.1(1) of the Direction, as determinative of the nature or seriousness of the Applicant’s offending.
Having regard to all the evidence before the Tribunal, which sub-paragraphs (a), (b), (c), (d), (e), and (f) of paragraph 13.1.1(1) of the Direction are relevant, the Tribunal is of the view that the Applicant’s conduct can be clearly characterised as very serious.
OTHER CONDUCT
The chapeau to the factors at paragraph 13.1.1(1) of the Direction reads as follows:
“(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including: …”
[Tribunal’s underlining]
Driving offences
There is in the Tribunal’s mind, an additional element to the Applicant’s adult offending that falls within the chapeau to paragraph 13.1.1(1) of the Direction. This relates to the Applicant’s drink driving conviction and immediate disqualification from driving on 4 November 2017.
Records before the Tribunal confirm the Applicant had a blood alcohol reading of 0.14 (almost three times the legal limit of 0.05), and was immediately disqualified from driving on 4 November 2017[77].
[77] Exhibit R2, TB2, page 32.
The Tribunal in the present matter concurs with the findings of Senior Member Poljak in Kohli and Minister for Immigration and Border Protection [2017] AATA 1326, where at paragraph 20, Senior Member Poljak stated:
“20. The laws against driving under the influence of alcohol are specifically designed to protect members of the Australian community from serious physical harm and/or death. The applicant’s offences of driving under the influence of alcohol are serious and show reckless indifference to the safety of the wider community…”
Whilst this conduct may not necessarily fall within the specific parameters of any of the nine sub-paragraphs of paragraph 13.1.1(1) of the Direction, nevertheless, the Tribunal is of the view that this conduct does come under the abovementioned chapeau to the factors outlined in paragraph 13.1.1(1).
This additional element to the Applicant’s offending is, when read in conjunction with the Tribunal’s findings about the relevant sub-paragraphs of paragraph 13.1.1(1) of the Direction, relevant to an assessment of the nature and seriousness of the Applicant’s conduct.
Having regard to all of the evidence and submissions made to the Tribunal, which are outlined in the abovementioned relevant sub-paragraphs (a), (b), (c), (d), (e), and (f) of paragraph 13.1.1(1) of the Direction, and the ‘other conduct’ as outlined above; the Tribunal is of the view that the Applicant’s conduct can only be characterised as very serious.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) of the Direction provides that in considering the risk to the Australian community, a decision-maker should have regard to the two following factors on a cumulative basis:
(1)Paragraph 13.1.2(1)(a) of the Direction requires the Tribunal to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(2)Paragraph 13.1.2(1)(b) requires the Tribunal to consider the likelihood of the non‑citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending.
The Nature of the Harm to Individuals or the Australian Community were the Applicant to Engage in Further Criminal or Other Serious Conduct
Paragraph 6.3(4) of the Direction guides decision-makers with the following principle in relation to the risk of re-offending:
“In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.”
In the Applicant’s submissions before the Tribunal it has been contended that[78]:
“62. In circumstances where the Applicant has made significant and relevant rehabilitation efforts and has a sound prevention plan in place, it is our submission that any further offending by the Applicant, if any, is likely to be far less serious in nature than his most serious offending conduct, the subject of his conviction.
63.In the premises, it is submitted that:
(a) the nature of any potential future harm attributable to the Applicant would be significantly less serious than his previous offending;
…”
[78] Exhibit A1, page 15, paragraphs 62 and 63.
As part of submissions before the Tribunal, the Applicant (at the request of their representation) underwent a psychological assessment via teleconference on 9 October 2019, in relation to the review of the decision of the delegate of the Minister regarding cancellation of the Applicant’s Visa in accordance s501(3A) of the Migration Act[79].
[79] Exhibit A3.
The outcome of the psychological assessment of the Applicant was a report of 3 November 2019, undertaken by Dr Jacqui Yoxall, Psychologist. Dr Yoxall stated in her report that the Applicant “was referred for psychological assessment, with specific focus on risk of reoffending and whether he presents a danger to Australian society”[80].
[80] Exhibit A3, page 5, section 2.
Dr Yoxall’s report as of 3 November 2019 provided the following summary and conclusion in relation to the Applicant[81]:
[81]     Exhibit A3, pages 22 to 24.
“The findings are as follows:
1. Prior to this offending on 4 November 2017, Mr Savaiinaea had no criminal history, either in Samoa or Australia.
2. Mr Savaiinaea’s relationship with [redacted – Ms X] was challenged by his drug use and his immaturity. He said that he couldn’t cope with the separation in 2016 and fell into depression and alcohol misuse. He described rumination and sexual jealousy.
3. Information available indicates that at the time of the offending on 4 November 2017 his judgment was substantially compromised by alcohol intoxication, depression and grief following the breakdown of his relationship [redacted – Ms X], and extreme sexual jealousy and emotional distress. He said that he has limited memory of the incident, so substantial was his distress and intoxication.
4. Mr Savaiinaea said that he felt deeply ashamed, remorseful and regretful when he realized, the following day, what behaviours he had engaged in. He noted that violence against others, particularly women, is against his values. He said that his own behaviour has shocked him. He demonstrated empathy for [redacted – Ms X] and others he assaulted, and for the police that attended and tried to resolve the situation. He said that he is deeply ashamed and regretful that his daughter witnessed his offending.
5. However, remorse is not a reliable predictor of reoffending.
6. In the period of time between his arrest and his sentencing Mr Savaiinaea was on bail. He maintained employment, provided financial support to his daughter and resolved his alcohol misuse. In this regard he demonstrated capacity to live a responsible and law-abiding life and to adhere to the conditions of bail.
7. Since he has been incarcerated Mr Savaiinaea has been of good behaviour and had engaged in employment and more recently, AA, in order to better understand his use of alcohol and to manage his abstinence when he returns to the community, either in Australia or overseas.
8. A standardized measure of risk of general reoffending identified Mr Savaiinaea as being of low risk of general reoffending.
9. An actuarial measure of risk of violent reoffending (not spousal) identified Mr Savaiinaea as being of low to moderate risk. Another measure of risk of spousal assault rated Mr Savaiinaea as being of moderate risk of violent offending against a spouse and of low risk of violent offending against others. Caution needs to be used in regard to reliance upon qualitative descriptors such as ‘low’ or ‘moderate’. Percentile comparing an offender’s score to a normative sample are more informative.
10.The literature on risk assessment is vast and cannot be covered in this report. However, it is clear that actuarial risk assessments do not adequately address the various static and dynamic factors and protective factors that should be applied in prediction of reoffending. Structured professional judgment tests incorporate clinical judgment and other collateral information to be conjointly considered and therefore are preferred. In this case, although Mr Savaiinaea did not have a criminal history prior to the offending on 4 November 2017, the offending against [redacted – Ms X], her friend and police was extremely serious and involved substantial violence and threats. The offending in front of a child is even more concerning.
11.These factors indicate that Mr Savaiinaea is in substantial need of evidence-based psychological intervention and rehabilitation for not only alcohol abuse but for anger management, emotional regulation and, more overall, domestic violence. There are a range of evidence-based programs for treatment of perpetrators of domestic violence available in the community (and often in correctional centres). Engagement in such rehabilitation will substantially reduce his risk of reoffending.
12.Deportation to New Zealand would be very challenging for Mr Savaiinaea primarily because it would force the separation of him and his daughter. It would also mean separation from his parents and siblings and extended family in Australia. Mr Savaiinaea doesn’t have current knowledge of New Zealand and does not have social, employment or health contacts in that country. If he were to be deported, he would be at substantial risk of relapse to substance use and depression.”
Dr Yoxall’s initial assessment of the Applicant’s likelihood of re-offending in her report of 3 November 2019, was that the Applicant was of:
(i)Low risk for general re-offending (using a standardised measure of risk);
(ii)Low to moderate risk for violent re-offending (using an actuarial measure of risk); and
(iii)Moderate risk in relation to violent re-offending against a spouse; and low risk of violent re-offending against others (using an actuarial measure of risk for both assessments);
Additionally, that the Applicant was in “substantial need of evidence-based psychological intervention and rehabilitation for not only alcohol abuse but for anger management, emotional regulation and, more overall, domestic violence”.
Following Dr Yoxall’s report of 3 November 2019, an additional letter was submitted to the Tribunal dated 19 August 2020 from Dr Yoxall. This letter further updated her opinion offered in relation to the risk of the Applicant re-offending in her original report[82]. Critically, Dr Yoxall provided the following update in relation to her assessment of the Applicant’s likelihood of re-offending[83]:
“I appreciate that a passage of time has passed since my assessment of Mr Savaiinaea. If all other matters addressed in my report of 3 November 2019, have remained essentially the same, and on the basis that Mr Savaiinaea has effectively engaged in the noted personal development and rehabilitation, it would be my view that his engagement in the noted groups and programs would have most likely reduced his risk of reoffending, particularly in regard to spousal violence.
I would also suggest that engagement in some sort of counselling or support group/ program (formal or informal) to re-integrate to community and maintain these gains would also be of benefit to Mr Savaiinaea. Specifically, if these conditions were met, I would think it more appropriate for the risk of reoffending in terms of domestic violence to be considered to be low.”
[82] Exhibit A5.
[83] Exhibit A5, pages 3 and 4.
The Applicant submitted a number of participation certificates for courses offered to the Applicant whilst in immigration detention to the Tribunal. The certificates of participation begin in February 2020 and go through to August 2020, and cover topics relating to anger management, fathers reconnecting with their children and life skills[84].
[84] Exhibit A2 and Exhibit A8.
The Tribunal heard evidence from Dr Yoxall that in relation to reviewing the Applicant’s involvement in these courses which he had presented the participation certificates for. Dr Yoxall stated that she had reviewed these courses and her opinion was formed based off the following[85]:
“Dr Yoxall: So Mr Savaiinaea, as I was advised, has completed a variety of programs, I think approximately March, February this year, specifically a lot at Yongah Hill, and I received a range of documentation to evidence that. I mapped the components of those programs, and look, they’re good programs, they’re modularised programs that look at a variety of psychosocial issues and a range of psychoeducation elements to those programs, and looked at that compared to the common issues that are - that usually require amelioration for people who [perpetrate] domestic violence offences, but also specifically for Mr Savaiinaea… So the work that he did on paper certainly indicated that a lot of those [rehabilitation] needs at least had been, and I’m not going to say fully addressed, but they had been - there had been an engagement in that process that addressed those rehabilitation needs. And it was reasonably comprehensive, in my opinion, and in comparison to what I’ve seen over, sort of, 23 years. And so from that point of view, these dynamic risk factors, when addressed through rehabilitation, you know, that’s what then creates a reduced level of [risk] moving forward because the person has essentially established some skills, a better understanding and insight and a different way of thinking about the events that happened and a plan for the future of how to address things differently. I said in that letter that there’s an assumption of - my conclusion is based on an assumption that all other things remain similar or same, and that the certificate of participation indicates genuine participation. I did speak to Mr Savaiinaea on Friday of last week, the 21st, by telephone and I conducted a verbal review with him over about 30 to 40 minutes where I asked him a range of questions and - about his [experience] of those programs and he - it was my view that he has fully engaged in those programs and there was a clear progression.”
[Tribunal clarifications in the transcript]
[85] Transcript, 25 August 2020, page 69, lines 9 to 17, and lines 30 to 47.
The change in opinion of Dr Yoxall regarding the Applicant’s likelihood of re-offending in a domestic context, in her words, “is based on an assumption that all other things remain similar or same, and that the certificate of participation indicates genuine participation”[86]. Dr Yoxall stated that she believed the Applicant engaged in genuine participation based off her interview which she conducted on 21 August 2020, two days after her revised opinion was provided in her letter dated 19 August 2020[87].
[86] Transcript, 25 August 2020, page 69, lines 41 to 43.
[87] Exhibit A5.
There is no submitted evidence before the Tribunal from course facilitators conducting the sessions for which that the Applicant has presented participation certificates, confirming how the Applicant performed in the courses. The Tribunal agrees with the Respondent’s contention that[88]:
“Respondent: … the extent to which the conditional revisement of risk is based, it is also based, largely, on a history given by the applicant which cannot be accepted as reliable in that Dr Yoxall has no more independent evidence than the fact that there was a certificate of participation, there is no independent evidence as to how the applicant responded to participating in the courses from the course facilitators and the applicant conceded as much when that proposition was put to him. Such that there is limited confidence that can be placed in that aspect of the history of the applicant that was reported to Dr Yoxall, that he’s progressed to his understanding. And of course Dr Yoxall can’t be criticised because she can only base it on what she’s been told, what she’s only been told by the applicant.”
[88] Transcript, 25 August 2020, page 98, lines 12 to 23.
Further, in relation to the change in Dr Yoxall’s opinion, the Tribunal observes that this was conditional on the Applicant meeting a number of requirements in order to be considered a “low risk” of re-offending in terms of spousal violence. The Tribunal refers to the following exchange[89]:
[89]     Transcript, 25 August 2020, page 73, lines 26 to 46; and page 74, lines 1 to 18.
“Respondent: Just finally, if we can return to your supplementary report, please, on page 4 where you were taken to your - the first paragraph which has that last sentence where you conclude that, specifically:
If these conditions were met, I would think it more appropriate for the risk of reoffending, in terms of domestic violence, to be considered to be low.
As I read your supplementary report, when you’re referring to these conditions - ‘If these conditions were met’ - do I understand correctly that you’re referring to the two things - the two [full] categories that you identify in that paragraph and the earlier paragraph - the first one is that:
On the basis that Mr Savaiinaea has effectively engaged in the noted personal development rehabilitation
is the first one?
Dr Yoxall:      Yes, yes.
Respondent: And, secondly - so that’s sort of backwards looking - and then the second condition is effectively forward looking - and that is what you identify on the top of page 4. You said:
I would also suggest that engagement in some sort of counselling or support group/program (indistinct) to reintegrate to community and maintain these gains would also be of benefit to Mr Savaiinaea.
Are they the conditions that you’re referring to when you say specifically:
If these conditions are met?
Dr Yoxall:Yes, yes. They are, they are. There’s two parts to it. What he’s done so far, but he’ll need to do more when he goes back to the community. So, transition back to community will require support and will require external support to assist him to implement the things that he’s learnt in the realworld scenario, as opposed to the immigration detention scenario. And a system to manage and build those skills as he faces various life events that one does in the community. So he’s done those programs, he has a set of skills. That’s not sufficient for the rest of his life, and that’s not sufficient to ensure that everything - to ensure that he will stay a low risk.”
[Tribunal clarifications in the transcript]
The Tribunal heard evidence from Dr Yoxall in relation to the impact on the risk of the Applicant re-offending, if they did not engage in the recommended rehabilitation[90]:
“Respondent: What happens if - I know, I’m sorry, it’s just a hypothetical - but if the future - if we move into the future and looking at risk in the future - if he doesn’t do those things that you’ve recommended, in terms of counselling, support group - does the risk go - what happens to that sort of risk assessment in terms of moderate, high - - -?
Dr Yoxall:Well, the level that he has done has created some - yes, the level of work that he’s done has created a degree of amelioration of his level of risk. But if there were other elements that came into play, there are specific ones that could substantially increase his risk, as you would expect - there’s elements that reduce and there’s elements that increase. For him, substance abuse would elevate his risk. Substance abuse combined with some sort of development of mental illness. Now, there has been reference to depression in the past. At least that’s a - and so - depression or atypical extended, protracted grief and loss. Those types of - those are two variables, for example, that if re-experienced, together in combination and then potentially in a relationship that was not - that was fractured or dysfunctional - his risk would increase, in addition to a loss of cessation of support mechanisms that I just described to you.”
[90] Transcript, 25 August 2020, page 74, line 47; and page 75, lines 1 to 16.

The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection[119]:
“In substance this consideration is adverse to any applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and has been convicted of serious crimes.”
[Tribunal’s underlining]
[119] [2017] FCA 1466 at [76]-[77].
Justice Mortimer went further, and thought the last two sentences of paragraph 13.3 of the Direction:
“…[are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do…”
[Tribunal’s underlining]
In Afu v Minister for Home Affairs, Justice Bromwich said[120]:
“The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.”
[Tribunal’s underlining]
[120] [2018] FCA 1311 at [85].
In FYBR v Minister for Home Affairs, Justice Perry observed that[121]:
“It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...”
[Tribunal’s underlining]
[121] FYBR v Minister for Home Affairs [2019] FCA 500 paragraph 42. Note: FYBR was concerned with a visa refusal. This means the relevant paragraph relating to expectations of the Australian community was paragraph 11.3 [et seq] of the Direction. The instant case is, of course, a matter relating to the non-revocation of a mandatory cancellation decision. In those latter circumstances, the relevant paragraph is 13.3 [et seq] of the Direction. Further, “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 13.3 for non-revocation matters.
FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld FYBR, confirming Justice Perry’s reasons and approach to the expectations of the Australian Community: see FYBR v Minister for Home Affairs [2019] FCAFC 185.
Thus, the Full Court’s decision, along with the existing authorities of YNQY and Afu establish that:
(a) The ‘expectations of the Australian community’ cannot be measured or determined as if it is a provable fact. It is an assessment of community values made on behalf of that community[122].
(b) The Tribunal cannot determine for itself what such ‘expectations’ are by reference to the Applicant’s circumstances or evidence about those expectations[123].
(c)   The Government’s view in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks are the ‘expectations of the Australian community’, and the Tribunal should have due regard of that statement, if made[124].
(d) In assessing the weight attributable to Primary Consideration C, decision-makers can have regard to the principles appearing in paragraph 6.3 of the Direction, in particular sub-paragraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision-maker[125].
Analysis – Allocation of Weight to this Primary Consideration C
[122]    Afu at paragraph 85.
[123]    FYBR v Minister for Home Affairs [2019] FCA 500 paragraph 42.
[124]    FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph 74; (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[125] Ibid, paragraphs 77 (Charlesworth J) and 105 (Stewart J).
The Applicant made the following submission to the Tribunal regarding community expectations[126]:
[126] Exhibit A1, page 17, paragraph 72 and 73.
“72. In ascertaining the weight attributable to this consideration, it is submitted that the Tribunal should take into account the following factors and/or findings:
(a) the length of time between the Applicant’s arrival in Australia and date of index offending, being 12 years;
(b) Applicant has made positive contributions to the Australian community through his employment;
(c) the exclusion of the Applicant from Australia, and therefore his family, will have and will continue to have an adverse impact on his immediate family;
(d) the detriment that would be caused to the Applicant’s immediate family members, including immediate family and child; and
(e) the Applicant has a significant number of family members, friends and support network living in Australia.
73. In the premises, it is submitted that this primary consideration weighs in favour of not revoking the Applicant’s visa. However, on balance of the above factors and/or findings submit that the determinative weight is not so significant that it outweighs the other considerations, which weigh in favour of exercising the discretion to revoke the visa cancellation conferred by s 501CA(4).”
In ascertaining the weight attributable to Primary Consideration C, the Tribunal takes into account the following factors and findings:
(i)The Applicant has lived in the mainstream Australian community for the majority of his adult life, after arriving in Australia as a 20 year old[127].
(ii)The removal of the Applicant may have an adverse impact on his biological child[128].
(iii)The Applicant has made some contribution to the Australian community through his employment and has a large network of personal support from family and friends, although this is tempered by the Applicant’s violent offending (particularly that which was aimed at women)[129].
(iv)The Tribunal’s view that whilst the Applicant has demonstrated some steps towards recognising and changing their predilections causing them to offend, the level and extent of this is not sufficient for the purposes of this Tribunal being able to properly ground a positive finding about the Applicant’s level of rehabilitation.
(v)The Tribunal’s assessment that it does not have before it a conclusive independent expert opinion which states that the factors predisposing the Applicant to their offending (such as alcohol abuse and failure to control emotional regulation) have been identified, addressed and are under remedial management and control.
(vi)The Tribunal finding that there is a convincing likelihood of the Applicant re‑offending, which poses a significant risk to the Australian community. Additionally, were the Applicant to re-offend, that offending has the clear capacity to cause very serious physical and or psychological harm, indeed catastrophic harm, to a victim of the Australian community. Such a risk, in the Tribunal’s view, is not acceptable to the broader Australian community.
[127]    The Direction, paragraph 6.3(5).
[128]    The Direction, paragraph 6.3(7).
[129]    The Direction, paragraph 6.3(3) and (4).
Conclusion: Primary Consideration C
The Tribunal is of the view that the above factors, read as a whole in the context of this decision, weigh heavily in favour of not revoking the cancellation of the Applicant’s Visa. The Tribunal accordingly finds that Primary Consideration C is of a very heavy weight in favour of affirming the non-revocation decision under review.
OTHER CONSIDERATIONS
It is necessary for the Tribunal to look at the Other Considerations listed at paragraph 14 of the Direction. The Tribunal will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
Paragraph 14.1 of the Direction directs decision-makers to consider international non‑refoulement obligations. The Tribunal notes that in the Applicant’s submission that, “this matter is not relevant to the Applicant’s circumstances”[130].
[130] Exhibit A1, page 18, paragraph 74.
This Tribunal has had regard to the directions outlined in Paragraph 14.1 of the Direction and is satisfied that this Other Consideration (a) is not relevant to the determination of this application.
(b) Strength, nature and duration of ties
Paragraph 14.2 of the Direction directs decision-makers to consider the strength, nature and duration of ties to Australia, whilst reflecting the principles at 6.3. Decision-makers must have regard to how long the non-citizen has resided in Australia, including whether the non‑citizen arrived as a young child, noting that:
(i)Less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
Decision-makers are also required to have given consideration to the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non‑revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Tribunal refers to the Respondent’s submissions where the following is conceded[131]:
“48. The applicant arrived in Australia in October 2005 at the age of 20 and has lived in Australia for almost 15 years (G24/173). Less weight should be given to this consideration where he arrived as an adult and has not spent the majority of his life in Australia (paragraph 14.2(1)(a) of Direction 79). The Minister accepts that the applicant has been employed during this time, and that he has significant family and social ties to Australia (G20-23).
49. Whilst the applicant has ties to Australia which weigh somewhat in favour of revoking the cancellation, this consideration does not outweigh the relevant primary considerations which weigh heavily against the applicant.
50. The Minister accepts that the existence of those ties favour the applicant, however, submits that this consideration does not outweigh the primary considerations that weigh heavily against the applicant.”
[Bolding in the original]
[131] Exhibit R1, page 13 and 14, paragraphs 48 to 50.
The Tribunal has before it numerous letters of support from family and friends hoping for the Applicant to remain in Australia, including from the family of the victim of the Applicant’s offending, his former partner, as outlined in the earlier reasons of this decision[132]. Further, submissions before the Tribunal confirm the Applicant has been in stable employment during his time in Australia.
[132] Exhibit G1, G23, pages 142 to 172.
In applying paragraph 14.2(1)(a)(i) of the Direction, the Tribunal has not applied adverse weight against the Applicant given that he arrived in Australia as an adult at 20 years of age and the offending in November 2017 for which the Applicant was convicted of in April 2019, occurred some time after his arrival in October 2005.
The Tribunal is of the view that a slight measure of weight should be afforded to the Applicant in terms of applying paragraph 14.2(1)(a)(ii) of the Direction. The Tribunal’s reasons for this is based on his work history and community participation in this country.
In applying Paragraph 14.2(1)(b) of the Direction, the Tribunal notes that the Applicant has a biological child in Australia, and it is clear the Applicant’s biological child would be impacted by the Applicant’s removal from Australia.
The Applicant made submissions to the Tribunal that[133]:
[133] Exhibit A1, page 18, paragraphs 76 and 77.
“76. The Applicant has distinct links with Australian citizens as evidenced by the various support letters.
77. We submit that in circumstances where:
(a) both prior to engaging in the index offending, the Applicant has positively contributed to the Australian community by exhibiting a strong work ethic;
(b) all of the Applicant’s immediate family live in Australia;
(c) the effect of non-revocation on the Applicant’s immediate family in Australia, his ex-partner and child; and
(d) the Applicant resided in Australia for 12 years prior to the index offending - he had no prior criminal history, and instead, can be seen to have positively contributed to the Australian community,
this consideration should weigh strongly in favour of exercising the discretion to revoke the visa cancellation conferred by s 501CA(4).”
It is clear from the material before the Tribunal that the Applicant’s strength, nature and duration of ties to Australia are considerable.
It is the Tribunal’s view that, consistent with paragraph 14.2(1)(b) of the Direction, this Other Consideration attracts a moderate level of weight in favour of the Applicant. The Tribunal does however temper this slightly by its finding in relation to paragraph 14.2(1)(a)(i) and (ii) of the Direction.
Accordingly, while this Other Consideration (b) in paragraph 14.2 of the Direction may overall moderately weigh in favour of revocation, it is outweighed by Primary Considerations A and C, both of which weigh heavily in favour non-revocation.
(c) Impact on Australian business interests
Paragraph 14.3 of the Direction directs decision-makers to consider the impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant has submitted that this consideration is not relevant to his application before the Tribunal[134]. The Respondent has also contended this consideration is not relevant to the Applicant’s circumstances[135].
[134] Exhibit A1, page 18, paragraph 78.
[135] Exhibit R1, page 14, paragraph 51.
The Tribunal has had regard to the directions outlined in paragraph 14.3 of the Direction, and is satisfied that an impact on Australian business interests is not relevant to the factual circumstances of the Applicant.
(d) Impact on victims
Paragraph 14.4 of the Direction directs decision-makers to take into account the impact that a decision not to revoke the Applicant’s Visa would have on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
Based on the evidence before the Tribunal, it is clear there were multiple victims of the Applicant’s offending on 4 November 2017, including his former partner, friends and persons who were present on the night, in addition to attending police officers. The only statement before the Tribunal from the victims of the Applicant’s offending has been that of the Applicant’s former partner, Ms X.
The Applicant has submitted the following to the Tribunal[136]:
“80. We submit that the Applicant’s ex-partner [redacted – Ms X], who is a victim of the Applicant’s index offending, has an interest in the Reviewable Decision being set aside and the visa cancellation being revoked. It is her evidence that she would be happy and thankful if the Applicant is permitted to remain in Australia, and that she will be negatively impacted if a decision not to revoke the cancellation remains.
81. Based on [redacted – Ms X] conduct and written support it is our submission that the impact on her is that she will be negatively affected by a non-revocation outcome in the sense that:
(a) her preference is that the Applicant remains in Australia for the best interests of their daughter; and
(b) she recognizes the Applicant’s extenuating circumstances at the time of the index offending; and
(c) views the Applicant’s risk of recidivism as minimal to remote.
82. This is not a case where the victim is fearful of the Applicant or considers that he is likely to reoffend.
83. In the premises, this other consideration should weigh strongly in favour of exercising the discretion to revoke the visa cancellation conferred by s 501CA(4).”
[136] Exhibit A1, page 18, paragraphs 80 to 83.
Ms X appeared as a witness before the Tribunal and her evidence has been outlined in earlier reasons of this decision. Notably, the Tribunal refers to the following exchange where Ms X put forward her view in relation to the night of the offending in November 2017, the domestic violence she has experienced, and the Applicant’s likelihood of re-offending[137]:
[137]    Transcript, 24 August 2020, page 55, lines 18 to 47; page 56, lines 1 to 2.
“Respondent: Yes. And that actual night of 2017, would you describe your experience as a frightening one?
Ms X:            I guess, yes, I guess at the time, yes, yes.
Respondent: And I suppose, and you spoke about domestic violence coming in all forms but certainly, you would agree, that that’s an experience that you wouldn’t wish on any other woman or male to experience?
Ms X:No.
Respondent: And when you express your – the extent to which you support him now, after the passage of some time, whether as a father of your daughter or otherwise, is that effectively based on your view that the risk of him committing further violence or domestic violence is nil, that there’s no risk that he’s going to do it again, based on what you’ve heard from him?
Ms X:I think over time and let’s face it, he has faced his sentencing, he has – he’s been sentenced for what he did wrong. And in time, you know, he calls [redacted - daughter] all the time, like on weekends and they have a good chat and me and him are – we talk quite well and I believe that I don’t feel that he is – that we are of any risk now, I think he’s had the rehab, he’s had the help and just one recent conversation with him - - -
Respondent: Yes, your belief is that there’s no risk?
Ms X:            Sorry?
Respondent: Yes. That’s what I was just trying to ascend, is that your belief is that effectively, there’s no risk of him doing it again, that’s where your level of comfort is at?
Ms X:I don’t think so, no.
Respondent: Is that correct?
Ms X:             I don’t feel that he’s a risk, no.
Respondent: Because I take it that if you thought that there was even some risk that he would do it again, whether it be low – whatever, if there was a risk, he wouldn’t do it again, I take it you would be saying to the tribunal, I will do everything I can to avoid my daughter being exposed to domestic violence or a domestic violence environment, ever again, is that correct?
Ms X:Absolutely.”

The Tribunal has already found in earlier reasons of this decision that, in view of all the evidence before it, whilst the Applicant has demonstrated some steps towards recognising and seeking to change their predilections causing them to offend, the level and extent of this is not sufficient for the purposes of this Tribunal being able to properly ground a positive finding about the Applicant’s level of rehabilitation.
The Tribunal’s assessment is that it does not have before it, a conclusive independent expert opinion which states that the factors predisposing the Applicant to their offending (such as alcohol abuse and failure to control emotional regulation) have been identified, addressed and are under remedial management and control.
In reasons already outlined in this decision, and in view of all the evidence before it, the Tribunal has found that that there is a convincing likelihood of the Applicant re-offending which poses a significant risk to the Australian community. Additionally, were the Applicant to re-offend, that offending has the clear capacity to cause very serious physical and or psychological harm, indeed catastrophic harm, to a victim of the Australian community. Such a risk, in the Tribunal’s view, is not acceptable to the broader Australian community.
The Tribunal agrees with the Respondent’s contention that, “In circumstances where there is a risk that the applicant will re-offend and commit domestic violence against [redacted – Ms X], and she appears not to have fully appreciated that risk, it cannot be said this factor weighs in favour of revocation”[138].
[138] Exhibit R1, page 14, paragraph 54.
It is the Tribunal’s view that the evidence of Ms X should be treated with caution. The Tribunal is not persuaded for reasons already outlined in this decision that the Applicant has satisfactorily addressed the predilections causing him to offend, such that the Tribunal could make a positive finding about the Applicant’s level of rehabilitation. The Tribunal is not persuaded that Ms X fully appreciates the potential risk of harm from the Applicant particularly in relation to the incomplete nature of his rehabilitation, and the unacceptable risk this poses to his recidivism.
The Tribunal notes that there is no evidence as to how the other victims of the Applicant’s offending would be impacted.
In light of the abovementioned reasons, and in weighing the impact of a decision not to revoke the mandatory cancellation of the Applicant’s Visa, with the potential risk of future harm, the Tribunal finds this consideration has a neutral impact.
(e) Extent of impediments if removed
Paragraph 14.5 of the Direction directs decision-makers to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) The non-citizen’s age and health;
(b) Whether there are substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
The Applicant has made the following submission the Tribunal[139]:
“85. It is submitted that this matter is relevant in these matters as the Applicant has an absolute lack of social, practical and financial support in New Zealand. He will face a significant degree of practical, financial and emotional hardship upon a return to New Zealand, due to his separation from family and absolute lack of ties to that country.”
[139] Exhibit A1, page 19, paragraph 85.
In materials before the Tribunal the Applicant has also submitted (through his representation) that if deported back to New Zealand that his, “health is fragile without support networks in Australia and although he may be able to acquire professional support in New Zealand through government funding, holistic and lasting successful management of our client’s health issues without his supports in Australia. Our client’s health will deteriorate due to his current vulnerability and fear in an environment he is not accustomed to… our client does not have current knowledge of New Zealand and does not have social employment or health contacts in that country. If he were to be deported, he would be a substantial risk of relapse to substance use and depression”[140].
[140] Exhibit G1, G22, page 135.
The Tribunal has before it the view of deportation on the Applicant from Dr Yoxall in her report of 3 November 2019[141]:
“12. Deportation to New Zealand would be very challenging for Mr Savaiinaea primarily because it would force the separation of him and his daughter. It would also mean separation from his parents and siblings and extended family in Australia. Mr Savaiinaea doesn’t have current knowledge of New Zealand and does not have social, employment or health contacts in that country. If he were to be deported, he would be at substantial risk of relapse to substance use and depression.”
[141] Exhibit A3, page 24, paragraph 12.
The Tribunal notes that Dr Yoxall did not update her opinion in her subsequent letter of 19 August 2020[142].
[142] Exhibit A5.
With reference to the three factors within paragraph 14.5(1) of the Direction, the Applicant is currently 35 years of age and is seemingly in good health. The Tribunal notes the Applicant has not tendered any independent medical evidence that outlines any significant health concerns. The Tribunal does acknowledge that a submission has been tendered that is 10 months old from Dr Yoxall. Her opinion was given after a clinical assessment, that the Applicant was a substantial risk of relapse to substance use and depression should he be deported. The Tribunal is of the view that this would be a significant challenge for the Applicant to overcome should he be deported. However, the Tribunal tempers this finding as there is no evidence that the Applicant would not be able to access similar medical or psychological treatment if returned to New Zealand.
The Tribunal refers to the decision of Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301, where Senior Member Kelly stated the following at paragraph 101:
“New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the applicant if he returns to New Zealand... New Zealand has comparable standards of health care, social welfare and housing support to those in Australia. The applicant will have access to those services as a New Zealand citizen.”
The Tribunal is of the view that should the Applicant be deported to New Zealand he would suffer no language or other cultural barriers, given the similarities between New Zealand and Australia. Any hardships the Applicant may face with resettlement would likely be temporary, until he is able to establish himself. The Applicant is familiar with the New Zealand, as movement records indicate a number of trips have been undertaken by the Applicant, as previously outlined in these reasons[143].
[143] Exhibit G1, G24, page 173.
In balancing the available evidence before the Tribunal, the Tribunal accepts that deportation to New Zealand would not be without challenges to the Applicant, and the consequences which may arise from potential relapse resulting from substance abuse and mental health issues.
The Tribunal is of the view that paragraph 14.5 of the Direction weighs moderately in favour of revocation, however the Tribunal is of the view that the weight of this factor does not outweigh the very heavy weight the Tribunal has found for both Primary Consideration A, and Primary Consideration C.
Summary: Other Considerations
With reference to Other Considerations, the Tribunal is of the view that, to the extent that any of these Other Considerations, as outlined in paragraphs 14.1 to 14.5 of the Direction, weigh in favour of revoking the mandatory Visa Cancellation Decision, they are by far outweighed from by Primary Considerations A and C, which weigh heavily in favour of non‑revocation.
The application of the Other Considerations in matter before the Tribunal can be summarised as follows:
(a)    International non-refoulement obligations, are not engaged in relation to the Applicant.
(b)    Strength nature and duration of ties, a moderate measure of weight is attributable in favour of revocation of the mandatory Visa Cancellation Decision.
(c)    Impact on Australian business interests, is not relevant to the factual circumstances of the Applicant.
(d)    Impact on victims, is of a neutral weight.
(e)    Extent of impediments if removed, a moderate measure of weight is attributable in favour of revocation of the mandatory Visa Cancellation Decision.
(F)
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
As previously outlined in these reasons, pursuant to s501CA(4)(b) of the Migration Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s Visa:
(i)either the Applicant must be found to pass the character test; or
(ii)the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
As the Tribunal has already outlined in these reasons, the Applicant does not pass the character test.
Having regard to the Direction and to the totality of the evidence before the Tribunal, there is not another reason for the Tribunal to revoke the cancellation of the Applicant’s Visa.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Migration Act to revoke the mandatory Visa Cancellation Decision. The Tribunal has had regard to the Primary Considerations referred to in the Direction, and the Tribunal finds as follows:
(i)Primary Consideration A weighs very heavily in favour of non-revocation;
(ii)Primary Consideration C weighs very heavily in favour of non-revocation; and
(iii)Primary Consideration B weighs moderately in favour of revocation.
The Tribunal has outlined the weight attributable to the Other Considerations. The Tribunal does not consider that any of the weight the Tribunal has found in favour of revocation from the Other Considerations, even when combined with each and or when combined with Primary Consideration B, outweigh the very significant and determinative weight the Tribunal has attributed to Primary Consideration A and Primary Consideration C of the Direction.
It is the Tribunal’s opinion that a holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s Visa.
Consequently, The Tribunal cannot exercise the discretion to revoke the cancellation of the Applicant’s Visa.
DECISION
Pursuant to s43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 17 June 2020 not to revoke the mandatory cancellation of the Applicant’s
Class TY Subclass 444 Special Category (Temporary) visa.

“ANNEXURE 1 – EXHIBIT REGISTER”

Exhibit No.

   Description

G1

Section 501 G-Documents, pages 1 to 211, received 6 July 2020.

R1

Respondent’s Statement of Facts, Issues and Contentions, pages 1 to 16, received 12 August 2020.

R2

Respondent’s Tender Bundle Relevant Documents, pages 1 to 32, received 12 August 2020.

A1

Applicant’s Statement of Facts, Issues and Contentions, pages 1 to 20, received 27 July 2020.

A2

Certificates of Participation Bundle, pages 1 to 22 pages, received 27 July 2020.

(a) Certificate of Participation: Life skills, dated February 2020.

(b) Certificate of Participation: Men’s Group, dated February 2020.

(c)   Certificate of Participation: Managing Anger course (session two) on 25 February 2020, dated 9 March 2020.

(d) Certificate of Participation: Fathers workshop on 25 February 2020, dated 9 March 2020.

(e) Certificate of Participation: Managing Anger course (session three) on 10 March 2020, dated 16 March 2020.

(f) Certificate of Participation: Fathers workshop on 10 March 2020, dated 16 March 2020.

(g) Certificate of Participation: Men’s Group, dated March 2020.

(h) Certificate of Participation: Life skills, dated March 2020.

(i)   Certificate of Participation: Life skills, dated April 2020.

(j)   Certificate of Participation: Men’s Group, dated April 2020.

(k)   Certificate of Participation: Dads Connecting with Kids workshop on 5 May 2020, dated 7 May 2020.

(l)   Certificate of Participation: Managing Anger course (session four) on 5 May 2020, dated 7 May 2020.

(m)   Certificate of Participation: Life skills, dated May 2020.

(n) Certificate of Participation: Men’s Group, dated May 2020.

(o) Certificate of Participation: Managing Anger course (session five) on 26 May 2020, dated 27 May 2020.

(p) Certificate of Participation: Dads Connecting with Kids workshop on 26 May 2020, dated 27 May 2020.

(q) Certificate of Participation: Dads Connecting with Kids workshop on 9 June 2020, dated 11 June 2020.

(r)   Certificate of Participation: Managing Anger course (session six) on 9 June 2020, dated 11 June 2020.

(s)   Certificate of Participation: Life skills, dated June 2020.

(t) Certificate of Participation: Men’s Group, dated June 2020.

(u) Certificate of Participation: Dads Connecting with Kids workshop on 23 June 2020, dated 25 June 2020.

(v)    Certificate of Participation: Managing Anger course (session seven) on 23 June 2020, dated 25 June 2020.

A3

Psychologist Report of Dr Jacqui Yoxall, pages 1 to 32, received 19 August 2020.

A4

Statement of Ms X, pages 1 to 2, received 19 August 2020.

A5

Supplementary Letter of Dr Jacqui Yoxall, pages 1 to 4, received 19 August 2020.

A6

Temporary Protection Order, pages 1 to 2, received 19 August 2020.

A7

Protection Order, pages 1 to 2, received 19 August 2020.

A8

Further Certificates of Participation and Completion Bundle, pages 1 to 5, received 19 August 2020.

(a)Certificate of Completion: 10 sessions of Dads Connecting with Kids course on 4 August 2020, dated 10 August 2020.

(b)Certificate of Participation: Dads Connecting with Kids workshop on 4 August 2020, dated 6 August 2020.

(c) Certificate of Participation: Managing Anger course (session 10) on 4 August 2020, dated 6 August 2020.

(d)Certificate of Completion: 10 sessions of Managing Anger course on 4 August 2020, dated 10 August 2020.

Certificate of Participation: Managing Anger course (session nine) on 21 July 2020, dated 30 July 2020.

A9

Statement of the Applicant, pages 1 to 9, received 19 August 2020.

I certify that the preceding 243 (two hundred and forty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member B.Pola

..............................[SGD]........................................
Associate
Dated: 10 September 2020

Date of hearing:

24 and 25 August 2020

Applicant:

Mr Eric Savaiinaea

Appeared via videolink

Solicitor for the Applicant:

Ms Jennifer Samuta (Solicitor)

Samuta McComber Lawyers

Appeared via videolink

Solicitor for the Respondent:

Mr Matthew Hawker (Solicitor)

Sparke Helmore Lawyers

Appeared via videolink

Exhibit No.	Description
G1	Section 501 G-Documents, pages 1 to 211, received 6 July 2020.
R1	Respondent’s Statement of Facts, Issues and Contentions, pages 1 to 16, received 12 August 2020.
R2	Respondent’s Tender Bundle Relevant Documents, pages 1 to 32, received 12 August 2020.
A1	Applicant’s Statement of Facts, Issues and Contentions, pages 1 to 20, received 27 July 2020.
A2	Certificates of Participation Bundle, pages 1 to 22 pages, received 27 July 2020. (a) Certificate of Participation: Life skills, dated February 2020. (b) Certificate of Participation: Men’s Group, dated February 2020. (c) Certificate of Participation: Managing Anger course (session two) on 25 February 2020, dated 9 March 2020. (d) Certificate of Participation: Fathers workshop on 25 February 2020, dated 9 March 2020. (e) Certificate of Participation: Managing Anger course (session three) on 10 March 2020, dated 16 March 2020. (f) Certificate of Participation: Fathers workshop on 10 March 2020, dated 16 March 2020. (g) Certificate of Participation: Men’s Group, dated March 2020. (h) Certificate of Participation: Life skills, dated March 2020. (i) Certificate of Participation: Life skills, dated April 2020. (j) Certificate of Participation: Men’s Group, dated April 2020. (k) Certificate of Participation: Dads Connecting with Kids workshop on 5 May 2020, dated 7 May 2020. (l) Certificate of Participation: Managing Anger course (session four) on 5 May 2020, dated 7 May 2020. (m) Certificate of Participation: Life skills, dated May 2020. (n) Certificate of Participation: Men’s Group, dated May 2020. (o) Certificate of Participation: Managing Anger course (session five) on 26 May 2020, dated 27 May 2020. (p) Certificate of Participation: Dads Connecting with Kids workshop on 26 May 2020, dated 27 May 2020. (q) Certificate of Participation: Dads Connecting with Kids workshop on 9 June 2020, dated 11 June 2020. (r) Certificate of Participation: Managing Anger course (session six) on 9 June 2020, dated 11 June 2020. (s) Certificate of Participation: Life skills, dated June 2020. (t) Certificate of Participation: Men’s Group, dated June 2020. (u) Certificate of Participation: Dads Connecting with Kids workshop on 23 June 2020, dated 25 June 2020. (v) Certificate of Participation: Managing Anger course (session seven) on 23 June 2020, dated 25 June 2020.
A3	Psychologist Report of Dr Jacqui Yoxall, pages 1 to 32, received 19 August 2020.
A4	Statement of Ms X, pages 1 to 2, received 19 August 2020.
A5	Supplementary Letter of Dr Jacqui Yoxall, pages 1 to 4, received 19 August 2020.
A6	Temporary Protection Order, pages 1 to 2, received 19 August 2020.
A7	Protection Order, pages 1 to 2, received 19 August 2020.
A8	Further Certificates of Participation and Completion Bundle, pages 1 to 5, received 19 August 2020. (a)Certificate of Completion: 10 sessions of Dads Connecting with Kids course on 4 August 2020, dated 10 August 2020. (b)Certificate of Participation: Dads Connecting with Kids workshop on 4 August 2020, dated 6 August 2020. (c) Certificate of Participation: Managing Anger course (session 10) on 4 August 2020, dated 6 August 2020. (d)Certificate of Completion: 10 sessions of Managing Anger course on 4 August 2020, dated 10 August 2020. Certificate of Participation: Managing Anger course (session nine) on 21 July 2020, dated 30 July 2020.
A9	Statement of the Applicant, pages 1 to 9, received 19 August 2020.

Date of hearing:	24 and 25 August 2020
Applicant:	Mr Eric Savaiinaea Appeared via videolink
Solicitor for the Applicant:	Ms Jennifer Samuta (Solicitor) Samuta McComber Lawyers Appeared via videolink
Solicitor for the Respondent:	Mr Matthew Hawker (Solicitor) Sparke Helmore Lawyers Appeared via videolink