Thang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Thang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 3933 (22 November 2022)
Division:GENERAL DIVISION
File Number: 2022/7357
Re:Pau Khat Thang
APPLICANT

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

Decision
Tribunal:Senior Member Theodore Tavoularis
Date:22 November 2022
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 30 August 2022 to not revoke the mandatory cancellation of the Applicant’s visa.
......................................................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Global Special Humanitarian (Class XB) (Subclass 202) 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. 90 – decision under review affirmed
Legislation
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Family Law Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Cases
FYBR v Minister for Home Affairs (2019) 272 FCR 454
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Jagroop and Minister for Immigration and Border Protection (2016) 241 FCR 461
Minister for Home Affairs v Omar (2019) 272 FCR 589
PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
Plaintiff M1 v Minister for Home Affairs (2022) 400 ALR 417
S270/2019 v Minister for Immigration and Border Protection (2020) 383 ALR 194
Secondary Materials
Direction No. 79- Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (28 February 2019)
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)
Table of Contents
Decision
Reasons for Decision
Introduction and Background
Legislative Framework
Primary Consideration 1 – Protection of the Australian community
Primary Consideration 2: Family Violence
Primary Consideration 3: The best interests of minor children in Australia
Primary consideration 4: Expectations of the Australian community
Other Considerations
Conclusion
Decision
REASONS FOR DECISION
Senior Member Theodore Tavoularis
22 November 2022
introduction and Background

Pau Khat Thang (‘the Applicant’) is a 45-year-old citizen of Myanmar. He arrived in Australia on 5 April 2016.[1] He did so as the holder of a Global Special Humanitarian (Class XB) (Subclass 202) visa (‘the visa’).[2] He has never departed Australia since his arrival.
[1] G27,407.
[2] Ibid.
He has compiled a history of criminal offending in this country. He has committed 14 offences that have been dealt with at four separate sentencing episodes.[3] The criminal history, in sentencing terms, commenced on 13 May 2019 and concluded on 9 June 2020.[4] This offending has adversely impacted the Applicant’s visa status to remain in Australia.
[3] G4, 33-34.
[4] Ibid.
On 22 July 2020, he was notified that his visa had been cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’). For certain procedural reasons,[5] the Applicant was re-notified of the cancellation of his visa pursuant to s 501(3A) of the Act. This re-notification occurred on 3 December 2021. On 20 December 2021 the Applicant made representations to the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’ or ‘the Respondent’) requesting revocation of the mandatory cancellation decision.
[5] See R2, 2[6].
A delegate of the Minister, by decision dated 30 August 2022,[6] refused to revoke the mandatory cancellation decision. This refusal to revoke decision was made pursuant to

s 501CA(4) the of the Act. There followed the filing of the instant application in this Tribunal on 8 September 2022.
[6] G3,9.
The Hearing of the instant Application proceeded before me on 10 November 2022. Both parties were legally represented and the Applicant’s evidence was received with the assistance of a duly qualified and accredited interpreter. The Hearing received both oral and written evidence. The written evidence was reduced to an agreed Exhibit List, a copy of which is attached to these reasons marked as Annexure A. The sole oral witness was the Applicant.
legislative framework
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4 The Minister may revoke the original decision if:
the person makes representations in accordance with the invitation; and
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.
The Applicant did make the representations required by s 501CA(4)(a) of the Act.[7] Thus, the remaining issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised.
[7] G9, 47-66.
Prior to determining whether the relevant discretion can be exercised, it is first necessary to determine whether the Applicant passes the character test. The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have a, ‘substantial criminal record’. This phrase, in turn, is defined in s 501(7), which relevantly provides that a person will have a substantial criminal record if:
‘…
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
…’
The parties are ad idem that the Applicant does not pass the character test.[8] Therefore, the Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[8] G9, 55[35]; R2, 5[18].
The remaining issue is whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction’ or ‘Direction 90’) has application.[9]
[9] Direction 90 commenced on 15 April 2021. It replaces Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that: ‘Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.’[10] Those principals relevantly comprise:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement frameworks, and will not cause or threaten harm to individuals or the Australia community.
2Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
5Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
[10] Direction 90, para [6]. See also Direction, para [4(1)] which provides that a, “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
The Primary and Other Considerations
Paragraphs 8 and 9 of the Direction respectively stipulate four ‘Primary Considerations’, and four ‘Other Considerations’ by which I must be guided in making my decision.
The Primary Considerations I must take into account are:
‘(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.’[11]
[11] Direction 90, [8].
The Other Considerations which, where relevant, I must take into account, ‘include but are not limited to’:
‘a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests’[12]
[12] Ibid, [9(1)].
Paragraph 7 of the Direction also provides guidance as to how to take into account each Primary and Other Consideration. Briefly summarised, the Direction instructs decision-makers that:
(1) In applying the considerations (both primary and other), information from independent and authoritative sources should be given appropriate weight;
(2) Primary considerations should generally be given greater weight than other considerations; and
(3) One or more primary considerations may outweigh other Primary Considerations.
I will now turn to addressing the abovementioned Primary and Other Considerations.
primary consideration 1 – protection of the australian community
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by
non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they 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 the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(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.
I will consider each in turn.
The nature and seriousness of the non-citizen’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)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;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
Overview of the Applicant’s offending
The Applicant has convictions for offending that squarely engage the auspices of paragraph 8.1.1(1)(a) of the Direction. He has committed violent crimes against a woman in the circumstances of a domestic relationship. On 9 June 2020 the Applicant was convicted and sentenced to a head custodial term of two years for choking, suffocation, strangulation, domestic relationship – domestic violence offence.[13] The offence was actually committed some 18 months earlier on 13 December 2018.
[13] G4, 33.
On the morning of 13 December 2018, the Applicant’s offending occurred in the context of a domestic dispute between the Applicant and is then-spouse. The conduct involved him violently interfering with her by grabbing her around her throat and squeezing her throat for a few seconds causing her to not be able to breathe during that time. The Applicant threatened to kill her and upon physically releasing her delivered a physical push to her chest.
The victim sought to call the police and the Applicant, in turn, deliberately sought to prevent her making that call by destroying the two telephones in the house via which she could have used to contact the police. She repeatedly told him to leave the house and this was met by him delivering a further physical push to her chest.
The morning offending was followed by further offending on the afternoon of 13 December 2018. The Applicant returned to the house where the victim was located and began loudly banging on the front door loudly saying to her ‘open the door, otherwise I’ll kick it open. Open the door or I will kill you.’
This conduct saw the Applicant convicted for three specific offences comprising:
·choking, suffocation, strangulation, domestic relationship – domestic violence offence for which he received a head custodial term of two years;
·common assault – domestic violence offence (two charges) for which he received a custodial term of three months; and
·wilful damage – domestic violence offence for which he received a custodial term of two months.
The learned sentencing judge (His Honour Judge Farr SC DCJ) ordered that the three custodial terms be served concurrently and that the Applicant be eligible for release on parole on 17 December 2020. Notably, Judge Farr was of the view that the Applicant’s
‘…behaviour was, no doubt, frightening for the complainant and potentially very serious. There is no doubt that general and personal deterrence are significant considerations on sentence. The complainant suffered, fortunately for her and, therefore, for you, relatively minor injuries. By the gravamen of the offence of strangulation is the potential for serious injury, rather than causing of actual injury.’[14]
[14] G6, 38[41]-[46].
I am therefore satisfied that the Applicant’s conduct falls within the auspices of 8.1.1(1)(a) of the Direction and, as such, is viewed very seriously by the Australian Government and the Australian community.
There is no suggestion in the material that the Applicant has committed offences in the realms of paragraphs 8.1.1(1)(b)(i) or (ii) of the Direction and neither of those provisions are relevant. With specific reference to 8.1.1(1)(b)(iii) it should be noted that neither party made any contention about this paragraph. In those circumstances, I will conclude it is not relevant to any assessment of the nature and seriousness of the Applicant’s conduct.
A similar conclusion can be reached with reference to 8.1.1(1)(b)(iv) of the Direction. There is nothing in the material suggestive of the Applicant’s commission of a crime while in immigration detention nor of him exhibiting conduct referrable to the balance of this particular paragraph.
Paragraph 8.1.1(1)(c) of the Direction precludes me from taking into account sentences imposed on the Applicant for: (1) any violent offending he may have committed against women;[15] (2) acts of family violence;[16] and (3) any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[17]
I am thereby precluded from taking into account the offences for which the Applicant was punished on 9 June 2020. With reference to the remaining three sentencing episodes, the Applicant received sentences for offending not excluded by this paragraph as follows:
·13 May 2019: Breach of bail - no conviction recorded, fined $200;
·26 February 2020: Breach of bail (x three); failure to appear in accordance with undertaking; no conviction recorded, probation period of 12 months imposed;
[15] Direction 90, [8.1.1(1)(a)(ii)].
[16] Ibid, [8.1.1(1)(a)(iii)].
[17] Ibid, [8.1.1(1)(b)(i)].
I have, out an abundance of caution, accepted as excluded offending for the purposes of this paragraph 8.1.1(1)(c), the following offences committed by the Applicant (by reference to each applicable sentencing episode):
·9 October 2019: contravention of domestic violence order (‘DVO’) (x two); no conviction recorded, fined $600;
·26 February 2020: contravention of DVO (x three); no conviction recorded, probation period of 12 months imposed.

The sentences that were imposed on the Applicant for his non-excluded offending were not custodial and, on any objective view, not very significant. The safest finding is to conclude that the sentences imposed on this Applicant for his offending not excluded by this sub-paragraph are not informative of the nature and seriousness of his conduct.
Paragraph 8.1.1(1)(d) requires me to determine: (1) the frequency of the Applicant’s offending; and (2) whether there is any identifiable trend of increasing seriousness in his offending. First, in terms of frequency, the Applicant has a criminal history that runs for approximately 13 months. Those 13 months saw him commit 14 offences punished at four separate sentencing episodes. On any reasonable view, this is frequent offending. On another analysis, until his incarceration (on 17 March 2020) the Applicant had been in the Australian community for approximately four years. The commission of 14 offences in four years is, to my mind, frequent offending.
Second, does the offending demonstrate a trend of increasing seriousness? I think it does. The first 10 offences committed by the Applicant essentially involve him either (1) exhibiting conduct that caused an aggrieved victim to seek and obtain a DVO; and (2) his repeated breaches of those domestically protective orders; and (3) his repeated failures to observe additional lawful requirements in the form of bail plus a requirement to appear in accordance with a given undertaking. This was the conduct dealt with at this first three sentencing episodes that occurred on 13 May 2019, 9 October 2019 and 26 February 2020.
The conduct dealt with at the sentencing episode before Judge Farr on 9 June 2020 was of a different level of seriousness involving the application of significant violent force against the person of another together with the wilful intention to damage the property owned by another. The first phase of the Applicant’s conduct is thus non-physical. The second phase is undoubtedly physical towards both the victim and the property of the victim.
I am therefore satisfied that this paragraph 8.1.1(1)(d) of the Direction militates strongly in favour of a finding that the nature of the Applicant’s criminal offending in Australia has been at least serious, more likely very serious.
Paragraph 8.1.1(1)(e) of the Direction looks for any cumulative effect(s) resulting from the Applicant’s repeated offending. First, it seems plain from the listed convictions that the Applicant has abjectly failed to develop any measure of respect for Australian lawful authority be it in the form of (1) bail requirements; (2) a DVO; or (3) a requirement to appear in accordance with a given undertaking. Second, the Applicant does not appear to have developed any measure of respect for the rights of a female spouse in the context of a domestic relationship he may be conducting with such a spouse.
Third, the Applicant’s offending has traumatized at least two separate female victims. As also noted by Judge Farr upon sentencing the Applicant in 2020, his conduct on 13 December 2018 also brought minor children into its orbit. As noted by His Honour:
‘There were children home at least on that second occasion. I infer they were home at the first occasion, given that it was 7 o’clock in the morning. These were your children with the complainant. They were aged five and three at the time. But their presence did not deter you from behaving in this way. Your behaviour was, no doubt, frightening for the complainant and potentially very dangerous.’[18]
[18] G6,38 [37]-[43].
Fourth, the Applicant’s offending has consumed more than its fair share of the community’s policing and judicial sentencing resources. At first blush, it might appear that an offending history of 14 offences may not be sufficiently lengthy such as to warrant this type of finding. But the finding is based on the nature of the offences listed in the history. The Applicant has repeatedly demonstrated conduct that has needlessly caused the authorities to react or to otherwise expend resources on dealing with this type of conduct. For example, he has repeatedly breached DVOs. He has repeatedly breached bail conditions and he has also failed to appear in accordance with a given undertaking.
When such breaches of extant orders occur, they require commensurate action from law enforcement and judicial authority. These breaches are not merely entries on a person’s criminal history. They also cause the police and the courts to take action as a consequence of those breaches. The Applicant has breached his bail conditions at least four times. He has also contravened his DVO at least five times and has once failed to appear in accordance with a given undertaking.[19] Police and/or judicial sentencing resources were needlessly expended when dealing with conduct which should have been regulated by the orders already in place against the Applicant to do or refrain from doing something.
[19] G3-G4, 33-34.
There is nothing in the evidence indicative of the Applicant’s provision of false or misleading information to the Respondent’s Department.[20] Nor is there anything in the material pointing towards the Applicant’s commission of further offences following his receipt of any formal or other warning about the impact of such further offending on his visa status to remain here.[21] Both of these provisions can be put to one side and rendered neutral for present purposes.
[20] Direction 90, [8.1.1(1)(f)].
[21] Direction 90, [8.1.1(1)(g)]
Conclusion about the nature and seriousness of the Applicant’s conduct
I have sought to apply the relevant paragraphs at paragraph 8.1.1(1) of the Direction to the evidence around the circumstances of the Applicant’s offending. Taking into account my findings in relation to each of those relevant paragraphs, I conclude (and find) that the totality of his unlawful conduct in Australia has been very serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of the Direction provides that, in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that, in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
To properly understand the nature of the harm that could be caused if the Applicant were to reoffend in the same or similar way as he has in the past, it is necessary to understand the harm his offending has caused previous victims. One need look no further than the sentencing remarks of Judge Farr made on 9 June 2020. His Honour made the following observations about the Applicant’s conduct resulting in the ‘choking, suffocation, strangulation, domestic relationship – domestic violence offence’:
‘The most serious of the charges, of course, is the strangulation charge. You committed that offence by grabbing the complainant around her throat with one hand, you squeezed her throat for a few seconds and said that you would kill her. She could not breathe for that time. You then let go and pushed her in the chest. That push constitutes count 2 on the indictment.’[22]
[22] G6, 37 [20]-[24].
Judge Farr was in little or no doubt about the nature of the harm that would result in the event of the Applicant re-committing such offending: ‘The complainant suffered, fortunately for her and, therefore, for you, relatively minor injuries. But the gravamen of the offence of strangulation is the potential for serious injury, rather than causing of actual injury.’[23] Judge Farr was also alive to how the nature of the Applicant’s offending would affect his visa status to remain here. The following quote demonstrates that it is possible to infer that His Honour may well have been of the view that the Applicant’s conduct was so serious that any risk of its repetition would be unacceptable to the Australian community:
‘You have been in Australia since 2016. You had spent 10 years in Malaysia prior to that as a refugee. And it is very likely that after you conclude the term of imprisonment, which inevitably must be imposed for offending this serious, you will be taken into immigration detention and thereafter likely deported.’[24]
[23] Ibid.
[24] Ibid, 39.
I respectfully concur with the learned sentencing Judge. The nature and seriousness of the Applicant’s offending means that the risk of harm of him re-committing offending of this type is so serious such as to be unacceptable to the Australian community. I am therefore satisfied that were this Applicant to re-commit any of his past violent offences against women, there would result physical and psychological harm to victims including, quite conceivably, catastrophic harm to those victims.
The likelihood of the non-citizen engaging in further criminal or other serious conduct (paragraph 8.1.2(2)(b))
(i) Information and evidence on the risk of the Applicant re-offending
Evidence of the Applicant
At the Hearing before me, the Applicant was legally represented and also availed himself of the services of a duly qualified and accredited interpreter for the purposes of providing his oral evidence. I feel compelled to provide my impression of the Applicant’s evidence. As was noted by clinicians in an ‘IHMS’[25] report I will review later in these Reasons dealing with recidivist risk, the Applicant presented at the Hearing with a nonchalant and almost flippant demeanour. That is not to say that he did not take the procedure seriously or that he did not observe the decorum appropriate to this procedure.
[25] International Health and Migrant Services.
Rather, the almost blasé nature of his evidence is to be found in his responses to specific questions put to him in cross-examination. His usual pattern when giving oral evidence involved him briefly accepting a proposition but then devolving into either an entirely unrelated and irrelevant narrative or otherwise purporting to explain his conduct on the basis that a given female victim was intoxicated or otherwise ‘out of control’ which caused him to have to deal with her behaviour and, in the course of so doing, he somehow committed some of the offences for which he was convicted.
This was the demeanour of his evidence when asked about issues as diverse as (1) the circumstances of a given offending episode; (2) his attitude towards woman with whom he may be or may have been in a relationship; (3) the requirement for him to comply with duly made and lawfully enforceable orders such as bail, a DVO; and (4) whatever relationship he may have with his two minor children. This demeanour inherent in the Applicant’s evidence leaves a firm impression of obfuscation and an otherwise deliberate attempt to confuse the listener about the context in which the Applicant has been convicted of doing something or when he is otherwise responding to questions of a general nature such as those about his minor children.
There is a further issue that needs to be addressed and dispelled in relation to the Applicant’s evidence. It concerns a contention put along the lines that the Applicant was apparently of unsound mind when he committed his most serious offences and that this unsoundness of mind was of sufficient magnitude such as to obviate any requirement of the Applicant to be dealt with for that offending. This apparent issue is now said to somehow impact on these proceedings. It is worth putting the submission in full as it appears in the Applicant’s Statement of Facts, Issues and Contentions (‘SFIC’):
‘We address the following arguments in the decision record with the delegates words in italics:
“Paragraph 35
I find it unlikely that an assessment of Mr THANG’s mental health was not completed by Queensland Corrections prior to his sentence nor explored by his defence.”
We have been unable to find any evidence that the legal representatives at the trial were able to take instructions from the applicant. His mental health was not addressed and he was not therefore assessed as an applicant who should be referred to the Mental Health Court. The delegate has accepted the applicant has mental health issues and that they were ‘likely present at the time of his offending.’ The applicant should have been referred to the Mental Health Court and been afforded the opportunity to be given an examination order as at this time, the applicant’s mental health had not been addressed. This would likely have created a very different outcome for the applicant.
We believe our client, as [sic]suffering a mental illness which is covered by the definition of disability in the Disability Discrimination Act, was discriminated against when he was not assessed as requiring referral to the Mental Health Court for an examination order which would have been the reasonable outcome for the applicant at the time. It is likely he would have been assessed as requiring ongoing mental health assistance and it is likely was of unsound mind when he committed the offence and would likely be considered not fit for trial.
This lack of attention to his needs has lead to the cancellation of his visa and should be considered a mitigating factor in the Minister’s assessment of whether to revoke the cancellation of the visa. We ask the Member take this into consideration in this appeal.’[26]
[26] A1, 2.
This contention must be rejected. There is no independent expert clinical opinion before the Tribunal suggestive of any deficiency in the level of the Applicant’s cognition – either at the time of his sentencing (June 2020) or now – meriting any referral of the Applicant to the ‘Mental Health Court’. The contention goes no higher than the person who drafted the Applicant’s SFIC holding a ‘belief’ that the Applicant was ‘suffering a mental illness’ at the time of his sentencing and that such a ‘belief’ should now become a mitigating factor in any assessment of the Applicant’s recidivist risk.
It is plain from the sentencing remarks that the Applicant was represented by counsel at the sentencing hearing[27] and there is nothing in Judge Farr’s sentencing remarks referring to any submissions made on behalf of the Applicant about his fitness or capacity to be sentenced in a conventional way. In the absence of any evidence from those legal representatives, I will not embark on any errand involving a review of how the Applicant was represented at his sentencing hearing. In particular, I am precluded from going behind the findings of Judge Farr in relation to the Applicant’s criminal guilt.[28] It follows that any contention urging this Tribunal to take into account the Applicant’s state of mental health at the time of this sentencing is misplaced and has no traction for instant purposes.
Written material prepared on behalf of the Applicant
[27] See G6, 39.
[28] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121 [78]-[79], [179].
At an earlier stage of this proceeding, certain submissions were prepared for and relied upon by the Applicant. At the Hearing before me, the Applicant’s representative made it clear that this material was being relied upon for the current ventilation of this matter. As best as I understood the previously-put contention, the Applicant is said to represent a low or acceptable recidivist risk because:
‘Given that Mr Thang has a serious psychiatric diagnosis of schizophrenia, he will likely meet the requirements for the National Disability Insurance Scheme (NDIS), and thus will be able to access supports available in that program. Access to NDIS is a key consideration to Mr Thang’s risk of recidivism.’[29]
[29] A1,57 [45].
The resulting contention is that participation in the NDIS will cause the Applicant’s time in the community (if released) to be ‘markedly different’ because there will be higher levels of supervision and mental health care applied to him:
‘It is important to note that Mr Thang’s psychiatric disorder was not diagnosed or treated until his entry into immigration detention, so at the time of committing the relevant criminal offences he had access to none of the above outlined supports. The situation on his release back into the community in the future would be markedly different, and his level of supervision and mental health care and services will be significantly higher.
We submit that the decreased risk of recidivism should be considered carefully in relation to this consideration.’[30]
[30] Ibid,58 [52]-[53].
This contention must be rejected for two primary reasons. First, simply because the Applicant may be eligible for placement on the NDIS does not necessarily mean this will occur. We also do not know how long it will take for his application to join the NDIS to be processed and finalized. He could very well be in the community for months or even years before any such outcome is known. Second, even if one were to speculate that he was successfully included in the NDIS, a further level of speculation is required about the extent, if any, of how the asserted levels of supervision and mental healthcare services will, if at all, positively influence the Applicant’s recidivist risk. In sum, the entirety of the contention must be rejected because of its inherently speculative nature.
(ii) Evidence of the Applicant’s rehabilitation achieved by the time of the Decision
While there is no expert report before the Tribunal on the specific issue of recidivist risk for the purposes of the present determination, the material contains a letter dated 19 February 2021 from the IHMS Metal Health Medical Director and duly qualified psychiatrist, Dr Jillian Spencer, to the Queensland Civil and Administrative Tribunal (‘QCAT’). The purpose of this correspondence was to provide an independent medical opinion to QCAT in its consideration of whether the Applicant ‘…requires a Guardian to be appointed for health, lifestyle and accommodation and legal/immigration matters.’[31]
[31] G12, 79.
In her correspondence, Dr Spencer provides a chronological history of the Applicant’s engagement with mental health support and assistance sought to be made available to him. That chronological history may be summarised thus:
·‘On 17 December 2020, [the Applicant] was seen by an IHMS General Practitioner. The GP documented: “…he had trouble understanding the patient also, tended to wander off vaguely in his speech, going off track, asking about his visa, not able to answer simple yes/no questions – quite fatuous in his demeanours and patient unaware of his inability to answer directly or clearly”… The GP noted that [the Applicant] was not able to clearly accept or decline pathology tests and so this was not ordered.’[32]
[32] Ibid, 80.
·‘On 18 December 2020, [the Applicant] was seen by an IHMS psychiatrist. He was noted to have had no previous contact with mental health services. He said: “I’m life, I’m prefect life, I’ve got vision”. He said that he dreamt of: “girlfriends and ladies”. He said that the people in prison with him were ugly and poor and engaged in fighting. He said he was not like this and said that he was “confident and perfect”’.[33]
[33] Ibid, 81.
·‘On 22 December 2020, [the Applicant] saw an IHMS GP to discuss ordering the MRI brain and blood tests…. Despite a few repeated requests he declined any testing at this time.’[34]
[34] Ibid.
·‘On 26 December 2020, [the Applicant] declined to attend a booked appointment with a mental health nurse to review his mental state.’[35]
[35] Ibid.
·‘On 27 December 2020, [the Applicant] declined to attend a booked appointment with a mental health nurse;’[36]
[36] Ibid.
·‘From 2 January 2021 onwards, [the Applicant] was noted to be non-compliant with his antipsychotic medication.’[37]
[37] Ibid.
·‘On 5 January 2021, …It was noted that his compliant [sic] with the antipsychotic had been poor.’[38]
[38] Ibid, 82.
·‘On 5 January 2021, [the Applicant] declined to attend a booked mental health nurse appointment.’[39]
[39] Ibid.
·‘On 7 January 2021, it was documented that [the Applicant] declined to take his morning medication;’[40]
·‘On 8 January 2021, [the Applicant] declined to attend a booked psychiatrist appointment.’[41]
·‘On 12 January 2021, [the Applicant] declined to go to the Royal Brisbane and Women’s Hospital (RBWH) emergency department for a mental health assessment.’[42]
·‘Between 12 and 18 January 2021, [the Applicant] was an inpatient of the RBWH adult metal health unit. …he was considered to respond rapidly to the anti-psychotic medication (Apripiprazole 10mg mane) and to be free of psychotic symptoms at the end of his admission.’[43]
·‘On 19 January 2021, [the Applicant] was seen by an IHMS GP an mental health nurse… the GP documented: “[the Applicant] remains quite thought disordered in fact. Unable to easily explain why he was sent to hospital, other than mentioning headache, that is [sic] was ok and the “doctor I’m normal so its good””’.[44]
·‘On 22 January 2021, [the Applicant] declined to attend a booked appointment with an IHMS psychiatrist. He was strongly encouraged by a Serco officer to attend the appointment but declined.’[45]
·‘On 26 January 2021, [the Applicant] was seen by an IHMS mental health nurse … towards the end of the assessment he … appeared distracted. He said he was taking the medication prescribed as he believed it was to stop the itchiness from mosquito bits. He said that he did not know about the appointment with the psychiatrist and said he didn’t think he needed to see anyone because he is very good: “I feel well, no problems”.’[46]
·‘On 29 January 2021, [the Applicant] declined to attend a booked appointment with an IHMS psychiatrist. He was encouraged to attend by declined.’[47]
·‘On 2 February 2021, [the Applicant] was seen by an IHMS mental health nurse. He was noted to have been compliant with his antipsychotic medication since his discharge from hospital.’[48]
·‘On 19 February 2021, [the Applicant] was seen by an IHMS GP. The Report By Medical and Related Health Professionals. [the Applicant] scored 20 out of 30 on a Mini Mental State Examination.’[49]
[40] Ibid.
[41] Ibid.
[42] Ibid.
[43] Ibid.
[44] Ibid.
[45] Ibid, 83.
[46] Ibid.
[47] Ibid.
[48] Ibid.
[49] Ibid.
Summary of findings around recidivist risk

The Respondent’s contention is that ‘…there remains an ongoing and unacceptable risk of the Applicant reoffending…’.[50] Based upon my following findings about recidivist risk, I respectfully endorse that submission. As will be noted from Dr Spencer’s abovementioned letter to QCAT, the state of the Applicant’s mental health remains precarious and largely unpredictable. He appears to respond well to anti-psychotic medication but, on the other hand, has a very strong history of failing to engage with mental health care providers and in otherwise following his regime of medication.
[50] R SFIC, 9 [33].
First, it surely cannot be denied that the Applicant’s mental health symptomatology remains live and unresolved. There is nothing before the Tribunal by way of any follow-up or otherwise contemporaneous independent and clinical psychological opinion about (1) the current state of the Applicant’s mental health symptomatology; (2) the extent to which those symptoms have been and remain under any sort of remedial management and control such that; (3) a reliable prognostic opinion can now be produced such as to be informative of the Applicant’s recidivist risk if returned to the community. In this sense, the Applicant’s recidivist risk can safely be found to be no different to what was at the time of his most recent removal from the Australian community.
Second, the Applicant has committed very serious and concerning acts of domestic violence against two separate domestic partners. Notably, while on bail for those two convicted acts of domestic violence, he has convictions for breaching DVOs in relation to his new domestic partner. There is clearly a risk to any future domestic partner the Applicant may acquire upon a return to the community. It cannot be denied that the Applicant does not recognise boundaries of conduct as they relate to inter-personal relations between him and women. This risk to the community has been identified in independently prepared reports, one of which has noted that:
‘Every day, 12 women are hospitalised due to domestic and family violence. Every nine days, a woman is killed by a current or former partner. The overall economic cost of violence against women and their children in 2015–16 was $26 billion, with victims and survivors bearing approximately 50 per cent of that cost.’[51]
[Internal references omitted]
[51] R3, 59: Fourth Action Plan – National Plan to Reduce Violence against Women and their Children 2010-2022.
Third, the Applicant’s criminal history demonstrates a marked and repeated pattern of failing to respect lawful authority. I have earlier referred to his multiple breaches of a DVO and bail and of his failure to appear in accordance with a given undertaking. Perhaps most significant for present purposes in terms of assessing his recidivist risk, is the reality that following his most serious offending in December 2018, he subsequently breached a DVO in relation to his new partner. I am not satisfied that there is any evidence before me to indicate that the Applicant has acquired any greater level of cognition or understanding about the necessity for him to strictly meet the requirements of lawfully made orders and directions.
Fourth, while it can be accepted that the Applicant has a diagnosis of schizophrenia and while his offending may (or may not) be attributable to his mental health symptomatology, the two significant resulting factors in terms of recidivist risk are: (1) this diagnosis was not made or treated until the Applicant was taken into immigration detention in December 2020; and (2) he has a demonstrated and concerning pattern of repeatedly failing to attend allocated appointments and in complying with his regime of medication. There is little or nothing before the Tribunal to convince me that these elements will be any less prevalent if the Applicant now returns to the community.
Fifth, it cannot be denied that the Applicant has unresolved issues with his abuse of alcohol. At the Hearing before me he accepted that: (1) he enjoys consuming alcohol often to a binge level; (2) that his enjoyment of alcohol was something his father led him to because the father (as noted by Dr Spencer) ‘…drank whisky everyday in Burma.’[52]; (3) that he has been drinking alcohol since the age of 14 years; and (4) the element of alcohol and intoxication were front and centre in virtually all of the offences he has committed to date. Of perhaps greater concern is the Applicant’s failure to understand the extent to which his abuse of alcohol has predisposed him to commit very serious offences. Dr Spencer reported that he has repeatedly told clinicians there is nothing wrong with him and that he does not need either medication or mental health support. If the Applicant does not have insight into how his difficulties with alcohol predispose him to very seriously offend, then his recidivist risk is surely no different to what it was at the time of his most recent removal from the Australian community.
[52] G12, 84.
Sixth, while the Applicant has a demonstrated pattern of failing to engage with mental healthcare appointments and medication, there is a parallel deficiency in the evidence around his participation in, and completion of, any course of rehabilitation dealing with domestically violent conduct, his capacity to manage his temperament, particularly in a domestic environment, and the abuse of alcohol. There is no reference to, for example, his participation in any ‘Alcoholics Anonymous’ meetings nor any engagement with a local medical officer who could assist him with his issues with alcohol.
Seventh, and perhaps most concerningly, is that in the event of the Applicant’s return to the community he will have alcohol much more freely available to him because he will no longer be in the closed confines of either prison or immigration detention. He made repeated reference in his oral evidence to almost immediately attending a bottle shop to purchase alcohol after receiving his Centrelink benefits. I am not satisfied the evidence goes anywhere near demonstrating that if the Applicant were returned to the community and placed on benefits, he would do anything different insofar as his capacity to refrain from alcohol consumption and abuse is concerned.
In terms of an assessment of this Applicant’s recidivist risk, I am satisfied (and I find) that there remains an unacceptable risk that he will re-offend with consequential serious physical, psychological and even catastrophic harm being occasioned to his victim(s). The state of the evidence is such that his recidivist risk cannot be defined with any certainty or reliability. His rehabilitation is, at best, a work in progress and in its formative stages. Accordingly, I am of view (and I find) that the level of his recidivist risk today is no different what it was at the time of his most recent removal from the Australian community.
Paragraph 8.1.2(2)(c)
The Direction also contains a reference to paragraph 8.1.2(2)(c). This matter does not involve a ‘refusal to grant a visa to a non-citizen’. It involves an application for the, ‘revocation’ of a decision to mandatorily cancel the Applicant’s visa. This specific paragraph is not relevant to the determination of this application.
Conclusion: Primary Consideration 1
With reference to the weight attributable to this Primary Consideration 1:
(a)I have found that the nature and seriousness of the Applicant’s conduct to date has been, ‘very serious’;
(b)I have found that were this Applicant to re-commit any of his past violent offences against women, there would result physical and psychological harm to victim(s) including, quite conceivably, catastrophic harm to those victim(s).
(c)I have assessed the Applicant’s recidivist risk of engaging in further criminal or other serious conduct (upon return to the community) as being no different now to what it was at the time of his most recent removal from the Australian community. I have reached this finding by taking into account: (1) the evidence spawning the abovementioned seven factors speaking to his recidivist risk; and (2) the absence of any current and independent clinical opinion about his recidivist risk.
I make specific reference to paragraph 8.1.2(1) of the Direction and its reference to the notion of ‘unacceptable risk’ which involves a risk that the community should not be required to tolerate regardless of other considerations. Having regard to the potential consequences of this Applicant re-committing any of his offences and the significantly incomplete state of the evidence around the likelihood of him doing so if returned to the community, I am led to find that his offending has been so serious that any risk of its recurrence is indeed unacceptable.
My analysis of the material before me leads me to a finding that this Applicant represents an unacceptable recidivist risk and that Primary Consideration 1 thereby carries a very heavy level of weight against revocation of the mandatory cancellation of his visa.
primary consideration 2: family violence
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
Paragraph 8.2 of the Direction requires two questions to be addressed: (1) who was a member of the Applicant’s family? and (2) whether any of the Applicant’s conduct against those family members amounts to family violence? I will now address each question in turn.
Who are members of the Applicant’s family?
The Applicant’s offending conduct committed on 13 December 2018 saw him charged and convicted with, inter alia, the following offences: (1) choking, suffocation, strangulation, domestic relationship – domestic violence; (2) common assault – domestic violence (2 charges); and (3) wilful damage – domestic violence offence.[53] In the Statement of Facts presented to Judge Farr, the first paragraph makes reference to the Applicant’s relationship with the victim in these terms.
‘The defendant (41) and complainant, [name redacted] (41), are husband and wife. They have two children together who were aged 5 and 3 at the time of the offending They had been married for six years, but had been separated since 2 November 2016. There was a protection order in place which required the defendant to be of good behaviour towards the complainant and their children, and not to expose the children to domestic violence.’ [54]
[53] G4, 33-34.
[54] R3,51[1].
I am satisfied that at the time the Applicant committed these offences, the victim was a member of the Applicant’s family.
The definition of family violence at paragraph 4(1) of the Direction makes a specific reference to ‘a member of the person’s family’. However, the Direction does not provide define either ‘family’ or ‘family member’. There are definitions of these terms which assist in the determination of the meaning of those terms as they appear in the Direction.
The Acts Interpretation Act 1901 (Cth) (‘AIA’) is of relevance to the interpretation of the Direction. Section 46 of the AIA provides, in substance, that unless a contrary intention appears, expressions in an instrument have the same meaning as in the Act or instrument which enables or authorises them.[55] Section 5G of the Act relevantly provides that the member of a person’s family is, ‘…taken to include […] (a) de facto partner of the person; …’.
[55] See also Jagroop and Minister for Immigration and Border Protection (2016) 241 FCR 461 at [22].
Section 4(AB) of the Family Law Act 1975 (Cth) (‘FLA’) provides as follows:
‘Definition of family violence etc.
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.’[56]
[Bold in original]
[56] Note: this definition is verbatim the definition of ‘family violence’ appearing in Direction 90 at [4(1)].
Section 4(1AB) of the FLA provides as follows:
‘For the purposes of:
…
(aa) section 4AB;
…
a person (the first person) is a member of the family of another person (the second person) if:
…
the first person is or has been married to, or in a de facto relationship with, the second person;…’
[Bold in original]
It is surely no coincidence that the definition of ‘family violence’ in the FLA is stated in identical terms to the definition of that term appearing at paragraph 4(1) of the Direction. While the Direction does not contain a definition of the term ‘family member’, the FLA certainly does. Applying the foregoing FLA provisions to the instant facts, I am of the view that for the purposes of the definition of ‘domestic violence’ in the FLA, the ‘first person’ (i.e., the victim of the Applicant’s respective assault occasioning bodily harm convictions) can be found to be a member of the family of the ‘second person’ (i.e. this Applicant) if the victim of those respective assault occasioning bodily harm convictions, ‘is or has been… in a de facto relationship with’ this Applicant. [My underlining]
Given the commonality of terminology in terms of how the FLA and Direction deal with the question of family violence, I am of the view (and I find) that the subject victim of the Applicant’s respective convictions for (1) choking, suffocation, strangulation, domestic relationship – domestic violence; (2) common assault – domestic violence (2 charges); and (3) wilful damage – domestic violence offence[57] can be found to be a member of the Applicant’s family for present purposes.
[57] G4, 33-34.
I therefore find that the victim of the Applicant’s convictions for (1) choking, suffocation, strangulation, domestic relationship – domestic violence; (2) common assault – domestic violence (2 charges); and (3) wilful damage – domestic violence offence conduct committed on 13 December 2018, was a member of his family for present purposes.
Did any of the Applicant’s conduct constitute family violence?
‘Family violence’ is defined in the Direction. It is defined as ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful.’[58] To my mind, therefore, the definition poses two separate questions:
·was the Applicant's conduct violent, threatening, or other behaviour that coerced or controlled a member of his family?
·was the Applicant's conduct violent, threatening, or other behaviour that caused a family member to be fearful?
[58] Direction 90, para [4].
I again refer to the sentencing remarks of Judge Farr made on 9 June 2020. Having regard to the findings of Judge Farr, I am of the view that the Applicant’s conduct towards the victim on 13 December 2018 was most certainly conduct that was violent, threatening and that otherwise sought to coerce and control the victim who was a member of the Applicant’s family at the time. It will be recalled that the victim desperately sought to contact police at the time of the incident and there can surely be no other finding such that the Applicant’s conduct caused that family member/victim to be fearful.
It is necessary to again refer to paragraph 8.2(2) of the Direction. I am satisfied that pursuant to paragraph 8.2(2)(a) of the Direction, the Applicant has been: (1) found guilty of an offence; and (2) has been convicted of an offence(s) involving domestic violence. I am accordingly satisfied that the Applicant’s conduct towards that family member/victim constituted violent and threatening behaviour that coerced or controlled her and otherwise caused her to be fearful.
I find that the Applicant’s conduct perpetrated on 13 December 2018 which saw him convicted for (1) choking, suffocation, strangulation, domestic relationship – domestic violence; (2) common assault – domestic violence (2 charges); and (3) wilful damage – domestic violence offence on 9 June 2020, constitutes family violence against the family member/victim for the purposes of this Direction.
Assessment of the seriousness of the Applicant’s family violence
I will now consider each of the factors in paragraph 8.2(3)(a)–(d) in turn for the purposes of assessing the nature and seriousness of the Applicant’s family violence conduct.
Sub-paragraph 8.2(3)(a) requires an analysis of the Applicant’s domestic violence conduct and/or whether there is any trend of increasing seriousness. As I have noted earlier, in my discussion for paragraph 8.1.1(1)(d), there is a discernible trend of increasing seriousness, not just in the Applicant’s overall criminal conduct but, in particular, with reference to his domestic violence conduct. He has four sentencing episodes. In the second and third of those episodes, there are convictions for five breaches of a DVO. These are breaches per se (never to be construed as ‘mere’ breaches) but those breaches do not involve a conviction for the perpetration of actual violence on a victim.
Whereas, the offending punished at the fourth sentencing episode comprising (1) choking, suffocation, strangulation, domestic relationship – domestic violence; (2) common assault – domestic violence (2 charges); and (3) wilful damage – domestic violence offence involves actual ‘hands on’ harm and damage perpetrated on both a victim and the property of that victim. Clearly then, there is a discernible trend of increasing seriousness in the Applicant’s domestic violence offending. Turning to its frequency, the Applicant has convictions for eight domestic violence-oriented offences during a sentencing period running from October 2019 to June 2020. His domestic violence conduct has been frequent – both in terms of number of offences committed and in terms of number of offences committed across a given time span. This sub-paragraph militates in favour of a finding that the Applicant’s family/domestic violence conduct has been of a very serious nature.
Sub-paragraph 8.2(3)(b) I refer again to my earlier discussion in Primary Consideration 1. Paragraph 8.1.1(1)(e) of these reasons records that the Applicant’s domestic violence conduct has spawned the following cumulative effects: (1) a demonstrated refusal to respect lawful authority represented by a lawfully made instrument such as a DVO; (2) a demonstrated failure to respect the rights of a female spouse with whom he may be, or may have been, in a domestic relationship; (3) the undeniable trauma and fear intended to be suffered by the victim – especially the victim of his offending on 13 December 2018 – as noted and recorded by Judge Farr; and (4) the Applicant’s high-handed and outrageous refusal to follow the lawful dictates of a DVO has consumed more than its fair share of the community’s policing and judicial sentencing resources. This sub-paragraph militates in favour of a finding that the Applicant’s family/domestic violence conduct has been of a very serious nature.

Sub-paragraph 8.2(3)(c) requires me to consider the rehabilitation achieved by the Applicant at the time of my decision since his last known act of family violence. This sub-paragraph requires three enquiries:
·First, sub-paragraph 8.2(3)(c)(i) looks for the extent to which the Applicant has accepted responsibility for his family violence related conduct. I am not satisfied the Applicant is remorseful and otherwise accepting of responsibility for his domestic violence conduct. I again refer to the previously discussed obfuscation and deliberately-intended confusion about the way in which he gave evidence in cross-examination, particularly with regard to his domestically violent conduct. This sub-paragraph also does not assist the Applicant;
·Second, sub-paragraph 8.2(3)(c)(ii) seeks to understand the extent to which a non-citizen understands the impact of their behaviour on the abused person. I am not satisfied that the Applicant understands the impact his behaviour has had on his victims. I again refer to his attempts to re-cast the factual milieu surrounding his domestically violent conduct. While he accepted that at least during the second of the two incidents on 13 December 2018, the two minor children were present, he had little or nothing to say by way of regret or remorse or understanding about how his conduct may have traumatized those two minor children. This sub-paragraph also does not assist the Applicant; and
·Third, sub-paragraph 8.2(3)(c)(iii) seeks to identify efforts made by a non-citizen to address the factors which contributed to their family violence conduct. One need look no further than the abovementioned correspondence of Dr Spencer to QCAT to understand the sparseness of the evidence around the Applicant’s efforts to address factors – particularly his abuse of alcohol and his psychological symptomatology – causative of his offending. This sub-paragraph also does not assist the Applicant.
Stated cumulatively, the weight and/or findings I have allocated to this sub-paragraphs 8.2(3)(c)(i), (ii) and (iii) militate in favour of a finding that the Applicant’s domestically violent conduct has been of a very serious nature.
Sub-paragraph 8.2(3)(d) requires me to look at whether the Applicant has, ‘re-offended since being formally warned, or otherwise since being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence’. The material contains references to at least three DVO documents. They comprise (1) a Protection Order made on 19 January 2017;[59] (2) a Temporary Protection Order made on 20 December 2018;[60] and (3) a Protection Order Varied Order made on 14 February 2019.[61] While not appearing in the material, these Orders attach a usual and regular explanatory document which informs the respondent (in this case the Applicant) along these lines:
‘CONTRAVENTION OF ORDER: If you contravene any conditions of this order, you commit an offence against the Act, and you may receive a penalty of up to 3 years imprisonment for the first offence in a 5 year period and 5 years imprisonment for subsequent offences within a 5 year period’
[59] G14, 87.
[60] Ibid,88. Note: this temporary Protection Order was put in place following the Applicant’s very serious conduct on 13 December 2018. It is basically a repeat of the first Order but with the addition of three more terms.
[61] R3, 49. Note: this third Order is basically a repeat of the second but extends the operative effect thereof up to and including 13 December 2023.
To repeat, while not necessarily in the material, it is reasonably safe to assume that anyone (if not all three) of these orders would have attached the usual warning. At the very least, one would expect the presiding Magistrate issuing the order to have alerted the Applicant to the consequences of a breach. While I note the probability of the Applicant receiving a warning of the type contemplated by this paragraph 8.2(3)(d), I will, out of an abundance of caution, adopt a position whereby this paragraph does not speak to the seriousness of the Applicant’s domestically violent conduct.
Conclusion: Primary Consideration 2
Having regard to the cumulative weight and/or findings I have allocated to the various components of paragraph 8.2(3)(a), (b) and (c), I am of the view (and I find) that this Primary Consideration 2 weighs very heavily against revocation of the mandatory cancellation of the Applicant’s visa.
primary consideration 3: the best interests of minor children in australia
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) of the Direction provides a list of factors to be considered in determining the best interests of minor children. Those factors relevantly comprise for present purposes:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct
Identification of the relevant minor child/children
There is consensus in the material that the Applicant has two minor biological children who are both permanent residents of Australia and that those minor children comprise: (1) [child MSV] born in October 2013, currently aged 9 years; and (2) [child TST] born in February 2015, currently aged 7 years.[62]
[62] See R1, 59; A1, 4; R2, 13 [46]; R1,80. This was also confirmed by the Applicant in his oral evidence at the hearing before me.
The parties’ respective contentions
In a document prepared and submitted on behalf of the Applicant at an earlier phase of this proceeding, the following contentions are made:
‘We accept that there are a number of factors which will make it difficult for Mr Thang to re-establish a relationship with his children, including the current protection order and his severe mental condition.
However, we submit that both Mr Thang and his children have the right to a parental-child relationship. This is unlikely to occur if the decision is made not to revoke his visa cancellation.
We therefore submit that the primary consideration of best interests of minor children weighs in favour of revoking the visa cancellation.’[63]
[63] R1, 59, [58]-[60].
In the SFIC prepared and filed on behalf of the Applicant for the instant proceeding:
‘The children have the right to a parental-child relationship and the cancellation of the visa leading to possible deportation or indefinite detention, will cause ‘direct and serious consequences’ for the children.
…
Removing a parent from the child can cause feelings of abandonment, shame, confusion and fear. A child has no real understanding why their parent has behaved in a particular way and no understanding leads to questions that may never be answered. Allowing the children to be assisted in building a safe relationship with their father would have only beneficial outcomes for the children as well as the father.’[64]
[64] A1, 4-5.
In its SFIC the Respondent ‘…accepts that it is open for the Tribunal to find that it is in the best interests of the applicant’s children that the cancellation decision should be revoked.’[65] The Respondent goes on the contend that the allocation of any weight to this primary consideration should be in the nature of ‘lesser weight’[66] after application of the factors appearing at paragraphs 8.3(4)(a),(b),(c),(d) and (f) of the Direction.
[65] R2, 13 [46].
[66] Ibid.
The Applicant’s oral evidence
This aspect of the Applicant’s oral evidence before me was perhaps the most plausible and least effected by the obfuscation and deliberately – intended confusion that infected much of the rest of his evidence. He readily acknowledged that his former spouse (and biological mother of both minor children) is and has been a good parent. He also readily accepted that (1) it is in the best interest of both minor children that they remain primarily parented by their biological mother; and (2) that he has been an absent father and must otherwise get his life in order – if released into the community – to commence re-establishing some type of parental bond with them.
He confirmed that since the time of separation between him and his former wife, the children have never lived with him. He said ‘…because of the problems I have with my wife, I would like my kids to stay with her.’ He added ‘…the kids are with her at all times, that’s a good thing – she reared them, she’s more suitable than me to look after them than me.’
Where the Applicant’s evidence again became very opaque was in relation to just how he intends to re-establish some semblance of a parental presence in the lives of his minor children. There was no clearly expressed intention to seek some type of variation to the existing DVO to facilitate a more facilitative role that he could play in their lives. At the Hearing, a contention was put on behalf of the Applicant such that he could avail himself of his right to apply to the Family Court for parenting orders relating to the two minor children. Such a contention must be received with extreme caution because (1) no such proceedings exist or otherwise seem to be in the pipeline; and (2) even if such proceedings had been issued, one has no way of knowing the Applicant’s prospects of securing any type of contact time with the children.
During his oral evidence, it was put to the Applicant that he has not seen or spoken to his two minor children since he went to jail on 17 March 2020.[67] The Applicant did not cavil with this suggestion. He went on to say that after completion of his sentence (on 17 December 2020) he was then taken into immigration detention. While in immigration detention he said that about between four to six months ago the detention authorities told him that he could contact his family by telephone. He added that he has spoken with his family, and presumably with the children, via ‘messenger/telephone’.
[67] Note: see the Criminal History at G4,33-34. While the Applicant was sentenced on 9 June 2020, he was in custody on a continuous basis on and from 17 March 2020.
He was specifically asked about whether his family has visited him since his placement into immigration detention but he said for them to do so would be ‘difficult’. He spoke of the children being at school and his wife involved in a course of study which he says has prevented them from going to see him personally. With reference to the possibility of them visiting them on a Saturday or Sunday, he responded with ‘they are unable to come’.
Application of factors in paragraph 8.3(4) of the Direction to the relevant children
Sub-paragraph (a): there is little or no durable nature in the relationship between the Applicant and his two minor children. On his own evidence, his domestic violence difficulties with his ex-wife and biological mother of the children has resulted in a reality of there being little or no existing relationship between him and the children. It is undeniable that there have been long periods of absence of him from their lives and that those periods have resulted in limited meaningful contact between him and them. This sub-paragraph (a), is at best, of slight weight in favour of a decision to restore the Applicant’s visa status to remain here.
Sub-paragraph (b): it is not very likely that the Applicant will play a positive parental role in the lives of the two minor children. This is not to say he will not play any role at all and he has, after all, something in the order of 20 years of cumulative parenting time (i.e until both children attain the age of 18 years) to re-establish some kind of parental presence and positive parental role in their lives. Based primarily on the albeit speculative contention that the Applicant has a right to approach the Family Court for parenting Orders, I will allocate a slight weight to this sub-paragraph (b) in favour of a decision to restore the Applicant’s visa status to remain in Australia.
Sub-paragraph (c): the children were present for at least the second of the two incidents involving the Applicant’s commission of domestic violence offending on 13 December 2018. One can look no further than the sentencing remarks of the learned Judge Farr who said:
‘There were children home at least on that second occasion. I infer they were home at the first occasion, given that it was 7 o’clock in the morning. These were your children with the complainant. They were aged five and three at the time. But their presence did not deter you from behaving in this way. Your behaviour was, no doubt, frightening for the complainant and potentially very dangerous.’[68]
[68] R1, 38.
I find that the Applicant’s prior domestic violence conduct did adversely impact the children and that any future conduct would likely have a negative impact on them – assuming the Applicant perpetrates such conduct while they are still minors. This sub-paragraph (c) does not assist the Applicant.
Sub-paragraph (d): we do not know the likely effect that any separation from the Applicant would have on the two minor children. In his oral evidence before me, there is reference to him contacting them (from immigration detention) via ‘messenger/telephone’. Thus, there is at least some measure of familiarity by the Applicant with the means of ‘messenger/telephone’ such as to facilitate his contact with the children ‘in other ways’ as contemplated by this sub-paragraph (d). It does not assist the Applicant;
Sub-paragraph (e): the children’s biological mother already fulfills a parental role in relation to them. Indeed, she does so with the blessing and endorsement of the Applicant, who has, for all intents and purposes, conceded that she is the parent best placed to primarily care for the children and that she is a good mother. He also conceded that it is in the children’s best interests that they remain with her for primary caring purposes. This sub-paragraph (e) does not assist the Applicant.
Sub-paragraph (f): there are no known views of the children nor is there any evidence from their biological mother suggestive or descriptive of such views. We do not know from any witness about whether the children are missing their father. There is nothing in the material by way of some kind of written affectionate note from either or both of the children to their father marking a milestone in their lives such as a birthday or first day at school. There are no photographs of the children either with the Applicant or with their mother. There is no evidence of the Applicant reaching out to the children in any way. While the children may be said to be too young to express such views, I am satisfied that this sub-paragraph (e) does not assist the Applicant.
Sub-paragraph (g): there is evidence that the children have been exposed to family violence perpetrated by this Applicant. Judge Farr sentenced him on the basis that the children were at home when the Applicant committed the second of his two violent offences on 13 December 2018. His Honour inferred that the children were also at home when the Applicant committed his first violent offending on that day ‘…given that it was 7 o’clock in the morning.’ This exposure of the children to at least one, probably two, very serious incidents of domestic violence by this Applicant militates in favour of a finding that it is not in the best interests of the children for the Applicant to receive a visa to stay here.
Sub-paragraph (h): fortunately for the Applicant, there is no evidence that either or both of the children have experienced any of the trauma types referred to in this sub-paragraph (h). I say ‘fortunately’ because the situation could have been very different if, for example, his ex-wife gave evidence about trauma currently being experienced by the children as a result of the Applicant’s domestically violent conduct or if there were some kind of independent or clinical report to that effect. In the circumstances, this sub-paragraph (h) should be rendered neutral.
Findings about the relevant minor children
I am of the view that the totality of the evidence around the Applicant’s two minor biological children points to a finding that it is in their cumulative best interests for the Applicant to remain in Australia. This finding must be significantly tempered by the balance of my findings and comments referable to the relevant sub-paragraphs at paragraph 8.3(4) of the Direction.
I therefore conclude (and find) that this Primary Consideration 3 weighs only slightly, and certainly not determinatively, in favour of revoking the decision to mandatorily cancel the Applicant’s visa.
primary consideration 4: expectations of the australian community
The Direction provides that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[69] The Direction goes on to explain:
‘This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.4(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.’[70]
[69] Direction 90 [8.4(3)].
[70] Ibid [8.4(4)]. Paragraph 8.4(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
The architecture of paragraph 8.4(1) of the Direction can, to my mind, be articulated thus:
(a)the Australian community expects non-citizens to obey Australian laws while in Australia; and
(b)as a norm, where a non-citizen has either:
·breached the expectation in the immediately preceding sub-paragraph (a); or
·there is an unacceptable risk that the non-citizen will breach the expectation in the immediately preceding sub-paragraph (a);
-then, the Australian community expects that the Australian government will not allow such a non-citizen to enter or remain in Australia.

The upshot of the Applicant’s now-claimed ethnicity as a Chin now speaks to this Other Consideration (a). The DFAT Report says the following:
‘3.38 Chin comprise around three percent of the national population. While ‘Chin’ is a recognised ethnic group, Chin people are ethnically and linguistically diverse, with at least six primary Chin tribal groups. The majority of Chin are practicing Christians.
3.39 In June 2018, UNHCR announced its decision to end the refugee status of Chin refugees from Myanmar residing in Malaysia and India. UNHCR stated the decision had been informed by political, social and security analyses of Chin State over several years, and concluded that Chin State is stable and secure for the purposes of refugee protection. Since 1 August 2018, Chin refugees have been given the option of extending their existing UNHCR identity card (without interview), which provides them UNHCR protection until 31 December 2019.’
[My emphasis and underlining]
And further, the DFAT report provides that:
‘3.42 DFAT assesses that Chin in Myanmar face a low risk of official discrimination on the basis of their ethnicity. Chin living in southern Chin State, including Paletwa and Matupi Townships, face a moderate risk of forced displacement or violence due to both outbreaks of conflict and development projects.’[93]
[My emphasis and underling]
[93] R1, 195[3.42].
As noted by the Respondent (with whom I agree), the Applicant was granted a visa as a dependant of his wife and not on the basis of his own claims about a fear of harm and persecution in Burma either as a Rohingyan or any other ethnicity.[94]
[94] R2, p 17, para [59]; see also R1, pp 89-91.
A Summary of the Applicant’s Claims
Were the Applicant a Rohingyan, there would be a conceivable possibility that he could suffer certain harm to the extent that was claimed in the original Submission lodged on his behalf.[95] However, given the Applicant’s now-claimed ethnicity as a Chin, any finding about the extent of harm he may suffer upon a return to Myanmar must be moderated. This finding can be safely reached on the above-quoted information appearing in the DFAT Report for Myanmar. It seems the Applicant’s primary reason for departing Myanmar was to avoid undertaking compulsory military service. Accordingly, the difficulties he would face upon a return to Myanmar would, in my view, fall more within the realm of impediments he would confront upon such a return as opposed to politically and ethnically derived harm that may befall him as a Chin.
[95] See generally, R1, pp 47-66. In particular see pp 60-63, paras [65]-[70] (inclusive).
Findings and allocation of weight to Other Consideration (a)
The Applicant’s now-claimed ethnicity as a Chin, as opposed to being a Rohingyan, materially changes this Tribunal’s assessment of weight allocable to this Other Consideration (a). He did not arrive here as a refugee and cannot now be found to be a refugee. If he does not succeed in this application, he will not be rendered stateless. I am therefore satisfied that this Other Consideration (a) attracts, at best, a moderate, but not determinative, level of weight in favour of a finding that the Applicant’s visa status should be restored to him.
Other Consideration (b): Extent of impediments if removed
Paragraph 9.2 of the Direction directs a decision-maker to consider the extent of any impediments 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 any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
In the original Submission filed on behalf of the Applicant, at an earlier stage of this proceeding, the following contentions appears:
‘Mental health
73. Mr Thang is currently 45 years old and suffers from schizophrenia, for which he takes oral antipsychotic medication (Aripiprazole). As stated above, Mr Thang’s schizophrenia diagnosis means that he lacks functional capacity and insight into his own condition, and has an impaired thought disorder. Mr Thang also appears to have an undiagnosed cognitive impairment.
74. As a result, Mr Thang is likely to have severe impediments in being able to subsist in any country without significant social, medical and economic supports.
Social, medical and economic supports in Myanmar
75. Mr Thang has a low level of education, no internationally recognised qualifications and has no work experience in the last 6 years. He has no savings, income or other economic supports available to him, other than what he has relied upon while living in Australia.
76. Mr Thang will require social, medical and economic supports to meet his basic mental health needs. Mr Thang will not be able to obtain such supports due to his status as a Rohingya, and due to the conditions in Myanmar. DFAT country information provides the following.
…
77. It is clear from the above that Mr Thang will not be able to cover his needs in relation to his serious psychotic mental illness.’[96]
[Internal references omitted]
[96] R1, pp 63-64, paras [73]-[77].
In the more recent SFIC prepared and filed on behalf of the Applicant, his mental health symptomatology seems to be discussed in terms that are primarily descriptive (that is, in terms of a diagnosed condition) and are also couched very much in terms of the present and how the symptomatology will likely be treated if the Applicant remains here. There does not seem to be much reference to how this condition presents as an impediment for the Applicant’s return and resettlement in Myanmar:
‘In conclusion
The applicant is likely to have been suffering from his current mental health condition for many years. Schizophrenia has the ability to appear in later life however as the applicant has lived in a refugee camp for many years he would not have had access to mental health assessment nor support nor care. He was granted the humanitarian visa and able to begin life in Australia with his family. We must take these people we offer sanctuary as they present. Mr Thang suffers from schizophrenia and had no diagnosis until he was brought to the attention of the police and only diagnosed once he was placed in detention at the cancellation of his visa. As a country we do owe an obligation to the Australian community that they are protected from harm. We also owe an obligation to a man suffering from a severe mental illness to be provided with support, care and assistance now that his condition has been diagnosed. W request the Member to consider the obligations we owe those who are suffering to be helped to recover and find meaning in their life and allow relationships to be rebuilt.’[97]
[97] A1, 5-6.
The DFAT Report makes specific reference to mental health care in Myanmar in the following terms:
‘2.21 Myanmar has two mental health hospitals, in Yangon and Mandalay, as well as mental health wards in hospitals in all 14 states and regions. Treatment is considered affordable for many, but access to and quality of services is more limited for people living outside of urban areas. Religious and cultural beliefs and social stigma surrounding mental illness reportedly prevent people from accessing professional services.’[98]
[98] R1, 177[2.21]
Sub-paragraph 9.2(1)(a): the Applicant is currently 45 years of age. He has a diagnosis of schizophrenia with impaired thought disorder. His condition is such as to have caused the Queensland Civil and Administrative Tribunal to appoint the Public Guardian to act as guardian for his ‘Immigration matters’. This appointment remains current for a period of two years.[99] While it can be accepted that the Applicant will experience some difficulty in having his mental health issues treated in Myanmar, it can be found that Myanmar is not entirely devoid of mental health care services.
[99] R1, 67.
The DFAT Report records that treatment for mental health issues is affordable for many but access to and quality of services outside of urban areas is more limited. While the standard of publicly available mental health care in Myanmar may not be at the same level as that of Australia, the Applicant will be able to access the same level of such support as is available to other citizens of Myanmar.
Sub-paragraph 9.2(1)(b): the Applicant was born in Myanmar in 1977. He lived in Myanmar until approximately the age of 30 at which time he moved to Malaysia. As noted earlier, he arrived in Australia in 2016. It is thus difficult for him to sustain any argument that he would face any substantial language or cultural barriers upon a return to Myanmar. Those language and cultural barriers are not of any great significance in this matter because (1) the Applicant lived in Myanmar until the age of 30 and thus had ample opportunity to intimately acquaint himself with the language and culture of that country; and (2) he will suffer minimal preclusion or exclusion from re-engaging into the cultural life of Myanmar due to his ethnicity as a Chin. The position would be different if he were of Rohingyan ethnicity.
Sub-paragraph 9.2(1)(c): in the original submission filed on behalf of the Applicant, we are told:
‘15. [the Applicant]’s family in Myanmar is as follows:
a. Father – deceased, passed away in 2013;
b. Mother – age 62, homemaker; and
c. Siblings – four sisters and two brothers. Mr Thang is the second eldest of the children.’[100]
[100] R1, 50[15].
The following observations can be made about this particular sub-paragraph 9.2(1)(c). First, in terms of social support potentially available to the Applicant in Myanmar, he has his mother, four sisters and two brothers residing in that country. While the extent of the social support they would extend to the Applicant upon any return to Myanmar is not presently known, there is little to cavil with the proposition that he would be able to at least seek some type of temporary shelter and refuge with one of them until such time as he re-established himself to be able to live more independently.
Second, the DFAT Report discloses the following about the likely level of medical support that will be available to the Applicant if returned to Myanmar:
‘2.18 Health outcomes are generally poor in Myanmar, and worse in rural areas. According to the World Health Organization, Myanmar has low life expectancy rates (67 years), high maternal mortality rates (200 per 100,000 live births), and high infant mortality rates (51 per 1,000 live births). Around one third of children are stunted, with the highest incidence in Rakhine State. Myanmar spends only around three per cent of GDP on healthcare, and the standard of health services is generally inadequate, even in major urban centres. Communicable diseases such as tuberculosis, malaria and HIV/AIDS are leading causes of death and illness.’[101]
[101] Ibid,176[ 2.18].
While it can be accepted that the Applicant will most likely not be able to access the same level of publicly available medical support in Myanmar to that which is available to him in Australia, he will nevertheless have access to the same level of such support as is available to other citizens of that country.
Third, in terms of economic support available to the Applicant in Myanmar, it can be noted that Myanmar is not entirely devoid of a system of social welfare. While the Applicant may or may not be able to access social welfare/Centrelink payments to the same level to which he has become accustomed in Australia, Myanmar does have a Ministry of Social Welfare, Relief & Resettlement whose online portal says the following:
‘Department of Social Welfare (DSW)
The Department of Social Welfare (DSW) is performing as focal Department in providing Social Welfare Services for those who are facing with social problems. The services such as preventing from social problems, emerging the volunteers who could be sharing and providing social services in the community, carrying out social development and providing services through social work methods are run by this Department.’[102]
[102] Ministry of Social Welfare, Relief & Resettlement (myanmar.gov.mm).
Having regard to my findings referrable to each of the three sub-paragraph components of this Other Consideration (b), I am of the view that it confers only a moderate, but not determinative, level of weight in favour of revocation of the delegate’s decision under review.
Other Consideration (c): Impact on victims
Paragraph 9.3(1) states that decision-makers must consider the impact of a s 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence adduced by the Respondent about any impact the Applicant’s continued presence in Australia would have on any of his victims. In the absence of such evidence, it would be unsafe to speculate about the extent of any impact this Applicant’s offending and his continued presence has had, or would have, on any of its victims.
I am mindful that I must have regard to evidence from any victim who speaks favourably about the Applicant remaining in Australia. As noted by Justice Kerr J in PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[103] (‘PGDX’):
‘[57] I am satisfied that nothing in CGX20 as has settled the construction to be given to cl 14.4 [the precursor to paragraph 9.3(1) of Direction 90] requires, contrary to that guidance, a victim to be heard only as to such impacts as weigh in favour of the cancellation of a visa. I reject that DKN20 requires it.
[58] It can be accepted that usually such impacts will weigh in favour of the cancellation of an offender’s visa.
[59] Usually, but not always.’[104]
[103] [2021] FCA 1235.
[104] Ibid, [57]–[59].
There is no contention, for example, from the Applicant’s ex-wife and biological mother of their children, urging the Tribunal that the Applicant remain here to assist her with parenting the children such that weight could be allocated to such a contention pursuant to PGDX.
My understanding of the material is that the parties are ad idem that this Other Consideration (c) is not relevant.[105] The correct approach is to render this Other Consideration (c) not relevant to the determination of the instant application.
[105] See the first written submission filed on behalf of the Applicant (R1, 47-66) in which there is no reference to weight allocable to this Other Consideration. This position did not change in the SFIC filed on behalf of the Applicant in the instant proceeding (see A1, 1-6); see also the Respondent’s SFIC, R2, 18[65].
Other Consideration (d): Links to the Australian Community
Paragraph 9.4 of the Direction requires that decision makers must have regard to an Applicant’s links to the Australian community.
There are two factors which I must assess in determining the level of weight allocable to Other Consideration (d). They comprise: (1) the strength, nature, and duration of ties to Australia; and (2) the impact on Australian business interests if he cannot remain here. I will now consider each in turn.
(1) Strength, nature, and duration of ties
With reference to the first part of this Other Consideration, I will consider three elements. First, it is necessary to have regard to the impact of a non-revocation decision on the Applicant’s, ‘immediate family members’ where those people have a right to remain in Australia indefinitely. Second, it is necessary to consider the impact of a non-revocation decision by taking into account the strength, nature, and duration of any other ties the Applicant has to the Australian community. Third, it is necessary to assess the strength, nature, and duration of any other family or social links the Applicant may have with people who have an indefinite right to remain in Australia. I will address each component in turn.
Impact of non-revocation on the Applicant’s immediate family
There appears to be no contest in the material that the Applicant’s immediate family in Australia comprises (1) his former wife; and (2) his two minor children. I have, of course, taken the interests of the Applicant’s two minor children into account as part of my discussion around Primary Consideration 3. There is no statement, current or historical, either supportive of or opposing the Applicant from his former wife. It is thus difficult and unsafe to allocate any measure of weight to this component of Other Consideration (d) in favour of the Applicant. I am of the view that it attracts only slight weight in favour of revocation. To the extent that it does attract such weight, I do so on the basis that the Applicant’s former wife is an Australian citizen, permanent resident and/or a person who has a right to remain in Australia indefinitely.
Strength, nature and duration of ‘other ties’ – length of residence
I will now examine the two necessary elements referable to the extent of the Applicant’s ‘other ties’ to Australia. The first element involves the question of how long he has resided in Australia, including whether he came here as a young child. As mentioned earlier, he came to Australia in 2016 as a 39-year-old. He spent about a decade in Malaysia before arriving here. He has not departed Australia since his arrival in 2016. He has lived about 13% of his life in Australia.
Next, I will examine the two tempering sub-elements in paragraph 9.2(a) of the Direction. The first of those directs me to allocate less weight if the Applicant began offending soon after arriving here. As mentioned, the Applicant came here in April 2016. He committed his first offence in Australia in December 2018 and was convicted of that offence in May 2019. The initial offending therefore occurred some two and a half years after he arrived here. Such a period of time post-arrival cannot be construed as offending that occurred ‘soon after arriving in Australia’. The first of these two tempering sub-elements should be put to one side and rendered neutral.
The second tempering sub-element requires an assessment of the extent of the Applicant’s positive contributions to the Australian community. In the first statement filed on behalf of the Applicant, there is reference to him having an employment history in Malaysia during the period 2009 to 2016. While there, he worked as a ‘Trade Assistant (electrical), Trade Assistant (carpentry), Automotive Mechanic, Storeman – KK Supermarket.’[106] The Applicant did not bring this work ethic with him to Australia. The same document tells us that ‘[the Applicant] has not worked since his arrival in Australia.’[107]
[106] R1, 50[16].
[107] Ibid, [17].
There is a Curriculum Vitae in the material in which the Applicant describes himself as a ‘…highly motivated individual, I am keen to update and utilize my skills, seek to broaden my experience and am ready to accept new work challenges, whilst maintaining flexibility.’[108] In terms of what the Applicant has done in Australia in an employment context, the Curriculum Vitae says the following:
‘2016-2017 Transitioning to Australia
Undertaking English language lessons
Actively job seeking and participating in job preparation workshops
Participating in vocational training to improve work opportunities’[109]
[Emphasis in original]
[108] R1, 400.
[109] Ibid.
The Applicant does not have a history of employment in Australia. He has not paid taxation on any earnings he has derived in this country from lawful employment. Likewise, I am not able to find anywhere in the material any mention of him making any meaningful contribution to the Australian community. Thus, while I have put the first tempering element to one side, I am hard-pressed to allocate any weight to this second tempering sub-element. Accordingly, neither of these sub-elements attract any measure of weight to this Other Consideration (d) for the purposes of revoking the mandatory cancellation of his visa.
Strength, nature and duration of ‘other ties’ – family and other social links

As best as I understood the material, the Applicant has no other family member residing in Australia such as: in-laws, cousins, grandparents, uncles/aunts. I have looked carefully through the material and cannot locate any reference to a statement, letter of support (or other equivalent) from a person(s) with whom the Applicant may be found to have a ‘social link’. I am not able to allocate any weight to this component of Other Consideration (d) in favour of revocation.
(2) Impact on Australian business interests
Paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on ‘Australian business interests’. I am of the view (and I find) that this component of Other Consideration (d) is not relevant.
Weight allocable to Other Consideration (d): links to the Australia community
Referring firstly to the first part of this Other Consideration (the strength, nature, and duration of the Applicant’s ties to Australia), I am of the view – after having analysed its three above referred- to elements that the totality of the evidence points to the allocation of only a very slight level of weight in favour of the Applicant. The second part of this Other Consideration (impact on Australian business interests) is not relevant and is rendered neutral. Overall, the Applicant’s links to the Australian community carry a very slight level of weight in favour of a finding that his visa status to remain here should be restored to him.
Further Other Consideration (e): Prolonged or Indefinite Detention
It is necessary to take into account any legal consequences arising from this decision relating to the Applicant’s visa.[110] Section 189 of the Act provides that a non-revocation result in this application will result in the Applicant’s continued detention until his removal. I have also had regard to that provision in circumstances where it requires that an unlawful citizen to be detained. A non-revocation outcome in this application could very well extend the Applicant’s time in an immigration detention facility.
[110] That is, his Global Special Humanitarian Visa, which is the subject of these proceedings.
In the event of a non-revocation decision, the likely reality will be that the Applicant will remain in immigration detention until another event ends that detention. Paragraph 9.1(3) of the Direction provides three possible alternatives to either refoulement or ongoing detention. They are:
·removal to another country; or
·the Minister exercising their personal discretion under s 195A of the Act to grant the Applicant, ‘another visa’; or
·the Minister exercising their personal discretion under s 197AB of the Act to make a residence determination enabling the Applicant to reside at a specified place in the community, subject to appropriate conditions.
While it may be found that (1) a possible net result for the Applicant is that he will be detained for a period with no chronologically fixed end point and (2) this prospect of prolonged or indefinite detention may weigh in favour of revocation, the weight attributable to this Other Consideration (e) should, in my view, be limited in the circumstances of this case.
In addition, paragraph 9.1(3) of the Direction relevantly provides that if the Applicant is able to apply for a protection visa, he would not be liable to be removed while such application is being processed and determined.[111] In the event a ‘protection finding’ were made, the Applicant would not be liable for removal unless and until any one of the following occur:
·the decision grounding the protection finding is quashed or set aside; or
·pursuant to s 197D of the Act, the Minister forms the view that the Applicant is no longer a person in respect of whom any protection finding for the purposes of s 197C(3) of the Act applies; or
·the Applicant asks the Minister, in writing, to be removed.
[111] Section 198(5A) of the Act.
Here, the Applicant has never previously held a protection visa and, as best as I understand the material, there is nothing stopping him applying for a protection visa. Given this capacity to apply for a protection visa, an adverse decision from this Tribunal in this matter will not necessarily result in his removal to Myanmar. He would be able to remain in Australia until his validly made application for a protection visa is determined.
The spectre of indefinite detention in the instant case only subsists for as long it takes for his validly application visa to be heard and determined. If successful, the Applicant will return to the community as the holder of a protection visa. If unsuccessful, he will remain in immigration detention until one of three alternatives at paragraph 9.1(3) of the Direction occur. If none of those three alternatives occur, I accept the Applicant may well remain in immigration detention without a fixed end point. This Other Consideration (e) carries a moderate, but not determinative, level weight in favour of restoring the Applicant’s visa status to remain here.
Findings: Other Considerations
I summarise the respective weights we have allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:
(a)international non-refoulement obligations: carries a moderate, but not determinative, measure of weight in favour of revocation;
(b)extent of impediments if removed: carries a moderate, but not determinative, measure of weight in favour of revocation;
(c)impact on victims: is not relevant;
(d)links to the Australian community: carries a very slight level of weight in favour of revocation; and
(e) prolonged or indefinite detention: carries a moderate, but not determinative, measure of weight in favour of revocation.
conclusion
Is there another reason to revoke the cancellation of the Applicant’s visa
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or we must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, we have had regard to the considerations referred to in the Direction. We find as follows:
·Primary Consideration 1: carries a very heavy level of weight against revocation;
·Primary Consideration 2: carries a very heavy level of weight against revocation;
·Primary Consideration 3: weighs only slightly, and certainly not determinatively, in favour of revocation;
·Primary Consideration 4: carries a very heavy level of weight, level of weight against revocation;
·I have outlined the weight attributable to the Other Considerations. I am of the view (and I find) that the combined weight I have allocated to each of Primary Consideration 1, 2 and 4 cumulatively outweigh the combined weight I have allocated to Primary Consideration 3 and Other Considerations (a), (b), (d) and the further Other Consideration (e);
A holistic view of the evidence relevant to the Primary and Other Considerations in the Direction therefore does not favour revocation of the delegate’s decision made on 30 August 2022 which refused to revoke the mandatory cancelled the Applicant’s visa.
Consequently, I find that there is not ‘another reason’ why the Respondent’s decision of 30 August 2022 should be revoked.
DECISION
194.Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 30 August 2022 to not revoke the mandatory cancellation of the Applicant’s visa.

I certify that the preceding 194 (one-hundred-and-ninety-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

..........................................................
Associate
Dated: 22 November 2022

Date of hearing:
10 November 2022

Solicitor for the Applicant:
Ms Sue Merrotsy (Director/Principal Solicitor)
SE Law

Solicitor for the Respondent: Mr Jake Kyranis (Senior Associate)
Sparke Helmore Lawyers
Annexure A
Exhibit List

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE RECEIVED

R1

Section 501 G-Documents (bookmarked G1- G31, paged 1 - 451)

Various

19 September 2022

A1

Applicant’s Statement of Facts, Issues and Contentions (paged 1- 7)

Undated

24 October 2022

R2

Respondent’s Statement of Facts, Issues and Contentions (paged 1- 19)

31 October 2022

31 October 2022

R3

Respondent’s Tender Bundle (bookmarked 1 – 4, paged 1-124)

Various

31 October 2022

[2022] AATA 3933

22 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Date of hearing:	10 November 2022
Solicitor for the Applicant:	Ms Sue Merrotsy (Director/Principal Solicitor) SE Law
Solicitor for the Respondent:	Mr Jake Kyranis (Senior Associate) Sparke Helmore Lawyers

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
R1	Section 501 G-Documents (bookmarked G1- G31, paged 1 - 451)	Various	19 September 2022
A1	Applicant’s Statement of Facts, Issues and Contentions (paged 1- 7)	Undated	24 October 2022
R2	Respondent’s Statement of Facts, Issues and Contentions (paged 1- 19)	31 October 2022	31 October 2022
R3	Respondent’s Tender Bundle (bookmarked 1 – 4, paged 1-124)	Various	31 October 2022