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

Tsang and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 3206 (31 August 2022)
Division:GENERAL DIVISION
File Number(s): 2022/4937
Re:Cheuk Kin Tsang
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member Dr Linda Kirk
Date:31 August 2022
Date of written reasons: 30 September 2022
Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 8 June 2022 that the mandatory cancellation of the Applicant’s visa not be revoked is set aside; and in substitution, the cancellation of the Applicant’s Class TU Subclass 500 Student (Temporary) visa under s 501(3A) of the Migration Act 1958 (Cth) is revoked under s 501CA(4) of the Act.
..................................[SGD]......................................
Senior Member Dr Linda Kirk
Catchwords
MIGRATION – mandatory cancellation of applicant's visa – non-revocation of cancellation by delegate – applicant has substantial criminal record – whether there is another reason to revoke the mandatory cancellation decision – Ministerial Direction No. 90 – Protection of the Australian Community – Family violence – Expectations of the Australian Community – Extent of impediments to removal – Links to the Australian Community – Decision set aside and substituted.
Legislation
Migration Act 1958 (Cth)
Cases
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461
Jal v Minister for Immigration and Border Protection [2016] AATA 789
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Home Affairs v Buadromo [2018] FCAFC 151.
Nyemah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2107
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Soames and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1955
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
XFKR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2385
ZFZM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1633
Secondary Materials
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
WRITTEN REASONS FOR DECISION
Senior Member Dr Linda Kirk
30 September 2022

Mr Cheuk Kin Tsang (‘the Applicant’) is a 28 year old citizen of Hong Kong.[1] He first arrived in Australia in January 2016 when he was aged 22 years.[2]
[1] Exhibit R1, G2, 4.
[2] Exhibit R1, G2, 162.
On 21 September 2021, the Applicant was convicted in the Central Local Court of New South Wales of two counts of Assault occasioning actual bodily harm (DV), one count of Intentionally choke etc person without consent (DV) and one count of Common assault (DV). He was sentenced to an aggregate term of 16 months’ imprisonment.[3]
[3] Exhibit R1, G2, 31-32.
On 28 September 2021 a delegate of the Minister (‘the Respondent’) decided to cancel the Applicant’s Class TU Subclass 500 Student (Temporary) visa (‘the Applicant’s visa’) under sub-s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) (‘Mandatory Visa Cancellation Decision’). The delegate was satisfied the Applicant did not pass the character test in sub-s 501(6) of the Act as he was considered to have, pursuant to sub-s 501(7)(c), a ‘substantial criminal record’.[4] The Applicant was invited to make representations to the Minister about revoking the decision to cancel the visa within 28 days. At the time, the Applicant was serving a sentence of full-time imprisonment at Mid North Coast Correctional Centre, New South Wales for an offence against a law in Australia.
[4] Exhibit R1, G2, 13.
On 26 October 2021 the Applicant made representations seeking revocation of the Mandatory Visa Cancellation Decision.[5]
[5] Exhibit R1, G2, 54, 58, 81.
On 8 June 2022, a delegate of the Respondent decided, under sub-s 501CA(4), not to revoke the Mandatory Visa Cancellation Decision (‘the Reviewable Decision’).[6]
[6] Exhibit R1, G2, 13.
On 15 June 2022, the Applicant applied to the Tribunal for review of the Reviewable Decision under sub-s 500(1)(ba) of the Act.[7]
[7] Exhibit R1, G1, 6.
The matter was heard by the Tribunal on 24 and 25 August 2022. The Applicant attended the hearing by video-link from Christmas Island Immigration Detention Centre and was represented by counsel. The following persons gave oral evidence and were cross-examined at the hearing:
- The Applicant
- Dr Thomas Dornan;
- Mr Cheuk Kit Tsang, the Applicant’s brother;
- Mr Zeshen He;
- Mr Chun Ki Lau;
- Mr Seijoo Yang;
- Ms Yuen Shan Li; and
- Ms Dai Li.
The material before the Tribunal consists of:
- Section 501G-Documents (G1- G10, pages 1-347) filed on 28 June 2022 – Exhibit R1
- Applicant’s Bundle of Evidence, filed on 28 July and 19 August 2022 – Exhibit A1
- Bundle of Material Produced under Summons (SM1, pages 1-21) filed on 19 August 2022
The Tribunal has reviewed the evidence before it and refers to all relevant materials below.
LEGISLATION
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(3A)    The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)     paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)    …; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Paragraph 501(7) of the Act relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f)the person has:
(i)     been found by a court to not be fit to plead, in relation to an offence; and
(ii)    the court has nonetheless found that on the evidence available the person committed the offence; and
(iii)    as a result, the person has been detained in a facility or institution.
Section 501CA of the Act applies if the Minister makes a decision under sub-s 501(3A) to cancel a visa that has been granted to a person.
Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under subsection 501(3A). Subsection 501CA(4) provides:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under sub-s 501CA(4) not to revoke a decision to cancel a visa.
MINISTERIAL DIRECTION NO. 90
The Minister is empowered by sub-s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. The Direction must be applied by all decision-makers, except for the Minister acting personally, such as the Minister’s delegates and the Tribunal.[8]
[8] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).
On 8 March 2021, the Minister signed Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). The Direction commenced on 15 April 2021 and revoked the previous Direction 79 on the same date.[9]
[9] Direction [2]-[3].
The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
A decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction identifies the following as primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)Whether the conduct engaged in constituted family violence;
c)The best interests of minor children in Australia; and
d)Expectations of the Australian community.
Paragraph 9 of the Direction identifies a non-exhaustive list of other considerations:
a)International non-refoulement obligations;
b)Extent of impediments if removed;
c)Impact on victims; and
d)Links to the Australian community, including:
(i)Strength, nature and duration of ties to Australia; and
(ii)Impact on Australian business interests.
Paragraph 7(1) provides that, when taking the relevant considerations into account, ‘information and evidence from independent and authoritative sources should be given appropriate weight.’
Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’ That does not preclude the Tribunal, however, based on the specific circumstances of each case, to give an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[10] Paragraph 7(3) states that ‘[o]ne or more primary considerations may outweigh other primary considerations.’ However, as Kenny and Mortimer JJ stated in their joint judgment in Jagroop v Minister for Immigration and Border Protection and Another: ‘the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501’.[11]
[10] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, [23]; [28] (Colvin J).
[11] (2016) 241 FCR 461 at [57].
ISSUES FOR DETERMINATION
Before the power in sub-s 501CA(4) of the Act to revoke the original decision is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
There is no dispute that the Applicant made the representations required by sub-s 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo[12] the Full Court of the Federal Court of Australia made the following observations in relation to sub-s 501CA(4): [13]
there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view ...
[12] [2018] FCAFC 151.
[13] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
The issues for determination are:
1)whether the Applicant passes the ‘character test’; and
2)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision should be revoked.
EVIDENCE BEFORE THE TRIBUNAL
Travel to and study in Australia
The Applicant was born in Hong Kong in October 1994.[14] In June 2014 he completed an Associate Degree of Social Sciences at the University of Hong Kong and was offered a position at Faithful Veterinary Hospital.[15]
[14] Exhibit R1, G2, 63.
[15] Exhibit R1, G2, 150.
On 28 December 2015, the Applicant was granted a subclass 573 Student visa.[16] He first entered Australia on 31 January 2016.[17]
[16] Exhibit R1, G2, 55.
[17] Exhibit R1, G2, 162.
The Applicant undertook coursework for the University of Sydney Foundation Program at Taylors College and completed this course in November 2016.[18] On 10 January 2017 he was granted a further subclass 573 student visa,[19] and he commenced the Bachelor of Veterinary Biology and Doctor of Veterinary Medicine at University of Sydney.[20] He has completed four years of this six-year degree.[21]
[18] Exhibit R1, G2, 147-148.
[19] Exhibit R1, G2, 55.
[20] Exhibit R1, G2, 81.
[21] Exhibit R1, G2, 92 at [5].
Relationship with victim
The Applicant and the victim met on the Gold Coast in January 2020 after connecting via an online dating app. The victim relocated to Sydney in November 2020 and lived with the Applicant at his apartment.[22] She commenced study at a language school and did not work.[23] The Applicant was solely responsible for all their living costs which were funded by the money his parents provided to him.[24] Their relationship was ‘dysfunctional’ and they were always arguing and fighting over little things.[25]
[22] Exhibit A1, 37; Summonsed Documents NSW Police
[23] Transcript of proceedings (Transcript), 30.
[24] Transcript, 33.
[25] Exhibit A1, 104..
These personal stressors impacted on the Applicant’s academic performance and he failed a course unit. He was concerned that he would have to repeat the second year of his course. He was studying for a replacement exam in February 2021 prior to his criminal offending.[26]
[26] Ibid.
Criminal history in Australia
The Applicant’s National Criminal History Check dated 17 December 2021 records the Applicant’s convictions in Australia.[27] On 21 September 2021 the Applicant was convicted in the Central Local Court of New South Wales of two counts of Assault occasioning actual bodily harm (DV), one count of Intentionally choke etc person without consent (DV) and one count of Common assault (DV). He was sentenced to an aggregate term of 16 months’ imprisonment.[28] Magistrate Quinn made an Apprehended Domestic Violence Order (AVO) for the protection of the victim for three years, valid until 21 September 2024.
[27] Exhibit R1, G2, 31.
[28] Exhibit R1, G2, 31-32.
The Applicant’s offending is detailed in the sentencing remarks of Magistrate Quinn dated 21 September 2021, referencing the NSW Police Facts Sheet prepared for the Court. On 5 February 2021 the victim had been speaking on the phone to a friend in Japanese, and the Applicant (who does not speak Japanese) formed the belief that they had been laughing about him. When the victim denied this, the Applicant did not believe her, and he sat astride her while holding her down and digging his fingernails into her palm, causing her considerable pain. On 7 February 2021 the victim had spoken to her mother by phone and told her that she was fearful of the Applicant and intended to leave. When she began packing her bags, he questioned her and she told him of her intentions, which led him to drag her into the bedroom by her hair. He then struck the victim repeatedly to the body, with enough force to cause bruising, and threatened to kill her. He also squeezed her neck with both hands for several seconds, to the point where she was unable to breathe.[29]
[29] Exhibit R1, G2, 48.
In her sentencing remarks, Magistrate Quinn made the following observations about the Applicant’s offending:
·Sitting on top of somebody and digging their nails into their palm while they have got them held down is an unattractive – certainly the facts in this matter are most unattractive. Dragging them by the hair into the bedroom I can only describe as most unattractive.
·Slapping them and threatening to kill the person, slapping so that they have suffered bruises and injuries to their body and then intentionally choking them albeit for a short time but intentionally choke is a very serious matter.
·Objectively I agree that the common assault is at the upper level of the low range of objective seriousness. The hair pulling is at the upper level of the mid-range as is the slapping and bruising and the choking, in my view the most serious matter, is right at the upper level of the mid-range but also probably just into the low level of the high range of objective seriousness.

During cross-examination, the Applicant was asked why he committed these offences against the victim. He stated:[30]
[At] the time I lost myself and then there was a lot of pressure and stress and also there was problem in the relationship … [A]t that time I do not know how to react, and then I react in a bad way, and then also I was taking cannabis, so it also affect[ed] my response to those events so that eventually I committed the crime that … I shouldn’t commit and then I feel really really bad … I didn’t act in my true character …
[30] Transcript, 39.
The Applicant’s evidence is that he had never been violent towards the victim, or any other person prior to the offending.[31] The victim reported to police a history of prior acts of domestic violence towards her by the Applicant.[32] The Police Fact sheet states:[33]
The victim has reported to police a number of incidents of domestic violence occurring since the beginning of the relationship which have not previously been reported to police. During these incidents the victim alleges the accused has been physically violent towards her on a number of occasions including pushing her, punching her with a closed fist, covering her mouth with a pillow and laying on top of her to prevent her moving.
[31] Exhibit R1, G2, 94.
[32] Exhibit R1, G2, 50.
[33] Exhibit R1, G2, 46.
During cross-examination, the Applicant denied that he had previously acted violently or aggressively towards the victim.[34] He agreed that he was ‘insecure’ about their relationship, and he would wait for her at her school, and question her about whether she had spoken to other males during the day.[35]
[34] Transcript, 37, 38.
[35] Transcript, 37.
There is evidence of the impact of the Applicant’s offending on the victim in the police report dated 6 April 2021.[36] It states that both the victim and police held substantial fears for her safety because the Applicant threatened to kill her if police were involved. The victim reported crying, feeling fearful and feeling depressed in response to the Applicant’s offending. When the police arrested the Applicant, they reported observing the victim to be upset, having a number of bruises to her arms and legs and a red mark on her neck.[37]
[36] Exhibit R1, G2, 45.
[37] Exhibir R1, G2, 49.
Responsibility and remorse for offending
In his statement dated 23 February 2022 the Applicant expressed his regret and remorse for his criminal offending:[38]
I reflected on my actions and deeply regretted them. I was very upset and distressed by my behaviour. I apologised to [the victim] and begged her to forgive. As a result of my actions towards her, I tried to repair my mistake and improve our relationship. She ended up moving back with her family and our relationship ended. I feel sad that it has ended this way – it was wrong of me to cause harm to her. Our separation was necessary so that we can both move on and leave this unpleasant chapter behind us.
…
I deeply understand what I did was illegal and wrong and I am truly remorseful for my actions. I did not handle my anger, stress and frustration properly and I did not assess my actions accurately during this time. I truly believe my lost (sic) of control was also impaired by the added influence of substance abuse, mentally unwell and insomnia.
I sincerely give my apology for my behaviour and I am aware of the nature of the offences. I did not want to make excuses for my mistake.
I realise that my offence is a serious one and for this I feel deeply sorry.
[38] Exhibit R1, G2, 92-93 at [13], [15], [16].
Insight into impact on victim
A NSW Corrective Services Sentencing report dated 16 September 2021 noted the Applicant’s appreciation of the impact of his offending on his victim:[39]
Without prompting [the Applicant] verbalised his perception of the impact of his behaviour on the victim. He said she is likely to have been traumatised, she may have lost trust in others, she may feel paranoid and she may have difficulty entering a new relationship, also noting her need to recover from her physical injuries.
[39] Exhibit R1, G2, 122.
Rehabilitation
At the time of the Applicant’s offending, he was smoking cannabis to help him to sleep. He has not smoked cannabis since the day he was arrested.[40]
[40] Transcript, 29.
In his statement dated 23 February 2022, the Applicant detailed the steps he has taken to rehabilitate:[41]
I have engaged in and further completed Remand Domestic Abuse and Positive Lifestyle Program while I was in custody. I have learnt how to manage my emotions, anger and ability to cope with stress. In addition, I have been attending to chaplain every week in custody.
I have counselled with psychologists and I have an individual treatment plan that I am working on, for example, counselling and medication therapies.
By attending to the above rehabilitation programs, I have learned how to manage my anger and self-help skills to address my past undesirable behaviour. I have learnt how to develop a positive attitude towards stress and problems. I crossed boundaries I should not have and I have learnt my lesson. I hope I am blessed with the opportunity to prove my good behaviour and character and prove that I can maintain the positive changes I have made in my life. I am certain that the same incident will never happen again.
I currently stay in the Villawood Immigration Detention where I can access to phone and internet. I continue to self-educate and self-manage via YouTube videos, ebook, online article in relation to anger management, self-management and drug control.
[41] Exhibit R1, G2, 94 [17]-[20].
The NSW Corrective Services Sentencing Report dated 16 September 2021 reported feedback in relation to the Applicant’s completion of the Positive Lifestyle Program that he ‘demonstrated excellent reflection.’ The Applicant reported that ‘he learned techniques for building self esteem, expressing his feelings and anger management.’[42]
[42] Exhibit R1, G2, 121.
The Applicant completed the Remand Domestic Violence program and recalled ‘learning the importance of communication to create inner stability, stay connected with family, friends and the wider community and not use withdrawing or violence as a means of managing his emotions.’[43]
[43] Exhibit R1, G2, 121-122.
Since he entered immigration detention in October 2021, the Applicant has completed a number of courses, each of which involved five hours or more of study. He provided the following certificates to the Tribunal:[44]
[44] Exhibit A1, 50-51; Certificates of Courses Completed by the Applicant filed 28 July 2022.
·Certificate of Course Completion of Drug and Alcohol Abuse 101 dated 1 May 2022
·Certificate of Course Completion of Anger Management 101 dated 13 May 2022
·Certificate of Course Completion of Stress Management dated 15 May 2022
·Certificate of Course Completion of Depression Management dated 3 July 2022
·Certificate of Course Completion of Domestic Violence 101 dated 6 July 2022
·Certificate of Course Completion of Understanding Addictions dated 10 July 2022
·Certificate of Course Completion of Emotional Intelligence dated 15 July 2022
·Certificate of Course Completion of Healthy Relationships dated 25 July 2022
·Certificate of Course Completion of Building Self-esteem dated 5 August 2022.
·Certificate of Course Completion of Conflict Resolution dated 8 August 2022
Psychological reports
Ms Susan Hawil, psychologist, conducted an assessment of the Applicant on 14 September 2021 and prepared a report dated 15 September 2021.[45] She found that the Applicant met the DSM-V criteria for Major Depressive Disorder, with anxious distress recurrent severe.[46] She assessed the Applicant a low risk of reoffending according to the Level of Service Inventory – Revised (‘LSI-R’).[47] In her opinion, there were a number of protective factors which will protect him against recidivism, namely his supportive relationship with family members, and his eagerness to complete his studies and secure employment.[48]
[45] Exhibit A1,100.
[46] Ibid, 104.
[47] Ibid, 108.
[48] Ibid.
Dr Thomas Dornan, psychologist, conducted a two-hour interview with the Applicant and prepared a report dated 11 January 2022. Based on the information provided during the assessment and as part of the psychometric testing, Dr Dornan found that the Applicant met the criteria for a diagnosis of Major Depressive Disorder, recurrent in the moderate range; and Generalised Anxiety Disorder, moderate.[49] Dr Dornan recommended a treatment plan involving the Applicant engaging with his General Practitioner for case management purposes, being referred to a psychiatrist to assess his suitability for psychotropic medication in addressing his mood and sleep regulation, and undertaking psychological treatment to address his symptoms of PTSD.[50]
[49] Exhibit R1, G2, 107 at [54].
[50] Exhibit R1, G2, 117 at [2].
Dr Dornan described the state of the Applicant’s mental health at the time he committed the offences against the victim:[51]
After meeting a woman on an online dating app, she and [the Applicant] moved in together but their relationship appears to have been affected by [the Applicant’s] mental ill-health. After three months [the Applicant] reports that he was experiencing increased symptoms of depression, anxiety and stress and was increasingly becoming irritable and angry. He also continued to struggle with both, in addition to being someone with fluctuating self-esteem and difficulties regulating his emotional state, especially irritability. [The Applicant’s] offending behaviour occurred within this context of the acute effects of mental ill-health superimposed on a long-term history of affect regulation difficulties, poor decision making and a lack of consequential thinking.
[51] Exhibit R1, G2, 113-114 at [76].
In relation to the Applicant’s acceptance of responsibility for his offending and remorse, Dr Dornan stated:[52]
[The Applicant] also impressed me as responsible at interview. He did not seek to blame the victim in any way or minimise or justify his offending behaviour. He recognises that the impact of his offending behaviour has been negative and distressing for his victim but also for salient relevant others, such as the victim’s family and friends. [The Applicant] expressed seemingly genuine and appropriate remorse for his offending behaviour, which was primarily driven by the recognition of harm for others.
[52] Exhibit R1, G2, 116 at [78.13].
Dr Dornan made the following observations about the Applicant’s insights into his offending and the treatment he has obtained for his mental health:[53]
[The Applicant] has some insight into mental ill-health and his offending. He has completed a treatment program whilst in custody and indicated a desire to participate in more, but has been unable to due to his remand status in custody and subsequent time in detention. He has also expressed a motivation to change, although he has not yet had the opportunity to do this through professional intervention, which he recognises the need for.
[53] Exhibit R1, G2, 114 at [77].
In relation to the risk of the Applicant re-offending, Dr Dornan opined:[54]
[The Applicant] appears to have found himself in a unique situation, with pressures that occurred outside the typical criminal lens. There are significant cultural issues which have impacted his offence and [the Applicant’s] responses following the offence, appear to significantly mitigate the likelihood of him repeating his behaviour or being a danger to the community. As such, the risk assessment identified [the Applicant] as a low risk of re-offending more broadly.
[54] Exhibit R1, G2, 115 at [78.10].
Dr Dornan commenced treatment with the Applicant on 19 July 2022 by way of telehealth. He saw the Applicant on a weekly basis, for five sessions in total, with each session lasting for one hour. Following a consultation with the Applicant on 17 August 2022, Dr Dornan prepared a second report.[55]
[55] Exhibit A1, 2.
In this report, Dr Dornan noted that the Applicant did not report any symptoms and could be considered to be in remission from the diagnoses he provided in his January 2022 report.[56]
[56] Ibid, 12 at [39.2].
He stated the following in relation to the Applicant’s rehabilitation prospects:[57]
[The Applicant’s] prospects of rehabilitation are positive. He has been motivated to engage in online learning programs and therapeutic intervention (with myself and a detention centre counsellor) to address his mental ill-health. Additionally, he has implemented many of the principles obtained from his courses with positive effect.
[57] Ibid, 11 at [39.1].
In Dr Dornan’s opinion, the Applicant remains a low risk of re-offending and poses a low risk to the community:[58]
[I]t is my assessment that [the Applicant] continues to pose an overall Low risk of violent recidivism specifically. [The Applicant] has made considerable progress in addressing his risks; however I note that these are as yet untested in the community, due to his detention. Based on this assessment of his risk, it does not appear that [the Applicant] poses a tangible threat to the Australian community, acknowledging his past offending behaviour.
[58] Ibid, 12 at [39.3].
At the hearing, Dr Dornan was asked whether the Applicant requires further treatment. He told the Tribunal that he does not consider the Applicant requires any regular ongoing treatment as he has addressed many of the major issues that he had identified in his January 2022 report.[59]
[59] Transcript, 21.
The Applicant had consultations with a mental health nurse and saw a counsellor on a weekly basis at Christmas Island Immigration Detention Centre in July and August 2022.[60] He has tried to get an appointment with a GP in Sydney so that he can get a referral to a psychiatrist, but he has been unable to do so because the clinics require him to attend an appointment in person.[61]
[60] Transcript, 16-17, 42.
[61] Transcript, 16, 42-43.
Risk of re-offending
The NSW Corrective Services Sentencing Report dated 16 September 2021 assessed the Applicant to be a low risk of reoffending according to the LSI-R.[62]
[62] Exhibit R1, G2, 122.
In his statement dated 23 February 2022, the Applicant explained why he will not reoffend:[63]
I know I have made serious mistakes in my life, and I feel intense regret every day after the incident, but I have now taken many substantive steps to ensure positive, healthy changes in my life and I know I will not offend again. I do not want to let my family down, particularly my parents.
[63] Exhibit R1, G2, 93 at [9].
During cross-examination, the Applicant explained that he now knows that he has to think about the consequences of whatever he does because he does not ‘want to be a reckless person anymore because it affects other people in a bad way.’[64]
[64] Transcript, 40.
Family overseas
The Applicant’s parents live in China and he speaks to them by phone every day.[65] His younger brother is a registered nurse and lives in Hong Kong. The Applicant has maintained a good relationship with his brother since childhood, and despite the distance, they remain close. His brother is aware of everything that has occurred and is highly supportive of the Applicant and has agreed to provide support as required. The Applicant speaks with his brother daily and is very appreciative of the support he receives from him.[66]
[65] Transcript, 52.
[66] Exhibit R1, G2, 99.
Friends in Australia
The Applicant stayed in touch with his friends by phone on a fortnightly or monthly basis when he was in prison.[67] Since he has been in immigration detention, he has had his own mobile phone and he can contact them more frequently by phone, text and email. He is ‘a very lucky person’ because his friends support him and want him to complete his studies.[68]
[67] Transcript, 43.
[68] Transcript, 44.
Future plans
The Applicant remains determined to achieve his ‘dream’ of becoming a veterinarian.[69] His strong preference is to complete his studies at the University of Sydney. He has two years remaining in his degree, which includes two placements.[70] The University advised the Applicant on 8 August 2022 that his request for a suspension of his course has been approved,[71] and he can resume his studies if he is released from detention. The Applicant told the Tribunal that he will not resume his studies until July 2023 as he needs to repeat a course that he failed, and this is only available in Semester 2, 2023.[72] He will complete his degree in January 2026.[73]
[69] Transcript, 49.
[70] Transcript, 45.
[71] Exhibit A1, 72.
[72] Transcript, 28.
[73] Transcript, 15, 28.
The Applicant’s evidence is that if he were to return to Hong Kong, there is only one university, the City University of Kong, at which he could undertake a veterinarian course. The University has advised the Applicant that he is unable to transfer his course credits from Australia, and he would have to start over again should he be successful in obtaining a place in the course.[74] The course was established in 2018 and it is not yet recognised by the Veterinarian Surgeons Board for registration as a veterinarian in Hong Kong.[75] In addition, there are limited options for industrial placements, and most students need to undertake their placements overseas.[76] During cross-examination, the Applicant agreed that there is a possibility that he may complete his qualifications as a veterinarian and be refused registration in Hong Kong due to his criminal record, and he will have to work in some other capacity relating to veterinary sciences or in some other completely different field.[77]
WITNESS EVIDENCE
[74] Transcript, 15-16.
[75] Transcript, 15-16, 50-51, 53.
[76] Transcript, 51.
[77] Transcript, 49-50.
Applicant’s brother
Cheuk Kit Tsang provided a character reference letter for the Applicant dated 17 September 2021 and gave oral evidence at the hearing.[78] He is the Applicant’s younger brother. He is currently working as a registered nurse in the COVID-19 surveillance ward in Hong Kong Pamela Youde Nethersole Eastern Hospital. He is aware of the Applicant’s criminal convictions and he knows that the Applicant has taken full responsibility for his actions and is deeply repentant. His family is very stressed and worried about the Applicant’s circumstances and they hope for a positive outcome.
[78] Exhibit R1, G2, 135-137.
Applicant’s friends
Dai Li provided a character reference letter for the Applicant dated 25 October 2021 and gave oral evidence at the hearing.[79] In her letter, Ms Li stated that she met the Applicant in 2017 when they were both enrolled in the Bachelor of Veterinary Science at the University of Sydney. She is aware of his criminal convictions. Despite these convictions, she believes that the Applicant has great respect for the law and does not want to repeat his past actions. She completely supports the Applicant. Ms Li told the Tribunal that since the Applicant has been in gaol and immigration detention they have stayed in contact via Facebook.[80]
[79] Exhibit R1, G2, 132.
[80] Transcript, 56.
Hiu Ying Cheung provided a character reference letter for the Applicant dated 24 October 2021 and gave oral evidence at the hearing.[81] In his letter, he stated that he first met the Applicant during their studies for the Doctor of Veterinary Medicine at the University of Sydney in February 2019. He is aware of the Applicant’s criminal convictions. He thinks the Applicant feels remorse and has reflected on his actions during his time in gaol.
[81] Exhibit R1, G2, 133.
Kwan Kei Leung provided a character reference letter for the Applicant dated 28 October 2021 and gave oral evidence at the hearing.[82] In his letter, he wrote that he first met the Applicant when they were undertaking the foundation course in Taylors College Sydney and they are both studying veterinary science at the University of Sydney. He is aware of the Applicant's criminal convictions. He believes that the Applicant regrets his offence and will not offend again. He completely supports the Applicant.
[82] Exhibit R1, G2, 134.

Yuen Shan Li provided a character reference letter for the Applicant dated 25 October 2021 and gave oral evidence at the hearing.[83] In her letter she stated that he met the Applicant in 2017 at the University of Sydney when they were studying Bachelor of Veterinary Biology and Doctor of Veterinary Medicine, however they only came to know each other in 2019. She is aware of the Applicant’s criminal convictions. Despite these convictions, she believes that the Applicant has great respect for the law and does not want to repeat his past actions. After the Applicant was released from gaol, she was not expecting him to be honest and direct about his sensitive situation. However, the Applicant explained his absence and showed her that he was remorseful for the wrong decisions he made. He was not afraid to confront his wrongdoings, and he expressed how important his family and education are to him.
[83] Exhibit R1, G2, 129.
Chun Ki Lau provided a character reference letter for the Applicant dated 22 October 2021 and gave oral evidence at the hearing.[84] In his letter, he stated that he met the Applicant at the University of Sydney while studying the degree of Bachelor of Veterinary Medicine and he has known him for three years. He is aware of his criminal convictions. He believes that the Applicant has great respect for the law and does not want to repeat his past actions because he showed him that he was remorseful for the mistakes he made. He was not afraid to admit his mistakes, and he expressed how guilty he felt for his actions. When the Applicant was released from gaol they got back in contact. The Applicant told him that he has accepted responsibility for his wrong-doing, and he wants to change the way he manages his anger and negative emotions. He completely supports the Applicant to complete his studies in Australia.
[84] Exhibit R1, G2, 130-131.
Zeshen He provided a character reference letter for the Applicant dated 22 October 2021 and gave oral evidence at the hearing.[85] In his letter, he stated that he first met the Applicant during a chemistry practical class in March 2017. They shared an apartment together for a period of six months. He is aware of the Applicant’s criminal convictions. Despite these convictions, he believes that the Applicant has great respect for the law and does not want to repeat his past actions. He has told me that he is very sorry and ashamed of what he has done. He believes that the Applicant has changed and is remorseful for his previous actions. They stayed in contact when the Applicant was in gaol and they have remained in contact while the Applicant has been in immigration detention.[86] He completely supports the Applicant.
[85] Exhibit R1, G2, 126.
[86] Transcript, 64.
Seijoo Yang provided a character reference letter for the Applicant dated 24 October 2021 and gave oral evidence at the hearing.[87] In his letter, he stated that he met the Applicant through the Doctor of Veterinary Medicine course at the University of Sydney and has known him for almost four years. He is aware of his previous criminal convictions. Despite these convictions, he believes that the Applicant has great respect for the law and does not want to repeat his past actions. He is now fully aware that his previous actions cannot be justified in any circumstances and can be punished by the law. The Applicant has pledged himself not to make same mistake again. He completely supports the Applicant.
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
[87] Exhibit R1, G2, 128.
1)Does the Applicant pass the ‘character test’?
In the representations and documents that the Applicant submitted to the Department and the Tribunal he does not dispute the information in the National Criminal History Check report dated 17 December 2021 recording his criminal conviction and sentence. It records that on 21 September 2021 the Applicant was convicted in the Central Local Court of New South Wales of two counts of Assault occasioning actual bodily harm (DV), one count of Intentionally choke etc person without consent (DV), and one count of Common assault (DV). He was sentenced to an aggregate term of 16 months’ imprisonment.[88] The Tribunal is satisfied that the Applicant has a ‘substantial criminal record’ for the purposes of paragraph 501(3A)(a) and subsection 501(6) of the Act as he has been sentenced to a term of imprisonment of 12 months or more: paragraph 501(7)(c). The Tribunal is also satisfied, for the purposes of paragraph 501(3A)(b) of the Act, that on 28 September 2021 the Applicant was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the state of New South Wales.
[88] Exhibit R1, G2, 31-32.
Having found that the Applicant does not satisfy the character test, the Tribunal finds that section 501CA(4)(b)(i) cannot be invoked to revoke the Mandatory Visa Cancellation Decision.
2)Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?
In determining whether, pursuant to subparagraph 501CA(4)(b)(ii) of the Act, there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must, in accordance with paragraphs 8 and 9 of the Direction, take into account the relevant ‘primary considerations’ and ‘other considerations’.
Primary Considerations
Primary Consideration 1 – Protection of the Australian community
Paragraph 8.1 states:
(1)When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.
In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(a) Nature and seriousness of the Applicant’s conduct to date
Paragraph 8.1.1(1) sets out factors to be considered in determining the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. Relevant to the Applicant’s conduct, the Tribunal must have regard to the following factors:
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)   …
(ii) crimes committed against vulnerable members of the community …, or government representatives or officials due to the position they hold, or in the performance of their duties.
(iii) …
(iv) …
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)   …
g)    ...
The Applicant’s criminal offending is the four offences he committed against his former partner for which he was convicted in September 2021. The Applicant concedes that his offending is very serious, and that the seriousness of his conduct is heightened because it was domestic violence. According to paragraph 8.1.1(1)(a)(i)-(iii) of the Direction, the Applicant’s offences must be viewed as very serious in circumstances where they involved crimes of a violent nature against a woman and were acts of family violence.
Having regard to paragraph 8.1.1(1)(c) of the Direction, the Tribunal finds that the aggregate term of 16 months’ imprisonment imposed on the Applicant for the four offences, is an objective indicator of the seriousness of his criminal offending. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved.[89]
[89] Jal v Minister for Immigration and Border Protection [2016] AATA 789 at [24]; PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50].
On the basis of the evidence before it, and for the stated reasons, the Tribunal finds that the Applicant’s criminal offending is very serious in nature, and this weighs against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.
(b) 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 states:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers 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 that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of the Direction provides that in assessing the risk that may be posed to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i)information and evidence on the risk of the 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 their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to reoffend in accordance with paragraph 8.1.2(2)(a) of the Direction, the Tribunal finds that the harm to individuals, particularly those who are in a personal relationship with the Applicant, should he engage in similar conduct could include extremely serious physical or psychological injury. The Applicant has demonstrated a propensity to act violently with disregard for the harm caused to his victim. The Applicant’s criminal offending has included actual and threatened physical violence against his former partner. If his previous criminal behaviour were to be repeated, this would pose a significant risk to members of the community, particularly women. The Tribunal has previously recognised the physical and psychological harm that is caused by violent behaviour in a domestic context. In XFKR and Minister for Immigration and Border Protection (Migration) (‘XFKR’),[90] the Tribunal observed at [45]:
The Tribunal would add that, in a society that adheres to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systemically intolerable. Its harms are threefold. First, it results in direct physical and psychological harm for those women against whom the violence is directed. Second, it psychologically harms the children of these women — children who, as in this instance, witness their mothers being abused, degraded and dehumanised — and sends a message to these children (male and female) that behaviour of this sort is to be tolerated. Third, it normalises those socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated.
[90] [2017] AATA 2385.
Having regard to the likelihood of the Applicant engaging in further criminal or other serious conduct in accordance with paragraph 8.1.2(2)(b) of the Direction, the Tribunal accepts the Applicant’s evidence that his offending was contributed to by the stress and anxiety he was suffering at the time as a consequence of him being under considerable pressure to perform well in his studies, and him being in a domestic relationship with his partner where she was financially dependent on him. In making this finding, the Tribunal has relied on the report of Susan Hawil, psychologist, who found that the Applicant’s ongoing relationship issues, lack of social support systems, separation from his family, financial pressures, and significant academic stressors were impacting on his coping ability at the time of his criminal offending.[91] Whereas this does not excuse or mitigate his criminal offending, it does support a finding that the risk of the Applicant committing similar offences in future is decreased in circumstances where he is no longer experiencing these personal stressors. In making this finding the Tribunal has had regard to the evidence that the Applicant has not been charged or convicted of any other criminal offence in Australia or Hong Kong.
[91] Exhibit A1, 109.
The evidence before the Tribunal is that in the period since his arrest in February 2021 to the date of the Tribunal hearing, the Applicant has undertaken numerous courses and programs detailed in [42]-[45] above. His evidence is that these courses have given him insight into the triggers for his family violence offending, and he now has the tools he needs to cope with the type of personal stressors that contributed to the offences for which he was convicted.
In addition to completing these courses, the Applicant has undertaken regular psychological and counselling sessions in immigration detention, including five sessions with Dr Dornan. He intends to consult his GP when he returns to the community to obtain a referral to see a psychiatrist. According to Dr Dornan, the Applicant does not require regular ongoing treatment as he has addressed most of the issues of concern identified in his January 2022 report.
In relation to the likelihood of the Applicant re-offending, the Tribunal has had regard to the opinions of the experts who have assessed the Applicant’s risk of committing further offences. In her September 2021 report, Ms Hawil assessed the Applicant a low risk of reoffending according to the LSI-R. In her opinion, there are a number of protective factors which will protect the Applicant against recidivism, namely his supportive relationship with family members, and his eagerness to complete his studies and secure employment. The NSW Corrective Services Sentencing Report dated 16 September 2021 also assessed the Applicant a low risk of reoffending according to the LSI-R.[92]
[92] Exhibit R1, G2, 122.
In both his January 2022 and August 2022 reports Dr Dornan similarly concluded that the Applicant poses an overall low risk of violent recidivism. He found that in the period between his reports, the Applicant had made considerable progress in addressing his risks. In his view, the Applicant does not currently pose a tangible threat to the Australian community.
On the basis of the evidence before it and taking into account available information and evidence of the risk of the Applicant re-offending and his rehabilitation, the Tribunal finds that the likelihood of the Applicant engaging in further criminal or other serious conduct is low. Despite the potential harm to the Applicant’s victims should he engage in the same or similar criminal conduct in the future, the Tribunal finds that this risk is not unacceptable.
For the reasons above and applying the guidance in paragraphs 8.1.1 and 8.1.2 of the Direction, Primary Consideration 1 on balance weighs against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 2 – Family violence committed by the non-citizen
Paragraph 8.2(2) of the Direction provides that this Primary Consideration is relevant where the non-citizen has been convicted of an offence that involves family violence and/or there is information or evidence from independent and authoritative sources indicating that the non-citizen has been involved in the perpetration of family violence. It is relevant in the Applicant’s circumstances as he has been convicted of four offences that involve family violence following his violent conduct against his former partner in February 2021.
Family violence is referred to in the principle enunciated at paragraph 5.2(5) of the Direction as conduct which ‘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.’ Family violence is also expressly referred to in Primary Consideration 1 of the Protection of the Australian community as conduct which is viewed very seriously by the Australian Government and the Australian community. It is also expressly referred to in Primary Consideration 4 of the Expectations of the Australian community as conduct of such seriousness that the Australian community would expect the Australian Government to refuse entry or cancel the visas of non-citizens.[93]
[93] Direction, subparagraph 8.4(2)(a).
The Tribunal has consistently found that family violence is abhorrent. It has been described as ‘a corrosive blight on the Australian community’,[94] ‘plainly abhorrent’[95] and an offence which ‘warps and destroys the healthy bonds that should exist between partners and within families.’[96] As the Tribunal observed in XFKR, family violence ‘normalises … socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated.’[97]
[94] Soames and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1955 at [106].
[95] Nyemah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2107 at [56].
[96] ZFZM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1633 at [136].
[97] At [45].
Paragraph 4(1) of the Direction defines ‘family violence’ 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’. It contains a non-exhaustive list of examples of behaviour that may constitute family violence:[98]
[98] Direction, paragraph 4(1).
a)an assault; or
b)a sexual assault or other sexually abusive behaviour; or
c)stalking; or
d)repeated derogatory taunts; or
e)intentionally damaging or destroying property; or
f)intentionally causing death or injury to an animal; or
g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
j)unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty.

Paragraph 8.2(1) of the Direction provides that the Australian Government has ‘serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia’, and that ‘[t]he Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged by the non-citizen.’
The Direction does not define a ‘family member’. However, s 4(1AB) of the Family Law Act 1975 (Cth), provides that a person is a member of the family of another person if, relevantly:
(d) the first person is or has been married to, or in a de facto relationship with, the second person; or …
The Applicant’s convictions for Assault occasioning actual bodily harm (DV), Intentionally choke etc person without consent (DV) and Common assault (DV) were perpetrated against his former partner, with whom he was in a de facto relationship, and thereby constitute acts of family violence for the purposes of the Direction. The Applicant’s offending involved very serious violent acts against the victim, including slapping her multiple times in the face, and choking her until she could not breathe.
In considering the seriousness of the family violence engaged in by the non-citizen, paragraph 8.2(3) of the Direction states that decision-makers must consider the following factors:
a)    the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b)    the cumulative effective 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 of 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.
Having regard to the factors in paragraphs 8.2(3)(a) and 8.2(3)(b) of the Direction, the family violence offences for which the Applicant was convicted in September 2021 are the only offences he has committed. The Tribunal accepts the Applicant’s evidence that he had not previously been violent towards the victim, and his actions on 5 and 7 February were isolated incidents.
In relation to the factors in paragraph 8.2(3)(c) of the Direction, the evidence before the Tribunal is that the Applicant attributes his violent behaviour to the stress and anxiety he was experiencing at the time, which included financial pressure and concerns about his academic performance. His evidence is that as a consequence of the various courses and programs he has completed and a period of self-reflection during his incarceration in gaol and immigration detention, he now has the tools to allow him to deal with personal stressors and not act aggressively or violently towards others, particularly an intimate partner, when he is under pressure. The Tribunal is satisfied that if the Applicant were to encounter personal stressors in a future personal relationship, he will have the knowledge and skills to avoid conflict and not engage in further acts of family violence.
The evidence supports a finding that the Applicant has taken full responsibility for his actions and he understands the impact of his violent offending against his former partner. He recognises that she is likely to have been traumatised, that she may have lost trust in others, and may have difficulty entering a new relationship. On the basis of the evidence before it, the Tribunal finds that the Applicant has accepted responsibility for his violent offending and recognises its harmful and ongoing impact on his former partner.
On the basis of the evidence before it and applying the guidance in paragraph 8.2 of the Direction, the Tribunal finds that the Applicant’s family violence offences are serious. However, the seriousness of his offending is mitigated by the fact these offences were isolated incidents, he has taken full responsibility for his offending, he understands the impact of his offending on his victim, and he has made considerable efforts to address the factors that led to his violent actions. Accordingly, the Tribunal finds that Primary Consideration 2 does not weigh against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 3 – The best interests of minor children in Australia affected by the decision
Paragraph 8.3(1) of the Direction requires decision-makers to determine whether revocation is in the best interests of any minor children. There are no minor children whose interests are affected by a decision to revoke the Mandatory Visa Cancellation Decision.
Primary Consideration 4 – The expectations of the Australian community
Paragraph 8.4 of the Direction states:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) …
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature …
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties;
(e) …
(f) …
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)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 above, without independently assessing the community's expectations in the particular case.
The Full Court of the Federal Court considered paragraph 11.3(1) of Direction 65, which is analogous to paragraph 8.4 of the Direction, in FYBR v Minister for Home Affairs (‘FYBR’).[99] The majority (Charlesworth and Stewart JJ) concluded as follows:
[99] [2019] FCAFC 185.
- Paragraph 11.3 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[100]
- It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations.[101]
- However, the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[102]
- It is necessary for the decision-maker to assess the applicant’s circumstances in order to reach an evaluative assessment of ‘appropriateness’.[103]
The effect of paragraph 8.4 is that it imputes to the Australian community the expectation that non-citizens who have permission to remain in Australia will obey Australian laws. The question to be addressed does not involve an inquiry into what the Australian community does or does not expect, because that is normatively expressed in the terms of the consideration: paragraph 8.4(4). Rather, the relevant inquiry is ‘whether it is appropriate to give more or less weight to a deemed community expectation’ of non-revocation of a mandatory visa cancellation ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences’.[104] As a normative expression, this consideration indicates the likelihood that community expectation will in most cases lead to non-revocation, without dictating an inflexible conclusion. The question for the decision-maker is the weight to be attached to this consideration.
[104] Charlesworth J at [77].
Having regard to the expectations of the Australian community as stated in paragraph 8.4 of the Direction, the Applicant committed four family violence offences against his partner, which, as recognised in paragraph 8.4(2)(a) of the Direction, the community would generally expect to result in the cancellation of his visa. Paragraph 8.4(3) provides that these expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm. Applying the Direction to the Applicant’s circumstances, the Tribunal finds that despite the low risk of him re-offending, the expectations of the Australian community would be that his visa remain cancelled.
Principles 5.2(4) and 5.2(5) of the Direction relevantly state:
(4) Australia has a low tolerance of any criminal or other serious conduct by visa those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Having regard to the factors in principle 5.2(4) of the Direction, the Tribunal notes that prior to its cancellation the Applicant held a student visa and accordingly, as the holder of a limited stay visa, the community has a low tolerance for his criminal conduct. However, he has lived in Australia for a period of six years, and therefore the community would have a higher level of tolerance of his conduct than there would be for a non-citizen who has lived in Australia for a short time.
Having had regard to the Government’s views in relation to the expectations of the Australian community and giving them appropriate weight, and taking into account the nature, seriousness and impact of the Applicant’s family violence offending, and the duration of his residency in Australia, the Tribunal finds that Primary Consideration 4 weighs against revocation of the Mandatory Visa Cancellation Decision.
Other considerations
While the primary considerations carry particular weight, the Direction acknowledges at paragraph 9 that ‘other considerations’ must be taken into account by the decision-maker where relevant. Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’
The Tribunal notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection (‘Suleiman’)[105]
Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[105] [2018] FCA 594 [23].
In FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[106] Wigney J held that this analysis ‘tends to overcomplicate or over intellectualise the issue’. His Honour held that the use of the word ‘generally’ in clause 8(4) of Direction 79 (the same wording is used in section 7(2) of Direction 90) ‘recognises that there may well be cases where the circumstances are such that one or more “other considerations” may be deserving of more weight than one or more primary considerations’.[107] His Honour also held that the formulation identified in Suleiman ‘is at least potentially problematic because it tends to suggest that a decision-maker cannot give greater weight to one or more of the “other considerations” in any given case unless they consider that the case is somewhat unusual or out of the ordinary’.[108]
[106] [2021] FCA 775 [22].
[107] Ibid at [23].
[108] Ibid.
The ‘other’ considerations relevant to the Applicant’s circumstances are considered in the following paragraphs.
Extent of impediments if removed from Australia
The Direction states in paragraph 9.2:
(1)     Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country, taking into account:
a)    the non-citizen’s age and health;
b)    whether there are substantial language or cultural barriers; and
c)     any social, medical and/or economic support available to them in that country.
Having regard to the factors in paragraph 9.2(1)(a) and (c) of the Direction, the evidence before the Tribunal is that the Applicant is aged 28 years and he has previously been diagnosed with mental health conditions. As a citizen of Hong Kong, the Applicant would have the same access to any social, medical and economic support as other citizens, which are likely to be of the same or similar standard as those available in Australia. The Direction provides that the extent of any impediments to an applicant in establishing themselves and maintaining basic living standards is to be considered in the context of what is generally available to other citizens of that country.
Guided by paragraph 9.2(1)(b) of the Direction, the Tribunal finds that the Applicant will not face language or cultural barriers on his return, as he lived in Hong Kong until the age of 22 years, and he speaks the language and is familiar with life in his home country. The Tribunal has had regard to the evidence before it that if the Applicant were to return to Hong Kong, he would be unable to transfer to a veterinary science degree that would recognise his successful completion of four years of his Bachelor of Veterinary Biology and Doctor of Veterinary Medicine at the University of Sydney. The evidence is that if the Applicant would need to enrol in a Bachelor of Veterinary Medicine at the City University of Hong Kong, which is a six-year degree, and is not currently recognised by the Veterinary Surgeons Board of Hong Kong for the purposes of registration as a vet. Based on this evidence, the Tribunal finds that the Applicant’s educational progress and career prospects would be significantly impacted if he were required to recommence his veterinarian studies in Hong Kong.
The Applicant’s mother and father reside in China and his younger brother lives in Hong Kong. The Applicant is in regular contact with his family members by phone and video calls. If he were to return to Hong Kong, he would not be able to rely on his parents to provide him with accommodation, although they would likely continue to support him financially. The Applicant’s brother would be able to provide him with some practical support as he readjusts to life in his home country. The extent of the hardship that the Applicant may face should he return to Hong Kong will depend on the degree of financial and practical support that he will receive from his family.
The Applicant will face considerable emotional hardship if he is removed to Hong Kong if, as a consequence, he is unable to pursue his dream of becoming a registered and practising veterinarian. In his January 2022 report, Dr Dornan noted ‘that from a psychological perspective, should [the Applicant] have to return to Hong Kong without completing his studies, this is likely to result in a notable decompensation in his functioning, due to the shame this would bring on him.’ [109] The Applicant also will suffer the emotional distress of being separated from the group of friends he has made during his studies at the University of Sydney. The emotional upheaval the Applicant is likely to experience if he were to return to Hong Kong may negatively impact his mental health condition which has recently stabilised, and result in him having to undergo further psychological counselling and treatment.
[109] Exhibit R1, G2, 115, at [78.7].
On the basis of the evidence before it and guided by the factors in paragraph 9.2 of the Direction, the Tribunal finds that this other consideration weighs heavily in favour of revocation of the Mandatory Visa Cancellation Decision.
Impact on victims
The Direction states in paragraph 9.3:
(1) Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence before the Tribunal of the views of the Applicant’s victim and the impact on her of a decision to revoke the Mandatory Visa Cancellation Decision.
Links to the Australian community

Paragraph 9.4 of the Direction requires decision-makers to have regard to paragraphs 9.4.1 to 9.4.2 below.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1 requires consideration of the strength, nature and duration of the Applicant’s family and social ties to Australia:
(1)   Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)   Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)    how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)    the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Having regard to paragraph 9.4.1(1) of the Direction, the evidence before the Tribunal is that the Applicant does not have any family members who reside in Australia. Relevant to paragraph 9.4(2)(b), the Applicant has a number of University friends, including those who gave evidence at the hearing. However, of these friends, only Mr He is an Australian citizen and the others are holders of temporary student visas. Accordingly, consistently with the Direction, the Tribunal finds that whereas the Applicant’s five-year friendship with Mr He is evidence of his social links with Australian citizens, only limited weight can be attributed to this consideration.
In relation to the factors in paragraph 9.4.1(2)(a) of the Direction, the Applicant has lived in Australia for a period of six years, during which time he has been a full-time student and has not been in paid employment. He committed the family violence offences in 2021, being a relatively short time after his arrival in Australia in 2016.
Based on the evidence before it, the Tribunal finds that the Applicant’s limited relevant social ties the Applicant and his minimal contribution to the community, do not weigh in favour of revocation of the Mandatory Visa Cancellation Decision.
Impact on Australian business interests
The Applicant does not claim that any Australian business interests would be affected by his removal to Hong Kong. Accordingly, the Tribunal has given the factors in paragraph 9.4.2(3) no weight.
On the basis of the evidence before it, and having regard to the factors in paragraph 9.4, the Tribunal finds that the Applicant’s limited links to the Australian community do not weigh in favour revocation of the Mandatory Visa Cancellation Decision.
CONCLUSION
In summary, the Tribunal finds that Primary Consideration 1 weighs against revocation of the Mandatory Visa Cancellation Decision. The Applicant’s domestic violence offences were very serious and despite the low risk of him committing further criminal offences, the nature and seriousness of the harm such offending would cause to victims is such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 2 does not weigh against revocation of the Mandatory Visa Cancellation Decision Direction, because although the Applicant’s family violence offences are serious, the seriousness of his offending is mitigated by the fact these offences were isolated incidents, he has taken full responsibility for his offending, he understands the impact of his offending on his victim, and he has made considerable efforts to address the factors that led to his violent actions.
Primary Consideration 4 weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that the Applicant’s domestic violence offending should cause him to forfeit the privilege of remaining in Australia, and this is not outweighed by duration of his residency of Australia.
In regard to the relevant Other Considerations, the considerable impediments he will face on return to Hong Kong, particularly the negative impact on his educational progress, career prospects, and mental well-being, weigh strongly in favour of revocation of the Mandatory Visa Cancellation Decision.
The Tribunal is satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked and decides that the Reviewable Decision should be set aside.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the decision under review is set aside and substituted with a decision to revoke the cancellation of the Class TU Subclass 500 Student (Temporary) visa.

I certify that the preceding 135 (one hundred and thirty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk

.................................[SGD].......................................
Associate
Dated: 30 September 2022

Date(s) of hearing: 24 & 25 August 2022

Counsel for the Applicant: Mr N Poynder

Solicitors for the Applicant: KAH Lawyers

Solicitors for the Respondent: Ms L Hargrave, Clayton Utz

[2022] AATA 3206

31 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Date(s) of hearing:	24 & 25 August 2022
Counsel for the Applicant:	Mr N Poynder
Solicitors for the Applicant:	KAH Lawyers
Solicitors for the Respondent:	Ms L Hargrave, Clayton Utz