TTGW and Minister for Immigration and Multicultural Affairs (Migration)

[2025] ARTA 126

TTGW and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 126 (3 February 2025)

Applicant/s:  TTGW

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:                2024/9197

Tribunal:R Cameron, General Member

Place:Melbourne

Date:  3 February 2025  

Decision:The Tribunal affirms the decision under review.

..................................[sgd]......................................

R Cameron, General Member

Catchwords

MIGRATION – 501(1) refusal to grant a protection visa - citizen of India – protracted history of criminal offending - family violence committed by the non-citizen -  applicant convicted of offences in relation to arson, bomb hoaxes, and vexatious calls to emergency services - failure to pass the character test – whether the discretion in s 501 to refuse to grant a protection visa should be exercised – applicant’s dependency on alcohol and risk of relapse as a contributor to reoffending - Ministerial Direction No. 110 – nature and seriousness of offending conduct – protection of the Australian community – impediments to removal – decision affirmed.

Legislation

Administrative Review Act 2024 (Cth) 
Migration Act 1958 (Cth)

Minister for Immigration, Multicultural Affairs, Migration and Citizenship, Direction No 110: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (21 June 2024)

Sentencing Act 1991 (Vic)
Crimes Act 1914(Cth)

Cases

DTR21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1237
FYBR v Minister for Home Affairs (2019) 272 FCR 454
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396

BZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 415 ALR 254

Secondary Materials

Department of Foreign Affairs and Trade, Country Information Report India (29 September 2023) 

Statement of Reasons

INTRODUCTION

1. The applicant seeks a review of a decision made on 11 November 2024 refusing to grant the applicant a Protection (Class XA) visa (‘the visa’) pursuant to s 501(1) of the Migration Act 1958 (Cth) (‘the Act’) (‘the reviewable decision’).[1]

   [1] G4, 25; G5, 26. In this regard, references to “G” documents are references to documents required to be given to the applicant under s 501G(2) of the Act.

2. The applicant is a citizen of India. He is presently 60 years of age having been born in 1964. He arrived in Australia in December 1996.

3. On 6 June 2019, the applicant’s Return (Residence) (Class BB) (Subclass 155) visa was mandatorily cancelled pursuant to s 501(3A) of the Act. The mandatory cancellation of that visa has not been revoked.

4. Following the mandatory cancellation of his visa the applicant applied for a Protection (Class XA) (Subclass 866) visa, commonly referred to as a ‘Protection visa’.

5. On 2 April 2024, a protection finding was made that the applicant satisfied the relevant criteria in the Act with respect to India.[2]

   [2]  G67, 465.

6. On 11 November 2024, the applicant was released from immigration detention when he was granted a Bridging R visa under r 2.25AB of the Migration Regulations 1994 (‘BVR’).

   THE EVIDENCE BEFORE THE TRIBUNAL

7. There was both documentary and oral evidence before the Tribunal.

8. The following witnesses gave oral evidence:

   (a)The applicant;

   (b)Mr Coffey, a Clinical Psychologist.

9. In addition to witness statements from each of the above witnesses, there were tendered in evidence the G documents, and an agreed joint tender bundle (‘JTB’) of further documents relied on by the parties.

   THE APPLICABLE SECTIONS OF THE MIGRATION ACT

10. Section 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

11. The character test prescribed by s 501(3A)(a) is contained in s 501(6) of the Act. Section 501(6) provides that a person does not pass the character test if the person has a ‘substantial criminal record’ (as defined by s 501(7) of the Act). For the purposes of s 501(6)(a) of the Act, and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[3]

    [3] Migration Act 1958 (Cth), s 501(7)(c).

12. Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must, under section 499(2A) of the Act, comply with a relevant direction. Currently, the applicable direction that the Tribunal as decision-maker must apply, made by the Minister on 7 June 2024, is Direction No 110 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘Direction 110’).[4]

    [4] Direction 110 commenced on 21 June 2024.

    ISSUES BEFORE THE TRIBUNAL

13. The issues for determination by the Tribunal are as follows:

    (a)Does the applicant pass the character test as defined by s 501(6) of the Act? and

    (b)If the applicant does not pass the character test should the Tribunal, as decision-maker, exercise the discretion in s 501(1) of the Act to refuse to grant the visa to him?

    DOES THE APPLICANT PASS THE CHARACTER TEST?

14. It is conceded on behalf of the applicant that he does not pass the character test under s 501(6)(a) of the Act.[5] This is because he has a ‘substantial criminal record’ having been sentenced to a term of imprisonment of 12 months or more.[6] He was on 28 March 2019 convicted of several offences and sentenced to a total term of imprisonment of 1 year and 6 months, with a non-parole period of 9 months. Details of this conviction and sentence will be outlined below.

    [5] See, the Applicant’s Statement of Facts Issues and Contentions (‘ASFIC’) for this concession at [3].  Such a concession was also made by counsel for the applicant in oral submissions at the hearing.

    [6] the Act, s 501(7)(c).

    DIRECTION 110

15. At the outset it is appropriate to refer to several of its provisions which guide decision-makers such as the Tribunal, and to note the considerations to be taken into account as articulated Direction 110. This overview is of course in no way exhaustive, and no substitute for careful consideration of the language used in each of its provisions. Several of those provisions warrant mention at this stage of the process.

16. Paragraph 4 ‘Interpretation’, provides a definition of several expressions or terms that are referred to in the ‘primary’ and ‘other’ considerations that the Tribunal is obliged to apply.

17. ‘Family Violence’ is in paragraph 4 defined to mean 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. Examples of behaviour that may constitute family violence include, an assault, a sexual assault or other sexually abusive behaviour.

18. Paragraph 5.1 ‘Objectives’, articulates the objectives of the relevant provisions of the Act. Amongst other things, the objectives include:

    (a)… To regulate, in the national interest, the coming into, and the presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa;

    (b)Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test... Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion;

    (c)… The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.

19. Paragraph 5.2 ‘Principles’, provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizens visa under section 501, or whether to revoke a mandatory cancellation under s 501CA of the Act. These Principles include the following:

    (a)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.

    (b)The safety of the Australian community is the highest priority of the Australian Government.

    (c)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to forfeit the privilege of staying in, Australia.

    (d)The Australian community expects that the Australian Government can and should cancel non-citizens 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 measurable risk of causing physical harm to the Australian community.

    (e)With respect to decisions to refuse, cancel, and revoke cancellation of a Visa, 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.

    (f)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 revoking a mandatory cancellation.

    (g)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

20. Paragraph 6 ‘Making a decision’, provides 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.

21. Paragraph 7 ‘Taking the relevant considerations into account’, provides that:

    (a)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

    (b)The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.

    (c)One or more primary considerations may outweigh other primary considerations.

22. Paragraph 8 ‘Primary considerations’, provides that in making a decision under, amongst others, s 501CA(4), the following are 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 strengths, nature and duration of ties to Australia;

    (d)the best interests of minor children in Australia;

    (e)expectations of the Australian community.

23. Paragraph 9 ‘Other considerations’, provides that in making a decision under, amongst others, s 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

    (a)legal consequences of the decision;

    (b)extent of impediments if removed;

    (c)impact on Australian business interests.

    THE APPLICANT’S OFFENDING

24. The applicant has an extensive criminal history. Details of the applicant’s offending are contained in a national criminal history check record contained in the G documents.[7] He did not when in the witness box dispute that he had committed the offences recorded in that document or the penalties and sentences imposed upon him.

    [7]  G6,44.

25. There was an array of documentation before the Tribunal which provided some specific details of several of the offences that were committed by the applicant. On most occasions when the contents of these documents were put to him, he generally agreed with them. He did, however, acknowledge that his recollection of many of the events was limited. Mr Coffey a clinical psychologist who consulted the applicant on seven occasions  and prepared a report also made this observation both in his report and in his evidence from the witness box. This was because of several factors. Those factors included the passage of time, which in several instances was in the region of twenty or more years ago, and the fact that on many occasions when he committed the offences concerned, he was severely affected by alcohol. He also considered that his mental health conditions may have also contributed in some way to his limited recollection of some of those events.

26. There were occasions, particularly in cross examination, where the applicant disputed the contents of contemporaneous documents that had been prepared by the police which recorded the circumstances of his offending. Given the applicant’s concession that his recollection of most events was not good, the Tribunal prefers the contents of a contemporaneous document prepared by the police rather than the applicant’s recollection where he disputed the facts articulated in such documents.

27. It is evident from an examination of the national criminal history check record that the applicant’s first offence was recorded in September 1998 relatively soon after his arrival in Australia. The most recent conviction occurred in June 2019.

28. Since June 2019, save for a relatively short period when he was released into the community for approximately three months towards the end of 2022, the applicant has been either imprisoned or in immigration detention until his recent release in November of 2024.

29. Given the range of offending and variety of sentences and penalties imposed upon the applicant it is appropriate to reproduce a detailed history of it in tabular form.

DATE	COURT	OFFENCE	PENALTY OR SENTENCE
16/09/98	Ryde Local Court	False representation resulting in police investigation.	Recognisance of $500.00 for 3 years.
23/02/2000	Ryde Local Court	Contravene apprehended domestic violence order.	Fine: $400.00
23/02/2000	Ryde Local Court	Common assault.	Recognisance of $200.00 with two years supervision by the NSW Probation Service.
23/02/2000	Downing Centre Local Court.	Possess prohibited drug.	Fine: $200.00.
13/12/2000	Ryde Local Court.	Negligent driving.	Fine: $250.00, Court Costs $56.00.
13/12/2000	Ryde Local Court	Drive with high range PCA.	Bond for 18 months to be supervised by the NSW Probation Service. To attend any course or programs as directed. Period of disqualification imposed concluding on 08/10/2001.
10/04/2002	Ringwood Magistrates’ Court.	Drunk in a public place.	Convicted and discharged.
22/05/2002	Ringwood Magistrates’ Court	Wilfully damage property.	Without conviction, adjourned to 22/05/2003.
01/05/2003	Dandenong Magistrates’ Court	Make a false report to police.	With conviction, fined $300.00.
18/07/2003	Ringwood Magistrates’ Court.	Intentionally damage property. Drunk in a public place.	Convicted and discharged.
02/03/2004	Melbourne County Court.	Criminal damage by fire (Arson). Criminal damage by fire (Arson). Reckless conduct endangering serious injury. Threaten to destroy/damage property.	21 months imprisonment. 15 months imprisonment, 6 months of sentence concurrent. 9 months imprisonment concurrent. 4 months imprisonment concurrent. Total 2 years 6 months. To pay $4,603.53 compensation.
18/03/2005	Ringwood Magistrates’ Court	Breach intervention order.	With conviction, fined $100.00.
18/03/2005	Ringwood Magistrates’ Court.	Breach intervention order.	Convicted and sentenced to a Community Based Order for 6 months. All core Community Based Order conditions to apply.
18/03/2005	Ringwood Magistrates’ Court	Unlawful assault.	1 Day imprisonment. Concurrent.
21/04/2006	Broadmeadows Magistrates’ Court	Breach intervention order. Theft (2 Charges). Obtain financial advantage by deception (6 Charges) Attempt to obtain financial advantage by deception (2 Charges). Obtain property by deception. Failure to comply with Community Based Order.	Convicted and placed on a Community Based Order for 12 months. All core Community Based Order conditions to apply. Convicted and placed on a Community Based Order for 12 months. All core Community Based Order conditions to apply. Proven.
28/03/2011	Dandenong Magistrates’ Court	Make a false call to emergency service.	Without conviction adjourned for 12 months on entering a $500.00 good behaviour bond under section 19B of Commonwealth Crimes Act.
28/03/2011	Dandenong Magistrates’ Court	Bomb hoax-make statement/convey information.	Convicted and placed on a Community Based Order for 18 months. Directed to undergo assessment/treatment. To undergo assessment for programs to reduce reoffending.
20/04/2011	Dandenong Magistrates’ Court	Failure to comply with Community Based Order.	Proven.
20/04/2011	Dandenong Magistrates’ Court	Breach re-28/03/2011. Bomb-hoax make statement/convey information.	Original order has been varied. Convicted and placed on a Community Based Order for 18 months. The Offender is required to attend the Moorabbin Justice Centre-Corrections by 30/03/2011 by 4.00pm. The order commences on 28/03/2011 with the following conditions: To undergo assessment and treatment for alcohol/drug addiction or submit to medical/psychological/psychiatric assessment and treatment as directed by the Regional Manager. To undergo assessment for programs to reduce re-offending and participate in such programs as directed by a Community Corrections Officer. This man is prohibited from drinking alcohol as a condition of his CBO. All core Community Based Order conditions to apply.
20/04/2011	Dandenong Magistrates’ Court	Make a false call to emergency service (2 charges).	Aggregate 3 months imprisonment. Sentence to commence on 20/04/2011. Time spent in custody, 9 days, reckoned as a period of imprisonment already served under this sentence.
21/08/2012	Dandenong Magistrates’ Court	Breach Re: 20/04/2011. Bomb hoax-Make statement/convey information.	With conviction, fined $250.00.
21/08/2012	Dandenong Magistrates’ Court	Contravene Community-Based Order.	Proven.
13/08/2015	Dandenong Magistrates’ Court	Use a carriage service to harass.	Convicted and discharged.
13/08/2015	Dandenong Magistrates’ Court.	Bomb hoax-make statement/convey information.	6 months imprisonment. Concurrent. Sentence of imprisonment to be served by way of a Drug Treatment Order under s 18Z of the Sentencing Act 1991 (Vic). Program conditions: Submit for alcohol and drug testing AS DIRECTED. Submit for detoxification, attend vocational, educational and employment programs. Attend AS DIRECTED program. Submit to medical, psychiatric and psychological treatments AS DIRECTED. Other conditions: THE DEFENDANT WAIVES ALL RIGHTS OF CONFIDENTIALITY OF COMMUNICATIONS ABOUT HIM BETWEEN ON THE ONE PART, THE DRUG COURT ITS SERVANTS AND AGENTS, AND ON THE OTHER PART ALL TREATMENT PROVIDERS AND ALL GOVERNMENT DEPARTMENTS, AUTHORITIES AND AGENCIES. THE DEFENDANT IS SUBJECT TO A CURFEW UNTIL 13 SEPTEMBER 2015 WHICH REQUIRES HIM TO BE PRESENT AT 10/60 CLOW STREET DANDENONG BETWEEN THE HOURS OF 9 PM AND 6 AM. THE DEFENDANT IS PROHIBITED FROM ATTENDING ANY HOTEL OR BAR. Core conditions: Not commit, whether in or outside Victoria, another offence. Attend Drug Court when required to do so. Report to Community Corrections Centre DANDENONG DRUG COURT CCS on 13/8/2015 at 11 AM. Report to, and accept visits from DRUG CT TEAM OR DELEGATES AS DIRECTED. Undergo treatment for alcohol dependency AS DIRECTED. Give notice of any change of address. Not to leave Victoria except with permission. Obey all lawful instructions and directions.
21/04/2016	Dandenong Magistrates’ Court	Drunk in a public place (8 Charges). Smoke on a train. Possess open liquor container on railway premises. Failure to produce a valid ticket in a designated area. Smoke where no smoking sign permitted. Drink liquor on rail premises.	Convicted and discharged.
12/10/2017	Dandenong Magistrates’ Court	Contravene a conduct condition of bail (2 Charges). Bomb hoax-make statement/convey information.	Convicted and discharged.
12/10/2017	Dandenong Magistrates’ Court.	Contravene a conduct condition of bail.	Convicted and discharged.
12/10/2017	Dandenong Magistrates’ Court	Make vexatious call to emergency service (5 Charges). Use a carriage service to menace (2 Charges). Make false call to emergency service (2 Charges)	Aggregate 35 DAYS imprisonment. Sentenced to commence on 17/07/2017. Time spent in custody, 35 days, reckoned as a period of imprisonment already served under this sentence. Convicted and a Community Correction order for 18 MONTHS. This condition commences on 12/10/2017 for a period of 18 months.
12/07/2018	Dandenong Magistrates’ Court	Make vexatious call to emergency service (2 Charges).	ON EACH CHARGE: Convicted and a Community Corrections Order for 12 MONTHS. This condition commences on 12/07/2018 for a period of 12 months
15/01/2019	Dandenong Magistrates’ Court.	Contravene Community Correction Order.	Proven.
15/01/2019	Dandenong Magistrates’ Court.	Contravene a conduct condition of bail.	With conviction, fined $200.00.
15/01/2019	Dandenong Magistrates’ Court.	Make vexatious call to emergency service (2 Charges).	Aggregate 142 DAYS imprisonment. Sentenced to commence on 15/01/2019. Time spent in custody, 142 days, reckoned as a period of imprisonment already served under this sentence.
28/03/2019	Dandenong Magistrates’ Court.	Make vexatious call to emergency service. Make a false call to emergency service.	Aggregate 18 MONTHS imprisonment. Sentenced to commence on 28/03/2019. Time spent in custody, 20 days, reckoned as a period of imprisonment already served under this sentence. Recognisance Release Order under s 20(1)(b) of the Crimes Act 1914 (Cth). To be released after 9 months of sentence served. Convicted and released pursuant to s 20 of Crimes Act 1914 (Cth), upon giving security by a $500.00 recognisance on the following conditions: to be of good behaviour for 15 months.
28/03/2019	Dandenong Magistrates’ Court.	Re: Breach 12/07/2018. Make vexatious call to emergency service (2 Charges).	Aggregate 8 MONTHS imprisonment. Sentenced to commence on 28/03/2019.
28/03/2019	Dandenong Magistrates’ Court.	Failure to comply with sentence order/made.	Proven.
03/06/2019	Dandenong Magistrates’ Court.	Re: Breach 12/10/2017. Make vexatious call to emergency service (5 Charges). Use a carriage service to menace (2 Charges) Make a false call to emergency service (2 Charges).	Aggregate 6 MONTHS imprisonment. Sentenced to commence on 3/06/2019.
03/06/2019	Dandenong Magistrates’ Court.	Failure to comply with sentence/order made.	Proven.

1. Contained in, amongst other things, the G documents before the Tribunal were several documents that provided further details about some of the applicant’s offending. It is appropriate to refer to the circumstances of some of the applicant’s offending for the purposes of these reasons.

2. There was in evidence before the Tribunal the sentencing remarks of the presiding Magistrate at the Dandenong Magistrates’ Court 28 March 2019.[8] Some of the matters touched on by the presiding Magistrate during that hearing, in his sentencing remarks, warrant mention.

   [8]G8, 57.

3. The offences committed by the applicant which were dealt with by the presiding Magistrate on 28 March 2019, included the breach of a community corrections order that had been made initially by another Magistrate in July of the previous year. The new offences before the court in March 2019 had occurred a short time after he had previously been dealt with. It is apparent that the applicant had not learnt from his frequent attendances in court.

4. The presiding Magistrate observed that the applicant had a very significant prior criminal history. He also observed that the applicant’s offending had been essentially the same and was very repetitive, including offences of making a vexatious call to emergency services and making a false call to emergency services. In this regard, he further noted that the applicant’s history for that type of offending went as far back as 2011.

5. Another feature of the sentencing Magistrate’s comments made on 28 March 2019, included his observations concerning the various ranges of penalties and sentences that had been imposed upon the applicant. He noted that there had been multiple community corrections orders. There had also been drug diversion programs. The Magistrate described the applicant as a very difficult person to manage. Notwithstanding, that the applicant was observed by him to be quite bright, articulate, and capable, there had been a significant mental health diagnosis. These observations of the presiding Magistrate are consistent with the observations that this Tribunal made of the applicant when he was in the witness box at the hearing of this application. He is clearly an educated man of some considerable intelligence. This fact does to some extent make the applicant’s offending, its seriousness and repetitive nature somewhat difficult to comprehend. He clearly knows better.

6. With respect to the breaches of a community corrections orders, the Magistrate recorded certain other observations. He noted that with respect to such breaches, the applicant had pushed back, meaning he had not engaged as well as he should have in terms of the treatment and rehabilitation programmes that had been offered to him. Further at times, it appeared to the sentencing Magistrate that the applicant believed he was better than those who were facilitating such programs and he felt that he should be taking (administering) the program.

7. Concerning the offences of making a vexatious call and a false call to emergency services the presiding Magistrate made several comments. He found it is very dangerous offending and a serious offence. The Magistrate considered that it was serious because it diverted services away from what could otherwise be their normal work, and in doing so, initially the applicant was placing those emergency responders at risk of harm. This may arise because of the manner in which they respond to the applicant’s calls, whether it be for example by breaking the road rules through speed or going through red lights, such as occurs when a police car or ambulance rushes to the scene of an incident falsely reported to them. Additionally, such conduct has the effect of otherwise diverting emergency services from legitimate calls. This is perfectly understandable.

8. The presiding Magistrate endeavoured to explain the gravity of the applicant’s offending to him by way of an example. The example given was when an ambulance attended at his premises and at the same time, some 3 km down the road there was someone who legitimately required the assistance of the ambulance service. In such circumstances, if the ambulance was tied up with the applicant because of either the vexatious or false call that he had made, there is as he described it, ‘very much a ripple effect’ on the community and it certainly affects the emergency services overall. The Tribunal should observe that it is not difficult to comprehend a situation occurring where a member of the public who is the victim of, for instance a serious car accident, or one suffering a heart attack, requiring urgent ambulance attention could have been denied such attention as soon as possible because of the applicant’s false complaint causing an ambulance to be elsewhere when it was otherwise legitimately needed.

9. The applicant was, as noted above, at the Dandenong Magistrates’ Court in 2015, convicted of offences relating to a bomb hoax and making statements conveying certain information. This offending occurred late in the evening of 28 March and early in the morning of 29 March 2015. On this occasion the applicant made a series of telephone calls to the emergency services number, ‘000’. He was severely intoxicated. So much so that after his arrest when taken to the Dandenong police station he was unfit to be interviewed.[9]

   [9] The circumstances surrounding the offending committed by the applicant on 28 March and 29 March 2015 are contained in a Victoria Police document ‘Preliminary Brief-Statement Made by Informant', G11, 81.

10. In the first phone call he requested that an ambulance attend his home address. In several subsequent calls he stated to the ‘000’ operator that he wanted to “Burn the whole world”. Subsequently, he stated to the ‘000’ operator, “Do you know how to die?” He then said there was a “Bomb” on several occasions stating that it was in the city but declined to provide any further details at that time. Subsequently, at approximately 12:56 AM the applicant made another call to ‘000’ and stated that there was a bomb at his residence in Dandenong. The ‘000’ operator endeavoured to obtain more information from the applicant about the bomb which prompted evasive responses from him. At one stage of the conversation he said, “cut the blue wire”[10] and then alternatively stated "do not cut the blue wire.” Then the applicant stated that he knew about the bomb as he was a scientist and knew everything about making bombs. At this stage in the conversation, he then referred to a bomb being placed in Federation Square (which is in the central business district of Melbourne) but refused to answer any further questions about it. He terminated the conversation by saying ‘God bless us all.’ It was observed that during each of the telephone calls the applicant’s speech was slurred and he sounded heavily intoxicated. Police were immediately dispatched to the applicant’s residence where he was arrested in relation to making a bomb hoax.

    [10] For those who have a lengthy memory this quote is a direct reproduction of a line from the 1974 crime suspense film ‘Juggernaut’, starring amongst others, Richard Harris, Omar Sharif, Anthony Hopkins, David Hemmings and Clifton James. In the most suspenseful scene of the film, the bomber, Juggernaut tells Harris’ character that in order to disarm the bomb to “cut the blue wire”. Harris playing the bomb disposal expert cut the red wire thus disabling the bomb. Whatever the applicant may have intended by making such statement, it is not difficult to conceive of an emergency services operator concluding that the applicant had some level of sophisticated expertise in bomb making and therefore, take the threat very seriously indeed.

11. The sentencing remarks of the County Court Judge on 10 March 2004 were in evidence and should also be referred to.[11] It should be recalled that these sentencing remarks were referable to the applicant’s guilty pleas to one count of making a threat to destroy or damage property, one count of reckless conduct endangering a person and two counts of arson. When some aspects of the sentencing Judge’s reasons were put to the applicant when he was in the witness box, he stated that there was much of that offending that he could not remember. He put this down to the fact that he was so drunk at the time. Once again, to the extent that the applicant does not recall the details of his offending for which he was sentenced in the County Court of Victoria in March 2004, the Tribunal  prefers the matters recorded in the sentencing reasons.

    [11]  G8, 57.

12. The sentencing Judge observed that already by March 2004 the applicant had a moderately extensive criminal history with six  previous court appearances where seven convictions had been imposed, and a further seven offences found proven, but convictions on those occasions were not recorded. The judge observed that undoubtably such offending was alcohol related. He also stated that there was no doubt that alcohol, and in particular, binge drinking, had been a major problem for the applicant.

13. The first count of arson occurred on 2 March 2003. The applicant was residing in a unit in Dandenong. He had been given notice to vacate. Sometime after midnight on that day, after having spoken to a social worker seeking more time to stay, the applicant set fire to the unit. There were found to be two seats of the fire one, in the lounge room, and the second in a bedroom. The applicant was described at the time of such offending as being agitated, extremely intoxicated and incoherent.

14. The second arson occurred on 5 June 2003 when the applicant was living at a supported residential facility in West Footscray run by the Department of Human Services, which accommodated up to 80 people. The applicant was described the time of being very agitated and smelling strongly of intoxicating liquor. At approximately 6.00 AM he dialled 000 causing the ambulance, police and fire brigade to attend the premises. He used a cigarette lighter to set fire to the curtains. Fortunately, although the fire spread, the sprinkler system was able to extinguish the fire. The sentencing Judge observed that when the crimes were committed by the applicant for which he was before that court he was ‘grossly inebriated’.[12] Further this was of course self-induced. The Judge also stated it was of concern that the applicant’s overindulgence in alcohol had been associated with violence, and on each occasion, he lit the fires after an episode of heavy drinking. This of course is consistent with the sentencing Judge’s observations referred to earlier, that binge drinking has been a major problem for the applicant.

    [12] Ibid 62.

15. The sentencing Judge also recorded in his reasons that the applicant had been reviewed by a consultant psychiatrist in January of that year, namely 2004. The findings recorded in that doctor’s report were that there were no symptoms of psychiatric illness evident, although the applicant did exhibit anxiousness concerning his future.

16. It was considered by the sentencing Judge that if the applicant reverted to using alcohol, as he had done in the past, it was highly likely that he would drink to excess and should he do so that he would almost certainly reoffend. Unfortunately, this is precisely what happened with the applicant on many occasions following that sentencing.

17. The observation was also made by the sentencing Judge that arson is a very serious crime indeed. Although no one was injured because of the applicant’s crimes of arson, there was potential for serious harm to occur. This was very much so with respect to the second offence, quite obviously given that the premises were occupied by many people, some of whom would almost inevitably have been vulnerable.

18. As for rehabilitation, the Judge concluded whether the applicant was to achieve rehabilitation would depend on the attitude which he took to alcohol upon his release. Unfortunately, he was not able to address his alcohol issues following his release from prison after serving that sentence.

19. Another feature of the applicant’s offending that was commented on by the sentencing Judge in the County Court of Victoria in March 2004, arises from the circumstances relating to the second conviction for arson for which he was sentenced on that day. That is that the applicant cried and apologised for lighting the first fire and after being charged and bailed a few weeks later lit the second fire. He was on bail for the offences relating to the first arson when he committed the second arson. This is puzzling indeed. One would have expected in the normal course of things that a person who had been arrested, charged with a serious offence such as arson and then bailed, would have done their best to avoid any further offending. That the applicant did not do so in these circumstances does not reflect well upon him.

20. There were incidents that occurred on 2 and 3 May 2003 involving the applicant at the dwelling occupied by his former wife and their children.[13] The first incident occurred at approximately 8:45 PM on 2 May 2003. The applicant’s ex-wife and two young children were present at the premises. The applicant affected by alcohol, banged on the door, yelled loudly and demanded to enter the property. The applicant’s ex-wife locked the door and refused him entry. She also called the police who attended and escorted the applicant from the premises. In his evidence, the applicant readily admitted this offending and stated that he went to his ex-wife’s house when he was drunk, which clearly was the case. He attempted to explain this by saying that he went to the house out of a misguided desire of wishing to see his children.

    [13] Details of these incidents are contained in a Victoria Police ‘Summary of Charges’, G12, 86. See also,  a statement of a police constable who arrested the applicant on 3 May 2003, G13, 87.

21. At approximately 2:50 AM on the morning of 3 May 2003 he returned to the unit occupied by his ex-wife and children. They were not present at that time. The applicant was still affected by alcohol. He was observed by a neighbour banging loudly on the door to the unit and yelling out to his ex-wife. It would appear when there was no response he then moved to a front window and proceeded to strike it with his fists, causing the window to smash. He apparently then ran from the premises but collapsed shortly afterwards in close proximity to the unit. The police arrived and he was arrested and conveyed to the Ringwood police station. He was unable to be interviewed initially, due to the effects of alcohol, and was placed in a holding cell until later that morning when he was interviewed. Subsequently, he was released on bail to appear at the Ringwood Magistrates’ Court on 18 July 2003. In the interview eventually conducted with police, the applicant denied he was drunk and also stated when confronted with the question of damage that, ‘I haven’t done any damage.’ That was clearly a false denial.

22. Subsequently, on 3 June 2003 a Family Violence Final Intervention Order was granted on the application of his former wife against him. The intervention order, amongst other things, prevented him from knowingly being at or within 200 m of the premises occupied by his ex-wife.

23. The applicant was charged and appeared before the Ryde Local Court in December 2000 with respect to driving with a high range of alcohol in his system and negligent driving. His offending occurred on 22 August 2000 at approximately 1.00 AM in the morning.[14] The applicant was driving his car in North Ryde and lost control of it. He explained in his evidence that he was driving his car at that time whilst intoxicated as he was upset because of arguments he had at that time with his wife. The police attended and the applicant who was injured was conveyed by ambulance to the Ryde Hospital. A blood sample was taken from him. When subsequently analysed the reading was 0.163. This is well over three times the legal limit. The police described the applicant at the time when they attended the accident scene, as appearing heavily intoxicated, which no doubt he was, with such a high reading. The applicant stated in his evidence that his car driver’s licence was cancelled as a result of this conviction.

    [14] These details contained in a New South Wales Police ‘Facts Sheet’ at G14, 91. In cross examination, the applicant accepted that the contents of the New South Wales Police ‘Facts Sheet’ were correct.

24. There were offences committed by the applicant against his wife when they were residing in Ryde New South Wales on or about 14 February 2000. At the time the applicant was described in a New South Wales Police ‘Facts Sheet’ as moderately affected by alcohol.[15] He told his wife to withdraw $400.00 from her bank account. She told him she did not wish to do so. After making this remark the applicant slapped her twice with an open hand to her left cheek causing her to experience pain. She thereupon complied with the request and withdrew the sum of $400.00. Whilst she was absent from the home unit, they occupied, withdrawing the money, the applicant apparently telephoned her threatening to kill her. When she returned home the applicant punched her with a closed fist to the left leg causing her to experience more pain. At the same time as doing so he continued to make threats to kill.

    [15] G15, 92.

25. In his written statement, where reference is made to this offending, the applicant said that he did not remember everything that happened as it was a long time ago. When the contents of the New South Wales Police Facts Sheet were put to him in cross examination, the applicant’s evidence tended to shift. Initially, he stated that he didn’t remember the incident concerned. Then he stated he didn’t believe he made any threats or statements to the effect that he would kill. Then he rather robustly stated, ‘I would never have said that’. Finally, he retreated from that position by stating that he could vaguely remember what happened, that it had been a long time ago, he had experienced a brain haemorrhage and suffered from poor memory. Then, he shifted again by saying, ‘It is not possible that I am mistaken. No’. Given the way the applicant’s evidence shifted on this topic, the passage of time that has passed since the relevant events, his medical conditions and the concession that his memory could be faulty, the Tribunal prefers the contents of the New South Wales Facts Sheet insofar as it records the circumstances of that offending.

26. The police arrived and arrested the applicant. When being conveyed to the police station in a police car the applicant commented to the attending police officers amongst other things, ‘you better put me in jail or I’m going to kill somebody.’ At the police station when he was interviewed the applicant denied hitting his wife and denied making threats over the telephone to her. He did state that he was drunk and depressed. The police then contacted the Ryde mental health team. He was charged with common assault and contravention of an apprehended domestic violence order as referred to in the table above.

27. There is another feature of the applicant’s conduct that warrants mention that was canvassed when he was in the witness box. In evidence before the Tribunal was a ‘Preliminary Brief-Statement Made By Informant’ prepared by a member of the Victoria Police Force following the applicant’s arrest on or about 7 March 2019.[16] The document is divided into 3 parts being the ‘Circumstances of Arrest’, ‘Personal Circumstances’ and ‘Reasons Opposing Bail’. In the section of the document which provides reasons for opposing bail several matters are referred to. Some of these matters were put to the applicant in cross examination.

    [16] G10, 67.

28. In one part of that section of the document, it is stated that between 20 July 2018 and 28 August 2018, the applicant breached bail conditions to which he was subject approximately 893 times by telephoning the ‘000’ emergency number, when not in fact facing a true emergency. When confronted with this in cross examination the applicant stated that he could not be sure how many times he had made such calls but accepted that the document was correct. It was also put to him that given that number of calls in that timespan, it amounted to an arithmetic average of 22 calls per day. The applicant took issue with this and stated that it was not possible that he would call over 20 times a day. He further somewhat flippantly stated that if it were the case he would have been arrested. Then his evidence, rather strangely, was that he might not have made any calls for 2 or 3 days then might have made more than 30 calls on a day. He was also probed whether during that time when he made that large number of calls, he was drunk. He replied that the most of that period he was not drunk, but when further probed did reluctantly concede that he was intoxicated some of the time. His evidence as recounted on this matter is truly remarkable and does not reflect at all well upon him.

1. There were some other matters recorded in the ‘Preliminary Brief-Statement Made By Informant’ that also should be mentioned, although it is acknowledged that these facts were not canvassed with the applicant in cross examination. Between 20 January 2018 and 20 May 2018, the applicant telephoned the ‘000’ emergency services number 136 times. From 6 April 2018 the 9 May 2018 the applicant telephoned ‘000’ a total of 36 times.

2. Further, 9 May 2018 the applicant telephoned the ‘000’ emergency services number 16 times. The applicant was bailed on 15 May 2018 and breached the terms of those bail conditions 6 times by calling the ‘000’ emergency services number when not facing a true emergency.

3. The applicant again breached the terms of his bail between 20 July 2018 and 28 August 2018 by telephoning the ‘000’ emergency services number 25 times when not facing a true emergency.

4. This history that has just been recounted reveals that the applicant has made the most remarkable number of unnecessary calls to emergency services. It almost defies belief.

5. With respect to these unnecessary or false calls to the ‘000’ emergency services number the ‘Preliminary Brief-Statement Made By Informant’ also records that the applicant was in breach of a Community Corrections Order that he was subject to at the time. Those breaches of the Community Corrections Order referred to by the presiding Magistrate at Dandenong referred to above. The Community Corrections Order apparently had conditions that he not contact the ‘000’ emergency services number unless there was a genuine or legitimate need to do so to prevent further offending of this type.

6. Unfortunately, it is quite apparent that the applicant has a significant propensity or tendency, particularly when drunk or affected by alcohol, to call emergency services when there is no legitimate reason for doing so. There has been a sustained pattern of conduct on the part of the applicant of this type for many years. The Tribunal has no confidence that in the absence of the applicant totally abstaining from the consumption of alcohol that such conduct will not occur again. This is extremely regrettable.

7. The Tribunal is also concerned with respect to the applicant’s propensity to make unnecessary calls to emergency services, that given his response to some questions in cross examination, whether he has truly gained an appropriate level of insight into the gravity of such offending or truly appreciates what he needs to do to avoid committing offences of this type in the future. This is of particular concern given the many occasions when he has appeared in court to answer charges with respect to such offending and the inevitable warnings that must have been given to him about the seriousness of it by the presiding Magistrates. Certainly, his most recent appearance in the Dandenong Magistrates’ Court of 28 March 2019 was an occasion where the significance of such offending was well and truly explained to him by the presiding Magistrate. It is of concern that an intelligent man, as the applicant clearly is, having had this explanation given to him by a judicial officer would have sought to give evidence about such offending in the way he did when he was in the witness box. Unfortunately, it seems with respect to this offending the applicant just has not come to terms with what he has done.

   PARAGRAPH 8.1 OF DIRECTION 110 – PROTECTION OF THE AUSTRALIAN COMMUNITY

8. Paragraph 8.1(1) of Direction 110 provides that when considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, 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 principal that entering or remaining in Australia is a privilege that 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.

9. Paragraph 8.1(2) of Direction 110 provides that 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.

   Paragraph 8.1.1 of Direction 110 – The nature and seriousness of the applicant’s conduct

10. Paragraph 8.1.1(1) of Direction 110 mandates that in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to several factors, amongst others, including the following:

    (a)without limiting the range of conduct that may be considered very serious, amongst other things, the types of crimes or conduct viewed very seriously by the Australian Government and the Australian community include:

    (i)violent and/or sexual crimes;

    (ii)crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed; and

    (iii)acts of family violence, regardless of whether there is a conviction for an offence or 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:

    …

    (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;

    …

    (c)with the exception of crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b) (i) the sentence imposed by the courts for a crime or crimes;

    (d)the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose Visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their isa, has been afforded procedural fairness;

    (e)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness.

    (f)the cumulative effect of repeated offending.

11. In applying this primary consideration there are several relevant matters to consider.

12. The applicant acknowledged that unquestionably some of his offending was very serious and of relevance to the primary consideration of protection of the Australian community. He conceded that his most serious offending related to those cases of family violence and arson. However, he emphasised that this offending occurred between 18 and 24 years ago. It was further emphasised by him that he has not committed similar offences since that time.

13. What the applicant described as ‘carriage service offending’ was also acknowledged to be serious and persistent. However, it was contended that such offending was less serious than the acts of family violence and arson for which he had been previously convicted.

14. It was contended on behalf of the applicant that this primary consideration should attract less adverse weight, than otherwise might be the case, due to the effluxion of time since his most serious offending, the relatively low prospect of repetition by reason of his advancing age, extremely poor health and a demonstrated period of good behaviour when he has been released into the community in more recent times. Reinforcing this contention, was a submission that the applicant has gained proper insight into the causes and consequences of his offending and the genuine efforts he had undertaken to come to terms with his significant mental health and alcohol abuse issues.

15. The Tribunal considers that the applicant’s criminal offending can only be classified or categorised as very serious. There are several reasons for this, and they do emerge from an application of the language used in paragraph 8.1.1 of Direction 110 to the circumstances of such offending as emerged from the evidence.

16. On several occasions in material lodged on his behalf either with this Tribunal or the respondent it was conceded by the applicant that his offending was serious.[17]

    [17] For instance, in a submission prepared by his then lawyers on 5 March 2024, it was conceded that the applicant had been convicted of offences which constitute a ‘particularly serious crime’, based upon the National Police Check, G68, 503, [15]. In paragraph 19 of the ASFIC of 16 December 2024 a concession was made that some of his offending ‘is unquestionably very serious’.

17. Several of the offences committed by the applicant were violent crimes. They included common assault, reckless conduct endangering serious injury, and unlawful assault. There are also several other convictions which are consistent with a propensity for violent behaviour on the part of the applicant. They included wilfully damaging property, intentionally damaging property, criminal damage by fire (arson) (2 counts) and threaten to destroy or damage property. Under paragraph 8.1.1(1)(a)i of Direction 110 such crimes are viewed very seriously by the Australian Government and the Australian community. Understandably so.

18. Another reason why the Tribunal concludes that the applicant’s offending should be categorised as very serious arises from the conviction for criminal damage by fire (arson). He committed this crime on 5 June 2003 at a supported residential facility in West Footscray. It will be recalled that this facility provided accommodation for up to 80 people and was provided by the Department of Human Services. There was enormous potential to cause significant serious injury, or even death, if the fire lit by him had not been promptly extinguished. It is apparent that there were a large number of occupants of that supported residential facility, several of whom more probably than not, would have been vulnerable. The number of victims was potentially very high. It was plainly grossly reckless and inexcusable behaviour on the part of the applicant. Counsel who appeared on behalf of the applicant at the plea hearing in the County Court readily acknowledged that such offending on the part of the applicant ‘were serious crimes’.[18] That is self-evident. When in the witness box the applicant said about this offending, ‘I wasn’t thinking straight, it was insane behaviour. If I had been sober, I wouldn’t have thought about doing a stupid thing like that.’ It is hard to disagree with such observations. They do highlight the seriousness of the offending concerned in the applicant’s mind.

    [18] G8, 60, [12].

19. In terms of the applicant’s arson offending, another matter should be raised which enables such offending to be classified or described as serious. Under s 6B(2) of the Victorian Sentencing Act 1991 a ‘serious arson offender’ is defined as an offender who has been convicted of an arson offence for which he has been sentenced to a term of imprisonment. This provision does reflect the fact that the Victorian legislature regards arson offending seriously, which such offending attracting a term of imprisonment clearly is.

20. Additionally, some of the applicant’s offending were acts of family violence. Details of these acts of family violence have already been recounted earlier in these reasons. They were perpetrated against the applicant’s former wife and on occasion were committed in the presence of his children who were comparatively young and in a position of vulnerability. No child should have to observe their father committing an act of violence against their mother. It is criminal offending that is by the language adopted in paragraph 8.1.1(a)(iii) of Direction 110 viewed very seriously by the Australian Government and the Australian community regardless of any sentence imposed.

21. The Tribunal notes that the applicant did concede, quite properly, that any conduct amounting to family violence is very serious for the purposes of Direction 110. He sought however to invite the Tribunal to give more limited weight in favour of refusal, with respect to this aspect of his offending, as already noted to some degree, given the significant lapse of time since such offences occurred, his level of insight and remorse and, finally, given his extremely poor state of health, amongst other things, what he submitted meant that there is a fairly remote prospect of him reoffending.

22. Whilst at first blush, the submissions of the applicant relied upon to urge the Tribunal to give more limited weight in favour of refusal concerning this aspect of his offending, may have some attraction, it is unable to accept this submission. These factors do not diminish the nature and seriousness of this aspect of his offending. The details of such offending which have been recounted earlier in these reasons speak for themselves. It was plainly unacceptable conduct which the legislature has gone to considerable lengths to prohibit, and as noted earlier, is offending which is viewed very seriously by the Australian Government and the Australian community, particularly as provided for in Direction110. The significant remedies and penalties which can be administered by the courts against perpetrators of family violence such as the applicant also reflect the seriousness of family violence offending. Such sanctions as were taken against the applicant were for good reason. The passage of time and remorse, amongst other things, do not diminish the seriousness of such offending by the applicant.

23. Another observation should be made concerning the applicant’s contention that the Tribunal should attach more limited weight to this primary consideration in favour of refusal, given the significant lapse of time since such offences occurred. It should not be lost sight of that the applicant has since he was sentenced in 2019, save for short periods of release into the community, either been in prison or immigration detention. Therefore, he has only been tested in the community over a relatively short time span. It remains to be seen whether he has been truly rehabilitated. As has been observed in the material before the Tribunal, the concern must be if the applicant relapses into consumption of alcohol. Which he has done on both the occasions that he was released into the community in late 2022 and from November of last year. Further details of this relapse will be provided later in these reasons.

24. It should not be lost sight of that for many years the Australian community has sent a loud and clear message that any act of family violence is completely and utterly unacceptable. It has no place in our society.[19] This attitude of the Australian community to family violence is also reflected in paragraph 5.2(8) ‘Principles’ of Direction 110 which provides that the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify refusing the visa, even if the information available at the time of consideration suggests that the non-citizen does not pose a risk of causing physical harm to the Australian community. These considerations are quite applicable to the applicant’s conduct in this case. This is even if, as in the case of the applicant, the offences involving family violence occurred many years ago. It does not diminish the seriousness of such offending whenever it occurred.

    [19] See for instance, DTR21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1237, [67]; [70].

25. In terms of the seriousness of the criminal offending on the part of the applicant, reference should also be made to the significant number of charges laid against him concerning, false representations, false reports, false calls, making bomb hoaxes, making vexatious calls and using a carriage service to harass or menace. He conceded that such offending was serious and persistent. That is quite apparent from the evidence before the Tribunal. These charges and convictions, of which there are many over a significant number of years, were made to police and emergency services. The Tribunal considers that these crimes were committed against government representatives or officials, namely emergency service workers such as ‘000’ operators in the performance of their duties as contemplated by paragraph 8.1.1(1)(b)(ii) of Direction 110. They must be on any objective analysis considered very serious indeed. To suggest that there was a bomb at Federation Square in the Melbourne’s Central Business District is quite alarming if not disturbing. The ‘000’ operator, more likely than not, would have been profoundly affected by reason of taking that call. It was simply unacceptable criminal behaviour.

26. Paragraph 8.1.1(c) specifies that the Tribunal as decision-maker must have regard to the sentenced imposed by the courts for the applicant’s crimes. Details of the sentences imposed are contained in the table sub-joined to paragraph 29 above. Those details are referred to and repeated. Several things emerge from a consideration of the material recorded in that table with respect to the sentences imposed.

27. The applicant has been sentenced to terms of imprisonment on eight  occasions. The first term of imprisonment was imposed by a judge of the County Court of Victoria in March 2004. It is perfectly understandable given the crimes that the applicant committed namely arson, reckless conduct endangering serious injury and threaten to destroy or damage property that a term of imprisonment would be imposed, let alone a significant one as occurred. One pauses to observe that by the time this sentence of imprisonment was imposed in March 2004 the applicant had already been prosecuted in several lower courts for a significant number of charges. Those previous encounters with the criminal justice system did not serve to deter him from further criminal offending.

28. Also, on the question of imprisonment further observations should be made. The respondent, as is often the case, quite understandably, submitted that imposing a prison sentence on an offender is the last resort in the sentencing hierarchy. This is undoubtedly true. Liberty of the subject has always been considered by most legal systems to be paramount. It is a serious step to take to deprive a citizen or subject of their liberty. This has occurred on several occasions as a result of the applicant’s offending and subsequent court appearances. It does reflect the serious nature and gravity of such offending as viewed by the legislature, courts and the Australian community.

29. Of further concern in terms of the nature and seriousness of the applicant’s offending, is that after his appearance in the County Court of Victoria at Melbourne in March 2004 there were several further terms of imprisonment imposed on him. It is apparent that the time he spent in prison following his conviction and sentence in March 2004 did not deter him from further offending of such gravity that subsequent prison sentences were imposed for such offences. This is all the more surprising given that the applicant when in the witness box readily conceded that he was given a very stern warning by the sentencing Judge. Once again, he simply did not learn from his experiences or heed the sensible warning of an experienced Judge. Prisons are notoriously unpleasant places. Most rational people would generally prefer not to be incarcerated. He also conceded that his terms of imprisonment had been particularly unpleasant for him. Quite understandable. He does not fit the mould of a person as a career criminal who would readily adapt to the unique nature, hierarchy, demands and in-house rules, of the prison environment as for instance, hardened criminals regularly mixing in such circles, frequently do.  His subsequent further offending and terms of imprisonment is all the more puzzling given that the applicant appears to have been someone of considerable education and intellect who clearly knew better and would have been expected to have learned from his experiences. More probably than not, it is a manifestation of the effect that acute alcohol addiction has had on his capacity to conduct himself in a rational, sound and law-abiding manner, as well as engage in logical thinking and appropriate problem solving.

1. In various ways the applicant sought to downplay or diminish the seriousness of his criminal offending by inviting the Tribunal to believe that the catalyst for such offending arose from several intervening factors. These factors or matters that the applicant sought to rely upon arose from several facts. He contended that for many years he had battled with a significant range of mental health problems. He traced the origins of these mental health problems to when he was living in India and when in relatively quick succession his parents and grandparents died. Under an Indian custom he was obliged to cremate them personally. The evidence, he contends, was that these unexpected deaths of close relatives had a significant impact on his mental health. In the context of his mental health, he stated that for many years he suffered from undiagnosed conditions which he had to deal with himself, without the benefit of professional medical or psychological assistance.

2. It was further contended by the applicant that these mental health conditions were exacerbated with the breakdown of his marriage which has been referred to earlier in these reasons. One should observe that Judge Nixon in the County Court of Victoria when sentencing the applicant on 10 March 2004 was prepared to accept that the breakdown in the applicant’s marriage was ‘catastrophic’ for him.[20] Perhaps it also should be recorded that the sentencing judge noted that neither the applicant’s wife nor his children had contacted him then since he had been in prison. There is no doubt there has been a vast number of years with no contact between them whatsoever.

   [20] G8, 61, [18].

3. However, prior to his sentence for the arson and other charges in March 2004 the applicant was assessed by a psychiatric registrar in June 2003 and a consultant psychiatrist in September of that year. None of them diagnosed any of the mental health condition from which he now says he suffers. Nor did they go so far, as the applicant seems to be obliquely attempting to do, to assert that his marital breakdown was a contributing factor to the onset or exacerbation of his mental health conditions. When this question was touched on in cross examination, he conceded that those examinations conducted by the psychiatric registrar and a consultant psychiatrist in September of that year did not identify any of the mental health conditions which it appears he has subsequently been diagnosed with.

4. In a sense the applicant contended that these factors compounded the difficulty he faced mentally, and yet again he did not seek professional assistance to address these questions. Unfortunately, the applicant then contended that on top of mental health conditions that had been triggered by several events he sought to engage in self-medicating by excessive use of alcohol. He explained in various ways the pain and suffering he experienced during these years where he consumed alcohol more and more and clearly, to excessive levels led to much of his offending.

5. Whilst it is true to say that the applicant did not seek professional assistance for his mental health issues, it is not quite right to say that he did not do so, certainly in later years. For instance, there was in evidence a relatively brief report from Dr Young, a clinical psychologist, to Dr Bassi of 23 January 2018.[21] That report followed the applicant having attended seven separate psychological sessions with Dr Young. Whilst that report is comparatively brief it indicates that the applicant was concerned about his alcohol use and behaviour that arose from excess consumption. He reported to Dr Young that he was managing his alcohol well then and although he was still drinking alcohol, he was doing this in moderation. Unfortunately, the applicant expressed to Dr Young a view that upon Dr Young’s retirement from practice, he did not think engaging with another psychologist would be helpful at that stage as he believed he was managing his alcohol use, mood and other symptoms effectively. This attitude on the part of the applicant recorded by Dr Young to some considerable extent was very similar to the evidence that the applicant gave in the witness box in various different ways, such as when he said he believed he can consume some alcohol safely and that he would intend to drink like normal people. It is of concern that this misguided attitude on the part of the applicant persists to this day and has been held by him for many years. It is also consistent with what the applicant told Mr Coffey. It is also important to observe that the applicant expressed these views to Dr Young in or about January 2018 which was the very month that his pattern of false calls to emergency services in 2018 commenced and continued throughout the year until approximately the end of August. It is quite apparent that the applicant’s confidence in his ability to manage his alcohol consumption as expressed to Dr Young was completely misguided. One can only speculate, however, if he had sought additional treatment after Dr Young’s retirement there may have been a different outcome in terms of his offending both in its seriousness and repetition.

   [21]G54, 293.

6. There were also two letters from Dr Saluja, a clinical psychiatrist, one of 3 June 2018 addressed to Dr Bassi and another one dated 17 June 2018 addressed to a corrections officer in Dandenong.[22] Those letters from Dr Saluja touched on various aspects of the applicant’s mental health conditions. Dr Saluja diagnosed the applicant as suffering from the conditions of alcohol dependence, an underlying anxiety and depressive disorders. He also concluded that the applicant probably had a diagnosis of post-traumatic stress disorder which required further exploration. In the second more comprehensive letter or report from Dr Saluja of 3 June 2018, he records the applicant expressing to him views that have also been expressed by the applicant to Dr Young, Mr Coffey and this Tribunal in his evidence from the witness box. In the applicant’s  first interview with Dr Saluja, he recorded that he undermined his alcohol use and stated that he was not an alcoholic but when his pattern of drinking was revisited, he became insightful that he was dependent on alcohol. Unfortunately, he also recorded the applicant stating that he had participated in several alcohol-related programs (mostly mandated by the court) but does not find them useful. Disturbingly, Dr Saluja also recorded the applicant stating to him that he can counsel others. One pauses to note that this is consistent with the observations made by the sentencing Magistrate at the Dandenong Magistrates’ Court that the applicant believed that he was better than those who are facilitating such programs. As such he felt that he should be conducting such programs. This attitude on the part of the applicant as recorded by the sentencing Magistrate in March 2019 and by Dr Saluja in his report of 3 June 2018 are somewhat inconsistent with aspects of the applicant’s evidence that he gave from the witness box. He stated that he had satisfactorily undertaken a prescribed drug court program. One would have expected by June 2018 when he saw a consultant psychiatrist namely, Dr Saluja that if he had satisfactorily completed a prescribed drug court program he would have said so. It is surprising indeed that it is not recorded in that report, and the Tribunal considers that, it is more probable than not, that the reason it was not mentioned by the applicant, was as he told Dr Saluja that he did not find it useful, and he considered that he could counsel others, as was noted subsequently by the sentencing Magistrate in 2019. These reports demonstrate that notwithstanding the conditions from which the applicant experienced, he at least to some degree, had the presence of mind to seek competent professional assistance. Once again it should be observed that both these reports occurred during a period when the applicant made multiple false calls to the ‘000’ emergency number.

   [22] G5,285; G53,288.

7. Paragraph 8.1.1(1)(e) of Direction 110 requires that the Tribunal as decision-maker must have regard to the frequency of the applicant’s offending and whether there was any trend of increasing seriousness. Quite understandably, with considerable force and effect, the respondent relies upon the fact that his criminal history discloses in excess of 55 criminal convictions between September 1998 in June 2019. During those years this criminal history shows a persistent pattern of offending. Serious offending indeed. The Tribunal cannot conclude that there was a trend of increasing seriousness in the applicant’s offending. The most serious offences committed by the applicant were those that occurred in 2003 for which he was subsequently convicted and sentenced in the County Court by Judge Nixon on 10 March 2004. His family violence offences, details of which have been canvassed earlier in these reasons were similarly very serious offending for the reasons previously explained. There have not been any family violence offences committed by the applicant since 2006.

8. Nonetheless, the applicant’s subsequent offending, not to mention his overall pattern of offending as outlined above, was persistent and relatively serious which did culminate in a further term of imprisonment being imposed upon him in the Dandenong Magistrates’ Court on 28 March 2019. Lest it needs to be repeated, the applicant did not learn from his previous periods of incarceration. By 2019 the applicant’s offending had occurred over a term in excess of 20 years. It is plainly unacceptable conduct. This is unfortunate indeed.

9. As for the cumulative effect of repeated offending on the part of the applicant which the Tribunal must have regard to under paragraph 8.1.1.(1)(f) of Direction 110, this is difficult to assess due to the absence of any material before the Tribunal that enables a detailed assessment of such a consideration to be undertaken. The respondent submitted that a cumulative effect of his offending was to consume public resources. Certainly, it is apparent on the relatively limited material before the Tribunal that public resources including such agencies as police and other emergency services were diverted from time to time as a result of the applicant’s offending. No doubt if a law-abiding citizen who experienced a legitimate need for recourse to these public resources did so at the same time as the applicant committed the offences he did, it may have meant that such law-abiding citizen’s legitimate needs might not have been attended to as quickly or appropriately as otherwise may have been the case. There was also the application of court, prosecutorial and prison services arising from his offending. The application of these several public resources ultimately places a burden on the taxpayer. Beyond this, there is little more that can be addressed on the evidence before the Tribunal concerning this question.

10. Finally, there is another matter that should be addressed when dealing with this primary consideration. Reference was made earlier in these reasons in the section outlining the applicant’s offending to the occasions in 2018 and 2019 where the applicant made an extraordinary number of calls to the ‘000’ emergency services number. Those details are referred to and repeated. What is of concern about that conduct that is relevant to assessing its nature and seriousness arises from the fact that such conduct breached his bail conditions and the terms of a Community Corrections Order. The calls to the emergency services number ‘000’ between 20 July 2018 and 28 August 2018 constituted 893 separate breaches of his bail conditions. The Tribunal infers that on the material before it, such conduct also constituted the same number of breaches of the terms of the Community Corrections Order.

11. This conduct demonstrates an alarming propensity or tendency on the part of the applicant to disobey orders made by a court or terms imposed upon him by appropriate authorities, for instance where bail may have been granted to him by the police. This repeated and obviously wilful disobedience to the law and orders made by courts is of the utmost gravity. It is critical to the peace and good order of society that subjects obey the law and any orders imposed upon them by the courts or other regulatory authorities empowered to impose them. Whilst one may be prepared to grant some level of latitude to someone such as the applicant where there has been the occasional breach, the extraordinary and wholesale number of breaches on the applicant’s part is totally unacceptable and must therefore mean that his conduct in that regard be characterised as of the utmost seriousness. It is all the more concerning given he is an intelligent and educated man who knows better and clearly understands the gravity of his action.

12. Taking into account all factors articulated above concerning this primary consideration the Tribunal concludes that the nature and seriousness of the applicant’s offending is such that very heavy weight must be placed upon it in support of refusing to grant the visa sought by him.

    Paragraph 8.1.2 of Direction 110 – The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

13. Paragraph 8.1.2(1) of Direction 110 provides that 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.

14. Paragraph 8.1.2(2) of Direction 110 provides that in assessing the risk that may be posed by the non-citizen 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 reoffending; 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).

15. At the outset of the application of this primary consideration, reference should be made to a submission developed by the applicant’s counsel concerning the approach that should be adopted by the Tribunal. The submission contended that the application of this consideration could go one way or the other, either in favour of the applicant or against him. The Tribunal accepts this aspect of the applicant’s contention. However, for the Tribunal to find that the appropriate weight to attach to this primary consideration is in favour of granting the visa sought, it is necessary to carefully consider the language of this paragraph of Direction 110 and assess the evidence before it.

16. Following on, the question it is then submitted for the Tribunal to address is whether the Australian community would be safer if the applicant continues to hold the BVR or a protection visa. On his behalf, the question was answered by the Applicant's representatives that the community would be safer if he were issued a protection visa. Expressed in reverse, a visa refusal, would if anything, elevate the risk posed by the applicant. In this setting therefore, the Australian community would be more likely to be protected by a grant of the visa sought. Whilst the Tribunal acknowledges the contention advanced in this regard, it does not consider the language used in paragraph 8.1.2 of Direction 110 requires the Tribunal to pose the question and answer it as contended. It accepts the contentions of the respondent concerning this question.[23] The task incumbent upon the Tribunal, as decision-maker, is specified to be an assessment of the risk that may be posed by the applicant to the Australian community after taking into account each of the matters identified in that paragraph.

    [23] Respondent’s submissions dated 29 January 2025, [6].

17. The applicant’s submissions went to some length to outline the twenty-one conditions attaching to his BVR and contended that such conditions do not meaningfully protect the community from any conduct that this particular applicant might engage in.[24] That might well be so. However, if a protection visa is granted to the applicant, whether or not the community is protected, or faces the risk of further offending on the part of him, will depend upon him appropriately managing his consumption of alcohol. Given the evidence that has unfolded, including that from Mr Coffey. It will require the applicant to remain totally abstinent. There are serious risks on the material before the Tribunal that this will not occur.

    [24] Applicant's submissions dated 23 January 2025, [47(f)] .

18. In any event for the reasons articulated below, the Tribunal is not satisfied that the Australian community would necessarily be better protected if the applicant were granted a protection visa rather than a BVR. It should not be lost sight of that for many years whilst the applicant was in title to permanently reside here, he nonetheless engaged in persistent offending.

19. In addressing the first matter to be considered under paragraph 8.1.2(2) of Direction 110 being the nature of harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct, his previous offending provides some indication of what that harm may be. There have been a series of prosecutions against the applicant which have either been proven and/or resulted in convictions being entered. They range from arson, reckless conduct endangering serious injury, threats to destroy or damage property, motor traffic offences assault, bomb hoaxes and making false or vexatious calls to emergency services together with breaches of intervention orders.

20. Given this range of offending the nature of the harm to individuals or the Australian community could be very broad ranging. Quite apparently, the various victims of such offending could suffer physical injury in the case of assaults or arson, family violence, damage to property in regard to property offences, damage to motor vehicles and personal injuries if he were to commit potential driving offences when involved in a motor vehicle collision, particularly whilst intoxicated. (However, the Tribunal does not place any weight on this factor as the applicant has not driven for many years and not held a driver’s licence for a long time, so the likelihood of such offending must be considered remote, if at all. He has not at any time driven whilst disqualified.) As for bomb hoaxes and false reports to emergency services, harm to individuals or the Australian community could arise in several ways. There is the risk to emergency services personnel and the diversion of various emergency services agencies’ resources if such false reports are made. The potential for such harm to the community has been touched on in the consideration of the applicant’s offending earlier in these reasons. In particular, the comments made by the sentencing Magistrate in March 2019 at the Dandenong Magistrates’ Court are referred to and repeated.

21. With respect to arson offences, it is acknowledged that the applicant’s offending occurred almost 22 years ago. Mr Coffey stated both in his report and from the witness box that he does not believe that the applicant has a propensity for violence and considers the probability of such offending to be low.[25] He was asked a question in cross examination if he thought the applicant has a propensity to be a ‘fire setter’. He responded that he did not think there is a strong probability that he would commit an arson again. This opinion he stated was fortified by the passage of time, namely over 20 years, since his last offence. Perfectly understandable.

    [25] JTB, A8 100, [128].

1. What is established from the material is that 3 June 2003, as noted above, a Family Violence Final Intervention Order was granted against the applicant in favour of his former wife. Certainly, since that time the applicant has had no contact with his former wife or his children.

2. The applicant’s children are now adults. His eldest daughter who is now 37 years of age herself has a child. That child is a son. The applicant only found out that he was a grandfather when he made enquiries of his ex-wife’s sister during his brief release into the community in late 2023. He telephoned her, and it was during that telephone call that he was informed that his daughter had given birth to a grandson. In that telephone call he was informed that his grandson is approximately 10 or 11 years of age. There was no further evidence concerning the grandson, such as his date of birth, where he is living or other relevant circumstances.

3. There was no further evidence concerning his son who is now 26 years of age.

4. The applicant expressed a desire if he is permitted to remain in Australia to reconnect with his children. This is perfectly understandable. He does not know their whereabouts nor their contact details. He has no knowledge as to whether they wish to see him. However, if any reconnection or perhaps more accurately restoration of a relationship with his children is to occur, it will be wholly dependent upon the attitude they take to any overtures the applicant may make to them. Their views are completely unknown. There is no evidence from them before the Tribunal.  Certainly nothing to suggest that they wish to renew contact with their father. In any event, it would not be unreasonable to conclude that it is more probable than not, restoring a relationship with his children will be difficult whoever initiates such contact. This is so because of the significant lapse of time since he last had contact with them and that, insofar as his ex-wife is concerned, he was restrained by an intervention order from having any contact with her.

5. Given the extremely limited evidence before the Tribunal concerning the applicant’s immediate family members in Australia, it is simply not possible for it to realistically assess any impact of a decision to refuse to grant the visa sought by the applicant on them. As things stand, it is more probable than not that there will be no impact upon them.

6. The applicant contends that the Tribunal must have regard to the length of time that he has resided in Australia. Given that it is 28 years, it is contended this fact alone should oblige the Tribunal to attach considerable weight to this primary consideration.

7. The respondent on the other hand submits that because the task before the Tribunal in this application relates to whether or not to refuse to grant a visa the length of time that the applicant has resided in Australia is an irrelevant consideration, or otherwise does not apply.

8. When one construes the language used in the first sentence of paragraph 8.3(2) of Direction 110, it limits the application of that paragraph to a situation where consideration is being given to cancellation or revocation of a visa. Further, it is a representation that has been made by the applicant and relied upon by him in support of a contention that he should be granted the visa. Therefore, the Tribunal should take this fact into account.

9. Notwithstanding the limitation of language used in the first sentence of paragraph 8.3(2) of Direction 110 the Tribunal considers that it is not restrained from taking into account such factors as the time the applicant has spent residing in Australia. It is to some extent an indicator of the strength, nature, and duration of a non-citizen’s ties to this country.

10. It should be repeated that the applicant arrived in Australia in December 1996 when he was aged 32 years. It is a significant portion of his adult life.

11. Upon his arrival in Australia the applicant lived in Sydney with his wife and daughter. He had several jobs there including as a taxi driver, a driving job for a Holden showroom, a pizza delivery driver and a store filler at Woolworths. He then moved to Melbourne in approximately 2001 and had several jobs including at call centres and a Telstra review centre. Due to mental health conditions which included anxiety, panic attacks and agoraphobia, he stopped working in approximately 2008 whereupon he became the recipient of a disability support pension. He has not worked since. The applicant no longer drives and his driver’s license lapsed, he stated in evidence, between 10 and 15 years ago.

12. The applicant says that he has no remaining ties to India or for that matter any other country.

13. The substantial time that the applicant has been in both prison and immigration detention since his most recent convictions has caused him to lose touch with some people who were previously his friends. However, he has managed to maintain some social contacts. There are three friends, Mr S, Mr D and Mr F. He has known them for many years, and they all have businesses that are geographically reasonably close to the premises that he is currently living in. Mr F has a business that the applicant occasionally attends and assists with on a casual basis, which it appears is without reward.

14. The applicant contends that Australia is now his home, he has more ties in this country than he has with India. He contends that if he is permitted to remain here for the rest of his life hopefully, he would be able to see his children and any grandchildren. It is his intention, of his rehabilitation efforts to prove successful, to eventually seek part-time employment and socialise in the community. Otherwise, it is his intention to seek opportunities to do some kind of voluntary community job.

15. The respondent contends that even if the Tribunal takes into account the fact that the applicant has resided in Australia for approximately 28 years any favourable weight that might be attracted in favour of the applicant by reason of this fact must be tempered. The reason for this is that the applicant’s offending occurred relatively soon after his arrival. Such offending first occurred in approximately September 1998.

16. The applicant contends that significant weight should be placed on this primary consideration in favour of a grant of the visa sought.

17. On the other hand, the respondent contends that the Tribunal should attach neutral weight to this primary consideration.

18. The Tribunal considers that reasonably limited weight should be placed on this primary consideration in favour of the grant of the visa. It does so for several reasons. There has been a long and persistent pattern of offending. Such offending did commence relatively soon after his arrival in Australia. Whilst the applicant has not had contact with his children for many years, nor seen his grandson, nonetheless it appears that his only remaining family ties anywhere are in Australia. He has lived in this country for a long time, very close to half of his life. What ties he has anywhere, are more in Australia than India. There remains a possibility that the applicant may re-establish a relationship with his children and possibly establish one with his grandson. Whilst this possibility remains it is a factor or feature of his ties to this country.

    Primary consideration 8.4 of Direction 110 - Best interests of minor children in Australia affected by the decision

19. Paragraph 8.4(1) of Direction 110 provides that decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.

20. Paragraph 8.4(2) of Direction 110 provides that this consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or not revoke the mandatory cancellation of the visa, is expected to be made.

21. The only evidence concerning a minor child affected by the decision, concerns as outlined above, the applicant’s grandson. Apart from the existence of the grandson there is no other evidence before the Tribunal concerning him.

22. There is no relationship between the applicant and his grandson. Given the absence of evidence concerning the grandson, and of course the attitude of the applicant’s daughter, the grandson’s parent, one cannot reach any conclusion as to whether the applicant is likely to play any role in his grandson’s life in the future.

23. In this setting the applicant contends that the Tribunal should adopt what is described as the ‘default’ position that it is desirable for children to have meaningful contact with their grandparents. Therefore, by reason of this contention limited weight should be placed on this consideration in favour of a grant of the visa sought by him. Additionally, it is contended that the prospect of the applicant ever having a meaningful role in his grandson’s life would be promoted by a grant of the visa sought. Whilst it is apparent that on any objective analysis the positive involvement of a grandparent in a child’s life is to be preferred, one cannot reach a conclusion about whether or not this is likely to occur in this instance. It is just too speculative. Presumably, if the applicant’s daughter wished her son to have contact with her father, she would make some form of overtures. The son is apparently 10 or 11 years of age and there have been no such attempts at contact during his lifetime. One can infer from this, that it is more probable than not that she does not wish the applicant to take a role in her son’s life.

24. There is no other evidence that enables the Tribunal to address any of the factors identified in paragraph 8.4(4) of Direction 110.

25. By reason of the foregoing matters the Tribunal concludes that no weight should be attached to this primary consideration.

    Primary consideration 8.5 of Direction 110 - Expectations of the Australian Community

26. Paragraph 8.5(1) of Direction 110 provides that 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 not to allow such a non-citizen to enter or remain in Australia.

27. It is also provided in paragraph 8.5(2) of Direction 110 that in addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns offences 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, if they raise serious character concerns through conduct, in Australia or elsewhere of the following kind, amongst others:

    (a) acts of family violence; or …

    (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, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

28. Paragraph 8.5(3) of Direction 110 provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

29. It is also provided in paragraph 8.5(4) of Direction 110 that 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.

30. In applying this primary consideration, it is instructive to refer to several passages from the decision in FYBR v Minister for Home Affairs which is frequently referred to in cases before this Tribunal and the courts.[43] Several passages from that decision explain that, as is apparent from an examination of a paragraph of the earlier Ministerial Direction, Direction 99, which expressed similar language, to the extent it contains a statement of the expectations of the Australian community, the clause is ‘deeming’.[44] As Charlesworth J also explained, the clause imputes or ascribes 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.[45] These expectations are established and are to be applied as norms.

    [43] (2019) 272 FCR 454.

    [44] Ibid.

    [45] Ibid [67].

31. As Mortimer J (as she then was) in YNQY v Minister for Immigration and Border Protectionobserved,[46] in substance, this consideration is adverse to any applicant where they have failed the character test and have been convicted of serious crimes.

    [46] [2017] FCA 1466, 27-8 [76].

32. The expectations of the Australian community should be determined by reference to the provisions of Direction 99 itself, not by an independent assessment conducted by the Tribunal. The weight to be applied in undertaking the balancing exercise prescribed by Direction 99 is ultimately a matter for determination by the decision-maker, in this case the Tribunal, taking into account all relevant individual factors including countervailing factors from the person’s specific circumstances.[47]

    [47] Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396, 19 [97].

33. The applicant whilst acknowledging that this primary consideration will of necessity weigh in favour of a refusal to grant the visa sought, contends that relatively less weight should be placed on it due to his individual circumstances. In essence, he describes these individual circumstances as placing him in a different category of applicant than what otherwise might be the case.

34. The individual or special circumstances relied upon by the applicant have already been canvassed to a considerable degree previously in these reasons. However, it is appropriate to reiterate them briefly. There is his advancing age, he is over 60. He has a significant range of medical conditions which require specialist medical treatment which he has been receiving over some time.[48] He has been a long-term resident of Australia for almost half his adult life close to 30 years. There is his poor health which is been touched on earlier. Significant emphasis was also placed upon the ‘catastrophic consequences’ that could flow from a decision to refuse him a protection visa. Also, in terms of his offending, the applicant submits that it must be viewed in its context, which was in a setting of a significant marriage breakdown. Finally, he also submits that his most serious offending occurred approximately 20 years ago.

    [48] Precise details of each of the applicant’s medical conditions will be articulated later in these reasons in a consideration of the requirements of paragraph 9.2 of Direction 110, ‘Extent of impediments if removed’.

35. The Tribunal concludes that significant weight should be attached to this primary consideration in favour of refusing the grant of the visa.

36. Guided by the language of paragraph 8.5 of Direction 110 itself, the Australian community expects non-citizens to obey Australian laws whilst in Australia. It does so as a norm. Similarly, a refusal to grant a visa may be appropriate because of the offences committed which raise serious character concerns, as must be the case here. The applicant has committed a range of serious offences over many years. These offences include arson, family violence and making bomb threats.

37. It should not be forgotten that the gravity of the applicant’s offending has also been reflected in the several prison sentences that he has served. It is acknowledged that he has not been convicted of any offending since 2019. However, save for two comparatively short periods of release into the community the applicant has been either incarcerated or in immigration detention for the bulk of this time. He remains relatively untested given his brief time spent in the general community in recent years.

38. Both the applicant’s personal circumstances and that some of his more serious offending occurred over 20 years ago does not have the effect of diminishing the gravity of such offending or its nature and seriousness. The applicant has a long criminal history and unfortunately several terms of imprisonment. The significant term of imprisonment imposed on him by Judge Nixon in 2004 in the County Court of Victoria did not deter him from future offending.

39. There is also the question of the applicant’s alcohol dependency of which there must be serious concerns. If he were to relapse into drinking, particularly binge drinking, there must be a risk of reoffending. This is notwithstanding the applicant’s advancing years and the medical conditions from which he suffers. There is a particular risk of offending with respect to making unnecessary calls to emergency services and in particular the ‘000’ number which has been canvassed at length previously in these reasons. The applicant clearly has a propensity or tendency to make such unnecessary calls when he is affected by alcohol and make those calls frequently. Whilst one may debate the arithmetic it was certainly not unreasonable question to put to the applicant that during the period of his offending in July and August 2018, he made an average of 22 false calls a day. The significance of this offending and its frequency cannot be underestimated.

40. All in all, as a norm, therefore the Australian community would expect that significant weight should be attached to this primary consideration in favour of refusing the grant of the visa.

    Paragraph 9.1 of Direction 110 – Legal consequences of the decision

41. Paragraph 9.1.1 of Direction 110 ‘Non-citizens covered by a protection finding’ is applicable to the applicant’s circumstances. This is because on 2 April 2024 a delegate of the respondent found that the applicant satisfied the criteria in s 36(2)(a) of the Act with respect to India. Therefore, he is subject to a protection finding.

42. Relevantly, paragraph 9.1.1(1) of Direction 110 provides that where a protection finding has been made for a non-citizen, it indicates that non-refoulement obligations are engaged in relation to the non-citizen.

43. Further, paragraph 9.1.1(2) of Direction 110 provides that s 197C(3) of the Act ensures that, except in the limited circumstances specified in 197C(3)(c) of the Act, s 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means that the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under ss 501 or 501CA is made.

44. The upshot of this position is that by reason of the protection finding made as aforesaid, the applicant cannot be removed to India. It is not required or authorised.

45. There is presently no real prospect of the applicant being removed in the reasonably foreseeable future to any other country. Therefore, the permissible period of detention had reached its end.[49] Given the protection finding in favour of the applicant with respect to India, and that presently there is no other country to which there is a real prospect of him being removed to, he could no longer be detained pursuant to the operation of the provisions of s 189 of the Act.

    [49] BZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 415 ALR 254 [54] – [55].

46. Accordingly, as noted earlier, the applicant was released from immigration detention on 11 November 2024 consequent upon being granted a Bridging R visa (‘BVR’) pursuant to r 2.2 5AB of the Migration Regulations 1994. As the holder of a BVR and having been released from immigration detention he will be able to continue to remain in the community, subject to adherence with the conditions attached to that visa. This will remain the case until such time as there is a real prospect of his removal from Australia becoming practicable at a time in the reasonably foreseeable future.

1. As a lawful non-citizen and the holder of a BVR as aforesaid the applicant is under s 5(1) of the Act a ‘removal pathway non-citizen’. This is readily conceded by the respondent.

2. As a ‘removal pathway non-citizen’, there are several legal consequences for the applicant if the reviewable decision is affirmed. He can be removed to a third country. Further, if he has permission to enter and remain in a third country and that country is a party to a third-party reception arrangement within the meaning of s 198AHB of the Act, the BVR ceases to have effect. By reason of the BVR ceasing to have force and effect, in these circumstances, he would also be subject to further immigration detention. He would also satisfy the requirements of s 76AAA of the Act which provides for the ‘Cessation’ of certain bridging visas if the holder has permission to enter and remain in another country.

3. Another legal consequence of the decision not to grant the visa sought is that as a removal pathway non-citizen under s 197D(2) of the Act, if the Minister is satisfied that the applicant is no longer a person in respect of whom any protection finding within the meaning of subsections 197C(4),(5),(6) or (7) would be made they may make a decision to that effect. It provides as the introduction to the section, which states for a decision that a protection finding would no longer be made.

4. Should a third-party reception arrangement be established, the Minister is empowered to direct the applicant to do one or more of several things which are designed to facilitate his removal. Should a removal pathway non-citizen refuse or fail to comply with a removal pathway direction they may be held to have committed a criminal offence.[50]

   [50]The Act, s 199C.

5. The respondent contended that if the applicant were to be removed to a third country it is more likely to be New Zealand or the United States. This does require the Tribunal to engage in considerable speculation, which it cannot really do. The applicant submits that such a submission is ‘fanciful’. He contends that it is highly unlikely that either of those countries would enter into any third-party reception arrangement or agreement such that they would accept the applicant. Whilst it is speculative, the Tribunal agrees from the material before it and the recent political developments, particularly in the United States that it seems unlikely that this would occur. It seems more probable than not if the applicant is removed from Australia, it is unlikely to be to the United States and New Zealand.

6. There are several other potential legal consequences arising from the decision that the applicant points to. They do involve some degree of speculation. However, in all the circumstances the Tribunal considers that they are worth mentioning.

7. A third country may detain the applicant were he to be removed there. There are no guaranteed minimum standards of treatment if he were taken by a third country. Nothing would prevent a third country that might accept him from returning him, or more accurately in a legal sense, refouling him to India. If this were to happen it would, it is submitted, have a disastrous effect on his physical and mental health. Whilst this does involve some level of speculation the Tribunal acknowledges it as a distinct and real possibility.

8. Some other matters that were addressed by the applicant concerning the legal consequences of the decision should also be touched on. He contends that living in the future, possibly for the remainder of his life, with the prospect or threat of removal hanging over his head is inherently burdensome. Parallel with this submission, it was contended that he is a person who will ruminate over the possibility that he might be removed as long as the threat of it or its possibility remain. It was also described as having an oppressive emotional impact as a direct an immediate consequence of refusal under s 501(1). This is really a factual consequence rather than a legal consequence of the decision but nonetheless a distinct and real one in terms of its impact on the applicant. It is nonetheless acknowledged by the Tribunal.

9. The applicant also contended that a legal consequence of a decision to refuse to grant the visa sought is that he would not be able to satisfy ‘residence requirements’ of the National Disability Insurance Scheme Act 2013 (Cth) (‘the NDIS Act’). He would not therefore have access to the benefits of that scheme which would be of assistance in addressing several disability issues that he experiences. The respondent contends that without more evidence, including medical evidence, the prospect of him obtaining support under the NDIS scheme is too remote and to an extent speculative.

10. That he would not satisfy the residence requirements of the NDIS Act if the visa were not granted is a legal consequence of the decision. It is another thing all together whether he would be successful in making an application to be a participant in the scheme if he were otherwise qualified to do so. Therefore, it is a legal consequence the Tribunal should consider in undertaking an analysis of this other consideration of Direction 110.

11. The Tribunal now has to determine what weight to attach to this other consideration. The respondent contends that neutral weight should attach to it. On the other hand, the applicant submits naturally that very heavy weight should attach to it in favour of granting the visa sought.

12. The Tribunal has outlined above the significant legal consequences for the applicant of the decision. They will have a profound effect on him as has been explained. Whilst it does involve some level of speculation it is not too farfetched to contemplate him being removed to a third country with significant adverse consequences. For these reasons the Tribunal finds that heavy weight must attach to this other consideration in favour of the grant of the visa sought.

    Paragraph 9.2 of Direction 110 – Extent of impediments if removed

13. Paragraph 9.2(1) of Direction 110 provides that 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.

14. As previously noted, the applicant is presently 60 years of age.  The evidence before the Tribunal indicates that he is in poor health. The range of conditions from which he suffers, or experiences are as follows:

    (a)STEMI heart attack;

    (b)Hypertension;

    (c)Dyslipidemia;

    (d)Gastroesophageal reflux disease (GORD) gastritis;

    (e)Type 2 diabetes;

    (f)Ischemic heart disease;

    (g)Chronic Kidney disease (CKD) with proteinuria;

    (h)Macular degeneration in the eye;

    (i)Osteoarthritis with bursitis manifesting affecting multiple joints;

    (j)Degenerative spine;

    (k)Sciatica;

    (l)Chronic heel pain;

    (m)Cervical spondylosis;

    (n)Chronic generalised periodontitis; and

    (o)Mental health conditions, including anxiety disorder, depression and PTSD.

15. There was in evidence a Medical Certificate dated 9 January 2025 prepared by the applicant’s treating General Practitioner, Dr Bassi, which identifies themultiple medical issues from which he suffers.[51] It also identifies the ‘Allergies/Adverse reactions,’ which he experiences. The second and third pages of that document give precise details of the applicant’s ‘Current Medications.’ The contents of that Medical Certificate are referred to in their entirety.

    [51] JTB, A2, 48.

16. Additionally on several occasions the applicant has been diagnosed with a transient ischemic attack (‘TIA’). This was described as a mini stroke. Symptoms of this phenomenon can include facial droop and blurred vision. He has experienced TIA on several occasions over some years. The applicant has also had a stroke and a heart attack whilst he was in immigration detention.

17. The applicant contends that were he to be removed to India, or any other country he would be confronted with significant hurdles in re-establishing himself, maintaining basic living standards and generally surviving. This is particularly so given his age and the significant health conditions from which he suffers. There would be very little social or economic support available to him as he has not lived there for many years and has no social network there to speak of. In his evidence, he went so far as to say that if he were removed to India, it would be tantamount to a death sentence.

18. On the material before the Tribunal, it does not appear to be any substantial language or cultural barriers that would face the applicant were he to return to India.

19. There was some material before the Tribunal providing details of applicable conditions in India that the applicant would face were he to be returned there. Principally there was the ‘DFAT Country Information Report - India’.[52] The entirety of the document has been considered by the Tribunal. It is appropriate to briefly canvass some observations in that document that are relevant to the applicant and his present circumstances.

    [52] This document is known as ‘Department of Foreign Affairs and Trade, Country Information Report India (29 September 2023)’  or G58, 326.

20. With respect to the healthcare system in India, the DFAT report observes that the quality and availability of health services in India varies significantly. There is an inadequate supply of healthcare professionals such as doctors, nurses and paramedics to meet demand. A further observation was that the private health sector is expensive, usually urban and not necessarily of a very good quality. Another feature of the Indian healthcare system is that in general terms the richest states and larger wealthy cities provide better healthcare services than less-developed states and smaller cities. World-class facilities in the cities tend to cater to the upper class.

21. The DFAT report recorded that mental health workers are in short supply and certainly not sufficient to meet the demands made upon them. The bottom line is that it means not everyone who needs mental health care has access to it. It is more likely to be accessible in larger cities. Another aspect of mental health awareness that was commented on in the DFAT report was that there is still a stigma or shame associated with meeting a counsellor or psychologist in many parts of India and amongst Indians. It was further noted that mental health is not widely discussed in India, as a result mental health literacy is low.

22. Finally, the DFAT report stated that it was not aware of any evidence of mistreatment of returnees.

23. Given this evidence, it seems that the only conclusions that can be drawn are that were he to return to India he would face significant hurdles or barriers to re-establishing himself providing a reasonable living standard and obtaining an appropriate level of health and other professional care for the significant health issues he faces.

24. Similarly, the applicant contended if he were removed to a third country the prospects of being able to start all over again, without any contacts in such country, would be almost impossible. Without knowing which third country, he might prospectively be removed to, he cannot be certain that the extensive medical supports that he requires for the various conditions from which he suffers would be provided for. This is, in addition to the significant barriers he would face in reestablishing himself with basic living requirements such as accommodation, food, and basic necessities of life.

25. The respondent approaches this consideration in several ways. It was accepted that the applicant’s age, health, lack of social, medical and/or economic support available to him in India, would be such as to pose significant impediments were he to be removed there. Having made this observation nonetheless the respondent contends that presently there is no realistic prospect of him being returned there.

26. It is further conceded by the respondent that given the applicant’s, age, health conditions and lack of support,  were any third country prepared to accept him are such that they will also pose significant impediments to establishing himself. However, this observation is qualified by the obvious acknowledgement that without knowing which third country he might be removed to it is simply not possible for the Tribunal to assess whether any social, medical, economic or other support might be available to him. It clearly involves an exercise in speculation that the Tribunal cannot realistically undertake.

27. When one takes into account objectively the material before the Tribunal concerning this other consideration, significant weight must be placed upon it in favour of granting the visa that the applicant seeks.

    Paragraph 9.3 of Direction 110 – Impact on Australian business interests

28. This paragraph of Direction 110 states that decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

29. There was no evidence before the Tribunal that related to this other consideration. Therefore, no weight will be attached to it.

    CONCLUSION

30. The Tribunal has attached very heavy weight in favour of refusing to grant the visa sought under paragraph 8.1.1 of Direction 110 - The nature and seriousness of the conduct.

31. Under paragraph 8.1.2 of Direction 110 - The risk to the Australian community, for the reasons articulated, the Tribunal has attached significant weight to this primary consideration in favour of refusing to grant the of the visa sought.

32. With respect to paragraph 8.2 of Direction 110 - Family violence committed by the non-citizen, the Tribunal has concluded that very significant weight must be attached to this primary consideration in favour of refusing to grant the visa sought.

    Paragraph 8.3 of Direction 110 - The strengths, nature and duration of ties to Australia, the Tribunal has attached reasonably limited weight to this primary consideration in favour in favour of granting the visa sought.

33. With respect to paragraph 8.4 of Direction 110 - Best interests of minor children in Australia affected by the decision, the Tribunal has attached no weight to this primary consideration.

    Under paragraph 8.5 of Direction 110 - Expectations of the Australian community, the Tribunal has attached significant weight on this primary consideration in favour of refusing to grant the visa sought.

34. For the reasons articulated, the Tribunal has attached heavy weight in favour of granting the visa sought to the other consideration contained in paragraph 9.1 of Direction 110 - Legal consequences of the decision.

35. With respect to paragraph 9.2 of Direction 110 - Extent of impediments if removed, for the reasons explained, the Tribunal has attached significant weight to this other consideration in favour a grant of the visa sought by the applicant.

36. No weight has been attached by the Tribunal on the other consideration contained in paragraph 9.3 of Direction 110 - Impact on Australian business interests, because there was no evidence before the Tribunal articulating a claim with respect to it.

37. The Tribunal guided by Paragraph 7(2) of Direction 110 that generally primary considerations should be given greater weight than other considerations and that under Paragraph 5.2(2) of Direction 110 that the safety of the Australian community is the highest priority of the Australian Government, considers that the weight it has placed on primary considerations 8.1.1, 8.1.2, 8.2 and 8.5 of Direction 110, outweigh the weight that the Tribunal has attached in favour of granting the visa sought in paragraphs 8.3, 9.1 and 9.2 of Direction 110. In these circumstances the Tribunal for the reasons articulated above, exercising the discretion in s 501(1) of the Act refuses to grant the visa sought by the applicant.

    DECISION

38. Therefore, by reason of the foregoing matters the reviewable decision is affirmed.

I certify that the preceding 248 (two hundred and forty-eight) paragraphs are a true copy of the reasons for the decision herein of R Cameron, General Member.

......................[SGD]...........................

Associate

Dated: 3 February 2025

Date(s) of hearing:	16, 17 and 23 January 2025
Solicitors for the Applicant:	Victoria Legal Aid
Counsel for the Applicant:	Ms Julia Munster & Mr Lawson Bayly
Solicitors for the Respondent:	Mills Oakley
Advocate for the Respondent:	Rogan O'Shannessy