Vargas v Minister for Home Affairs

Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409 (11 September 2019)
Division:GENERAL DIVISION
File Number(s): 2019/3735
Re:Mauricio Vargas
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:11 September 2019
Place:Brisbane

The decision under review is set aside and substituted such that the discretion in s 501CA(4)(b)(ii) of Migration Act 1958 (Cth) to revoke the mandatory cancellation of the Applicant’s visa be exercised.
..........................[SGD]..............................................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of Class BC Subclass 100 Partner visa – where Applicant does not pass the Character test – sentenced to term of imprisonment for 12 months or more – whether there is another reason to revoke the cancellation decision – application of Direction 79 – consideration and application of Primary and Other Considerations in Part C of Direction 79 – decision set aside and substituted
Legislation
Criminal Code Act 1899 (Qld)
Domestic and Family Violence Protection Act 2012 (Qld)
Migration Act 1958 (Cth)
Penalties and Sentencing Act 1992 (Qld)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
DKXY v Minister for Home Affairs [2019] FCA 495
Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
PNLB v Minister for Immigration and Border Protection [2018] AATA 162
Saleh v Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
TGXY and Minister for Home Affairs [2019] AATA 757
Waits and Minister for Immigration, Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Contents
REASONS FOR DECISION
Background
Issues
Does the Applicant pass the Character Test?
Is there “another reason” why the cancellation of the Applicant’s visa should be revoked?
Primary Consideration A – Protection of the Australian Community
The Offending History in Australia:
The Nature and Seriousness of the Applicant’s Conduct to Date
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Her Honour, Judge Richards DCJ: Sentencing Remarks
The “Information Notice Security Classification Form”
The Delegate of the Minister (Decision dated 18 June 2019):
Associate Professor James Freeman (“Dr Freeman”) (Report dated 10 December 2018):
Dr Freeman (Addendum Report: 25 July 2019)
Evidence in Chief of Dr Freeman
Cross-examination of Dr Freeman
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Conclusion: Primary Consideration A

Primary Consideration B: The Best Interests of Minor Children in Australia
The Applicant’s evidence
The evidence of the Applicant’s mother
The impact (if any) of the absence of any evidence from the Applicant’s former spouse/mother of the infant children
Paragraph 13.2(4) – Direction – Factors
Conclusion: Primary Consideration B

Primary Consideration C – The Expectations of the Australian Community
The relevant paragraphs in the Direction
Factual circumstances relevant to this Primary Consideration C
The Evolution of the Australian Community’s “Expectations”
Analysis – Allocation of Weight to this Primary Consideration C
Conclusion: Primary Consideration C

Other Considerations
(a) International non-refoulement obligations
(b) Strength, nature and duration of ties
(c) Impact on Australian business interests
(d) Impact on victims
(e) Extent of impediments if removed

Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Decision
REASONS FOR DECISION
Senior Member Theodore Tavoularis
11 September 2019
BACKGROUND

This matter relates to an application for review filed by Mauricio Vargas (“the Applicant”) on 24 June 2019. The decision under review is the decision of a delegate of the Minister for Home Affairs (“the Minister” or “the Respondent”) dated 19 June 2019. The delegate’s decision pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) was to not revoke the mandatory cancellation of the Applicant’s visa.[1]
[1] The subject visa that was cancelled was a Class BC Subclass – Partner visa.
The Tribunal has jurisdiction to review the decision of the delegate pursuant to s 500(1)(ba) of the Act.
The Applicant is a 24 year old citizen of Colombia. Movement records indicate that he first arrived in Australia on 19 August 2012 and has not departed Australia since that date.[2] The Applicant has resided in Australia on a continuous basis from the date of his arrival.
[2] Exhibit 7, s501 G Documents, G2, page 149.
Upon his arrival, he was granted a Class UF Subclass 309 Partner visa.[3] The Applicant continued to hold this class of visa until 5 March 2014, when he became the holder of a Class BC Subclass 100 Partner visa. It is this latter visa which was mandatorily cancelled by the Minister’s delegate in the decision under review dated 19 June 2019.
[3] Ibid.
The Applicant has a limited criminal history in Australia involving one isolated appearance for sentencing in the one court on the one day, that day being 6 June 2018[4].
[4] Ibid, G2, pages 30-31.
As mentioned earlier, on 6 August 2018, a delegate of the Minister initially notified the Applicant that his visa had been cancelled pursuant to s 501(3A) of the Act. The cancellation occurred on the basis of the Applicant having a “substantial criminal record” for the purposes of the Act as he had been (1) sentenced to a term of imprisonment of more than 12 months; (2) was serving a sentence of imprisonment on a full-time basis in a custodial institution and (3) for an offence against a law of the Commonwealth, a State or Territory.
On 7 August 2018, the Applicant submitted a request for revocation of the cancellation decision.[5] As mentioned earlier, on 19 June 2019, the Minister’s delegate, pursuant to s 501CA(4) of the Act, decided not to revoke the visa cancellation.
[5] Ibid, G2, pages 38-39.
There followed the filing of the present application for review in this Tribunal on 24 June 2019.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
There is no question that the Applicant made the representations required by s 501CA(4)(a). Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, I must refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[6]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word “may” in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[7]
[6] [2018] FCAFC 151.
[7] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; and
(b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[8] I will address each of these grounds in turn.
[8] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant, helpfully, “…accepts that he does not meet the character test but there are other reasons why the mandatory cancellation should be revoked.”[9] This concession was appropriately made: on 6 June 2018, the Applicant was sentenced to respective custodial terms of imprisonment totalling three years and nine months for approximately 12 specific offences:
·Assault in a domestic violence context (x3 charges), committed on 20 June 2017 (twice) and 20 July 2017;
·Assault occasioning actual bodily harm in a domestic violence context (x2 charges), both committed on 20 June 2017;
·Contravention of a domestic violence order (x2 charges), committed on 20 August 2017 and 26 August 2017;
·Unlawful stalking/contravenes/threatens to contravene domestic violence order, committed between 20 June 2017 and 22 September 2017;
·Assault occasioning actual bodily harm in a domestic violence context (x2 charges), both offences committed on 26 August 2017;
·Fraud involving the obtaining of property by deception (x20 charges), committed between 19 August 2017 and 25 August 2017; and
·Stealing (one charge) committed on 15 September 2017.
[9] Exhibit 1, Applicant’s Statement of facts, Issues and Contentions (“SFIC”), page 1, paragraph [4].
For these offences, the Applicant received a head sentence of three years’ imprisonment to be suspended after serving 12 months in actual custody for an operational period of five years. Importantly, what matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they actually served.[10]
[10] See Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409, 415-416.
Consequently, I am satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) for the mandatory cancellation of his visa to be revoked.
IS THERE “ANOTHER REASON” WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.[11] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[12]
[11] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79. Direction 79 is a Ministerial direction made pursuant to s 499 of the Act and must be applied by decision makers, including this Tribunal, on and from 28 February 2019.
[12] The Direction, sub-paragraph [7(1)(b)].
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
(a) Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia;
(c) Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(a) International non-refoulement obligations;
(b) Strength, nature and duration of ties;
(c) Impact on Australian business interests;
(d) Impact on victims;
(e) Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[13]
Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non-refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[14]
[13] [2018] FCA 594.
[14] Ibid at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(i)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(ii)The Australian community expects that the Australian government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(iii)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia;
(iv)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(v)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(vi)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(vii)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. In return, this paragraph stipulates an expectation that those non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph points out to decision-makers that mandatory cancellation without notice of certain non-citizen prisoners is consistent with the abovementioned principle that (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country and (b) that those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The totality of the Applicant’s offending history can be gleaned from his National Police Certificate which appears in the material.[15] The totality of the offending history can be summarised as follows:
The Offending History in Australia:
[15] Exhibit 7, s501 G Documents, G2, pages 30-31.

Court

Court Date

Offence

Court Result

Brisbane District Court

6 June 2018

Fraud pursuant to s 408C(1)(D) of the Queensland Criminal Code[16] (20 charges).

On all charges, conviction recorded but not further punished.

Brisbane District Court

6 June 2018

Contravention of domestic violence order pursuant to s 177(2)(B) of the Domestic and Family Violence Protection Act 2012 (Qld) (two charges).

Stealing pursuant to s 398 of the Queensland Criminal Code (one charge).

On all charges, conviction recorded; sentenced to a custodial term of imprisonment of 3 months.

Brisbane District Court

6 June 2018

Assault in a domestic violence context pursuant to s 335 of the Queensland Criminal Code (charged by way of indictment pursuant to s 534(3A) of the Queensland Criminal Code) (three charges).

On all charges, conviction recorded; sentenced to a custodial term of imprisonment of 6 months.

Brisbane District Court

6 June 2018

Assault in a domestic violence context occasioning bodily harm, pursuant to s 339(1) of the Queensland Criminal Code (charged by way of indictment pursuant to s 564(3A) of the Queensland Criminal Code) (two charges).

On all charges, conviction recorded; sentenced to a custodial term of imprisonment of 12 months.

Brisbane District Court

6 June 2018

Assault in a domestic violence context occasioning bodily harm, pursuant to s 339(1) of the Queensland Criminal Code (charged by way of indictment pursuant to s 564(3A) of the Queensland Criminal Code) (two charges).

Unlawful stalking, actual and threatened contravention of domestic violence order, punished pursuant to s 359E(1)&(3) of the Queensland Criminal Code (charged by way of indictment pursuant to s 564(3A) of the Queensland Criminal Code) (one charge).

On all charges, conviction recorded; sentenced to a custodial term of imprisonment of two years, to be suspended for an operative period of five years after serving 12 months in actual custody.

[16] Criminal Code Act 1899 (Qld).
The Nature and Seriousness of the Applicant’s Conduct to Date

When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
(a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c) …
(d) Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f) The cumulative effect of repeated offending;
(g) …
(h) …
(i) …
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are to be viewed very seriously. Even a cursory review of the Queensland Police Service court brief demonstrates the unacceptable nature of the Applicant’s violent offending towards his former spouse. With reference to that court brief, the following details of violent offending emerge:
“CHARGE 1 of 11 [CC] 335&47(9) Common Assault
…[The former spouse[17]] states that as she was doing her makeup the defendant grabbed all of her makeup brushes and started to throw them into the bathroom sink. [The former spouse] states that the defendant then briefly smiled at her before grabbing her face with his right hand and pushing her head into the tiled wall of the step in the bath/shower.
[17] For the purposes of these reasons, “the former spouse” refers to the victim of the Applicant’s violent offending and the mother of the two infant children to be discussed later in these reasons.
…
CHARGE 2 of 11 [CC] 335&47(9) Common Assault
[The former spouse] further states that she fell into the bath, and at this time the defendant has picked her up by grabbing her arms and pulled her out of the bath. [The former spouse] states that she fell to the ground and continued to cry. [The former spouse] states that the defendant then grabbed her by the legs and pulled them out from under her which caused her to fall slightly onto her back. [The former spouse] states the defendant then grabbed her legs and dragged her though [sic] the house into the hallway letting go just outside the main bedroom doorway.
…
CHARGE 3 of 11 [CC] 339(1)&47(9) Assaults occasioning bodily harm
[The former spouse] states that she stood up briefly in the doorway when the defendant pushed her into the bedroom where her shins collided with the end of the bed. [The former spouse] states that this caused her immediate and significant pain which caused her to fall to the ground where she states she tried to rub her shins where she was experiencing severe aching pain from where they had hit the solid bed frame. [The former spouse] states that this pain continued for a prolonged period of time following the assault.
…
CHARGE 4 of 11 [CC] 339(1)&47(9) Assaults occasioning bodily harm
[The former spouse] then states that the defendant grabbed her on the face again using his right hand and pushed it into the rendered brick interior wall opposite the bed she had previously collided with. [The former spouse] states this impact caused her to become disoriented and stumble around the bedroom where she struggled to recall much of what occurred whilst she tried to regather herself. [The former spouse] further states that the impact into the solid concrete wall caused her immediate and significant pain. [The former spouse] further states that the resultant injury was intense aching akin to a severe headache or migraine.
…
CHARGE 5 of 11 [CC] 339(1)&47(9) Assaults occasioning bodily harm
[The former spouse] states that the next thing she felt was pressure being placed on the back of her head which felt like a large flat object like a foot on the point of the back of her skull. [The former spouse] states that her head was then forced towards the ground where it impacted with the floor. [The former spouse] states that her head started to swell up immediately and that the aching headache that had become present from the previous assault became far more intense. Following this incident [the former spouse] attended to Royal Brisbane and Women’s Hospital where she was advised that she had suffered a concussion as a result of the impact to her head. [The former spouse] states that the headache and pains [sic] experiences as a result of the injury continued for a number of days following the assault.
…
CHARGE 6 of 11 [CC] 339(1)&47(9) Assaults occasioning bodily harm
…
[The former spouse] states they walked up Bonnet Parade intending to walk up to the Mango Hill shops but did not make it that far. [The former spouse] states that she stopped on the side of the road and told the defendant she was going back home. At this time [the former spouse] recalls seeing the defendant in her peripheral vision and a swinging arm came towards her head. [The former spouse] states that she then recalls being punched in the left side of her face by the defendant. [The former spouse] states that the punch caused her immediate and significant pain to the left side of her face. [The former spouse] further stated that the [sic] almost a month after the assault she still experiences pain and discomfort in her jaw and cheek area which includes a small lump which is formed on the point of her cheekbone under the eye which she states was not present prior to the assault. [The former spouse] states that some days after the injury became worse and the bruising was severe.
…
CHARGE 7 of 11 [CC] 339(1)&47(9) Assaults occasioning bodily harm
[The former spouse] states that she walked back to her house with the defendant. [The former spouse] states that upon approaching the driveway the defendant stood between her and the front door. [The former spouse] states that she banged loudly on the garage door to get her sisters attention inside the dwelling. At this time [the former spouse] states, she observed pure anger in the defendant’s eyes. [The former spouse] states that she then recalls laying on the ground some three metres where she was standing. [The former spouse] states that she landed on her arm and that the pain was immediate and severe. She stated that she was initially unable to move the arm at all and that the sensation was foreign to her and unlike any other pain she had experienced in her arm before, to such an extent that she was under the mistaken belief that she had broken her arm. [The former spouse] states that she attempted to push herself up off the ground but the effected [sic] arm buckled under her own weight which further added to her belief that the arm had been broken. [The former spouse] states that she experienced ongoing pain and weakness in her arm for days after the assault which was similar to significant muscle fatigue.
…
CHARGE 10 of 11 [CC] 320A(1)&47(9) Torture – Domestic Violence Offence
… [The former spouse] further alleged that the conduct engaged in by the defendant has been to such an extent that it has caused for [sic] severe physical, mental, psychological, and emotional pain and suffering..
Over the course of their relationship, [the former spouse] states that the defendant would regularly assault her and physically abuse her. Some of these acts have been so severe that they have caused for [sic] [the former spouse] to be hospitalised with a concussion. [The former spouse] states that during the relationship the defendant would often grab her and force her to go to places she did not want to go. [The former spouse] states that on these occasions she has broken down crying as she knows that she cannot get away from the defendant, and fears that she will likely be assaulted by him.
[The former spouse] further states that the defendant has utilised electronic devices such as mobile phones to contact her by text message and email. Throughout the relationship the defendant has spoken to [the former spouse] in such a way that she has felt devalued, belittled. On one occasion, the defendant said to [the former spouse] that whilst she is sleeping in a small bed in a small house with her mother, he was sleeping with other women.
[The former spouse] states that the defendant would also continually torment her about her brother’s death which occurred in 2015 in sudden and unforeseen circumstances…[The former spouse] states that the defendant has brought up her brothers death on numerous occasions knowing that it would upset her and cause her emotional suffering.
[The former spouse] further states that the defendant would also continually bring up her history of being sexually abused as a child. [The former spouse] states that in times of anger the defendant would often make fun of her and remind her of this period of her past which has caused her ongoing psychological pain and suffering.
…
[The former spouse] states that the ongoing acts of domestic violence that she experienced such as controlling behaviour made it difficult for her to remove herself from the relationship…
[The former spouse] states that these acts were intentional and to fulfil the sole purpose of hurting her as she was continually trying to remove herself from the relationship. [The former spouse] states that the separation has caused for [sic] the defendant’s jealousy, and aggression to increase and when she does not contact him the nature of the abuse worsens.
…”[18]
[18] Exhibit 6, Summons Material Relied Upon by the Respondent, SM2, pages 17,18 and 19.
In fairness to the Applicant, it should be pointed out that he does not appear to have been sentenced for this particular “Torture” offence. As best as I understood the material, it does not appear in the National Criminal History Check or the Statement of Agreed Facts provided by the Applicant annexed to the Applicant’s Reply.[19] I am proceeding on the basis that this specific offence was not part of the list of counts before Her Honour Judge Richards when sentencing the Applicant. That said, I do not think the factual summary appearing in the summonsed material relating to this “Torture” allegation should be ignored. While not determinative, it nevertheless serves to contextualise the Applicant’s domestic violence offending against his former spouse.
[19] See Exhibit 3, Applicant’s Reply and Exhibit 4, Additional Material accompanying the Applicant’s Reply, (item 4a therein).
There can surely be no argument that any objective review of the factual circumstances surrounding the Applicant’s offending dealt with by the Brisbane District Court for sentencing on 6 June 2018 are anything other than (1) clearly violent offences and (2) very serious in nature. It can be readily noted from the Applicant’s criminal history that his offending has involved at least three counts of common assault and four counts of assault occasioning bodily harm. As observed by the learned judicial sentencing officer on 6 June 2018:[20]
“You have been in custody for a significant amount of time, but the length of time involved in this offence means that this is, in my view, quite serious offending, even for someone with no previous convictions.”[21]
[My underlining]
[20] Her Honour Justice Richards, District Court of Queensland.
[21] Exhibit 7, s501 G Documents, G2, pages 35-36. It should be noted that pursuant to s 159A of the Penalties and Sentencing Act 1992 (Qld), Her Honour declared that the 258 days the Applicant spent in pre-sentence custody, from 21 September 2017 to 5 June 2018, be deemed time already served under the head sentence of three years. Therefore, upon his sentencing on 6 June 2018, the Applicant still had the period from then until 20 September 2017 to serve in actual custody, until commencement of the suspended two-year balance of the head custodial term which was ordered to remain operative for a period of five years.
The totality of the Applicant’s violent offending towards his former spouse is both appalling and very serious. Having regard to this sub-paragraph (a) of paragraph 13.1.1(1) of the Direction, I am of the view that the clearly violent circumstances of the totality of the Applicant’s offending for which he was sentenced in June 2018 must be viewed very seriously.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction stipulates that crimes of a violent nature against women or children are to be viewed very seriously, regardless of the sentence imposed. The Applicant was convicted of multiple counts of various forms of assault against his former spouse. There is no question that the Applicant’s violence towards his former spouse constitutes “…crimes of a violent nature against women…”. Accordingly, the totality of the Applicant’s violent offending against his former spouse can only militate in favour of a finding – pursuant to this subparagraph (b) of paragraph 13.1.1(1) of the Direction - that the nature of the Applicant’s conduct ought to be categorised as very serious.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker to the sentence(s) imposed by the courts for a crime or crimes of a non-citizen/applicant, with specific reference to sub-paragraph (b) of paragraph 13.1.1(1) of the Direction. The imposition of a custodial term is regarded as the last resort in any reasonably applied sentencing process. Custodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence(s) committed by an applicant.[22]
[22] See PNLB v Minister for Immigration and Border Protection [2018] AATA 162 at paragraph [22]; and Saleh v Minister for Immigration and Border Protection [2017] AATA 367 at paragraph [50].
It cannot be denied that the sentencing regime imposed upon the Applicant in June 2018 represents, in cumulative terms, a significant period of custodial time amounting to three years and nine months’ imprisonment. To my mind, that regime of sentencing, in itself, attracts an adverse application of this sub-paragraph (d) of paragraph 13.1.1(1) of the Direction, and is supportive of a finding that the sentences imposed by the courts across this Applicant’s albeit brief offending history are demonstrative of the very serious nature of his offending.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of non-citizen’s offending and whether there is any trend of increasing seriousness. To an extent, the investigatory exercise required by this sub-paragraph (e) largely mirrors that required in an application of the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of offending is usually analogous to the regime of sentencing imposed for it. For present purposes, it cannot be said that the Applicant has a gradually evolving history of offending such that it commenced with relatively minor and non-indictable offending before graduating to more significant and indictable offences of the type for which he was sentenced on 6 June 2018.
Be that as it may, there seems little doubt that while there is no element of frequency per se in his offending, it is safe to conclude that his offending was of a very serious nature from the outset. However, the level of weight attributable to this specific sub-paragraph (e) must be tempered by the reality that the Applicant’s offending arose from an identifiable “bad phase” of offending resulting from his now concluded domestic relationship with his former spouse. As I comprehend his offending history, the totality of his offending for all counts that came before Her Honour Judge Richards for sentencing in June 2018 had a start date of approximately 1 May 2017 and an end date of 22 September 2017. This is a period of less than five months.
While also not necessarily frequent against multiple victims, the Applicant’s offending was nevertheless sufficiently frequent against his former spouse for at least this approximately five month period. Although not charged for anything prior to May 2017, it seems his adverse conduct towards her was present within the confines of their largely tempestuous relationship prior to May 2017.
Thus, an application of this sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points to an inevitable finding that, whilst the Applicant’s offending was not necessarily frequent over a particularly long period of time, it was necessarily frequent both across the totality of his relationship with the former spouse and, certainly, markedly intensified both in terms of frequency and seriousness during the abovementioned approximately five month period between May and September 2017. On balance, I am of the view that this sub-paragraph (e) militates in favour of non-revocation, but should be tempered against the relative brevity of its offending and its isolation to the single victim. I accordingly allocate a moderate level of weight to this sub-paragraph (e) in favour of non-revocation.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending. The Applicant first came to this country in August 2012. He had been here for approximately five years until his incarceration in September 2017. His term in criminal custody expired in September 2018 whereupon he was taken into immigration detention. Thus, the Applicant’s very serious criminal offending against his former spouse has caused him to be removed from the mainstream Australian community – be it in criminal custody or in immigration detention – for two years, representing about a quarter of his time in this country.
The further cumulative effect of the Applicant’s offending can also be noted in the balance of the offending for which he was punished in June 2018. The above-described offending demonstrates a lack of respect for the personal rights of his former spouse. His additional offending displays both a lack of respect for lawful authority and the property rights of others. In terms of the former, there are at least two counts of the Applicant refusing to respect lawful authority, be it in the form of the contravention of a domestic violence order or the unlawful stalking of his former spouse. Despite having been served with a domestic violence order that stipulated he was not to approach the former spouse within 100 metres of where she resided or worked, he nevertheless did so. Despite knowing, via the domestic violence order, that he was not to contact his former spouse, he harassed her via text messages, phone calls and emails containing repeated threats of violence. The material discloses that he sent her:
“…up to 80 notifications in one day (made up of missed calls, emails and text messages from [him])…the content of these messages varies from persistent attempts to get back together to threats to attend her home address and rape her.
[The former spouse] also outlines on three similar occasions where the defendant has contacted her whilst loitering near her house, one being a time that the defendant made reference to particular articles of clothing that [the former spouse] was wearing. [The former spouse] states that she again believes the defendant was nearby and had knowledge of what she was wearing, and that this was also sent to scare her and have her know that he was close by. On another similar occasion, the defendant has tapped on [the former spouse’s] window and then sent a picture message of the house in darkness with cars belonging to people home at the time in the driveway. [The former spouse] states that the defendant would ask who the cars belong to, she believed this was because the defendant was suspicious that it belonged to someone she was dating…”[23]
[23] Exhibit 6, Summons Material Relied Upon by the Respondent, SM2, page 18, see Charge 8 of 11 and Charge 9 of 11.

The cumulative effect of the Applicant’s offending can also be understood by having regard to the nature of the factual circumstances surrounding the abovementioned “Charge 10 of 11…Torture – Domestic Violence Offence”.[24] To my mind, this narrative appearing that summonsed material relating to this allegation is demonstrative of the cumulative or overarching effect on the former spouse’s overall state of both physical and mental wellbeing. This charge contains the word “Torture” for a reason. The Applicant’s domestically violent conduct extended to him intentionally upsetting, distressing and verbally abusing his former spouse by trawling through her past and tormenting her about (1) her brother’s death in 2015 in sudden and unforeseen circumstances, which the Applicant knew had caused her a great deal of emotional distress; and (2) her experience of being sexually abused as a child, which she had seen fit to communicate to the Applicant, presumably based on the once loving nature of their relationship. Thirdly, the Applicant exerted controlling behaviour over his former spouse such that he knowingly made it difficult for her to remove herself from the relationship.
[24] Please see my comments paragraph [30] of these Reasons regarding the “Torture” charge which, as best as I understood the material, ultimately amounted to an allegation, not a formal charge.
A further aspect of the cumulative effect of the Applicant’s offending can be noted in his charges for stealing and fraud. On the one hand, the learned sentencing officer, Her Honour Judge Richards, regarded the Applicant’s fraud offences as “fairly minor”[25] and, indeed, there is no mention of the charge of stealing in Her Honour’s sentencing remarks at all. In relation to this category of offences, Her Honour convicted the Applicant but did not further punish him beyond the regime of sentencing for the totality of the remaining offences. This category of offending involved (1) the Applicant using his then-housemate’s debit card without permission to make a number of online purchases, and (2) an act of what can only be described as impulsive shoplifting. The totality of the fraud/stealing conduct arising from the 20 unauthorised transactions relating to the victim’s debit card amounted to $538.31. While it is accepted that the quantum of the fraud is not significant, the Applicant’s conduct is nevertheless redolent of a disposition towards refusing to accept the property rights of others.
[25] Exhibit 7, s 501 G Documents, G2, page 35, line 3.
Thus the cumulative effect of the Applicant’s offending can be seen from at least three aspects. First, his offending has not been respectful of the personal rights of his former spouse insofar as her own personal space and rights are concerned. Second, his offending has caused him to fail to respect the property rights of others as can be evidenced by the wanton and irresponsible use of someone else’s debit card. Third, and perhaps most concerningly, those who investigated the Applicant’s conduct and ultimately charged him became cognisant of his role in manipulating and controlling the former spouse’s capacity to both endure her relationship with him and, ultimately, to end the relationship with him.[26]
[26] Please see my comments paragraph [30] of these Reasons regarding the “Torture” charge which, as best as I understood the material, ultimately amounted to an allegation, not a formal charge.
Accordingly, the application of this sub-paragraph (f) to the present factual matrix gives rise to the finding that the cumulative effect of the Applicant’s repeated offending, is such as to render it very serious. The weight that can be allocated to this specific factor ought to be ameliorated by (1) the relatively short five month scope of the duration of the offending and (2) its isolation to, strictly speaking, two victims – the former spouse and the former housemate. I therefore allocate a moderate level of weight to this sub-paragraph (f).
Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs (a), (b), (d), (e) and (f), of paragraph 13.1.1(1) of the Direction are relevant, I am of the view that the Applicant’s conduct is readily capable of characterisation as “very serious”. Upon application of the respective weights I have attributed to the relevant sub-paragraphs of paragraph 13.1.1(1) of the Direction, I find that the nature and seriousness of the Applicant’s conduct to date is of a very serious nature.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the two following factors on a cumulative basis:
(i)Paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)Paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
In the hearing before me, the primary independent and expert witness who provided oral evidence informing the Tribunal about the Applicant’s risk of re-offending was Associate Professor James Freeman. His two reports are part of the exhibited material and are dated 10 December 2018[27] and 25 July, 2019,[28] respectively. It should also be noted that during the history of this matter, three other people have made findings about the Applicant’s risk of re-offending. They comprise: (1) the author of an “Information Notice Security Classification Form” prepared for the Queensland Corrective Services Commission a couple of weeks after the Applicant was sentenced in June 2018[29]; (2) the sentencing remarks of the learned sentencing judge, Her Honour Justice Richards DCJ[30]; and (3) the Minister’s delegate in the decision under review.[31] I will summarise each of these findings in turn.
[27] Exhibit 7, s501 G Documents, G2, pages 73-86.
[28] Exhibit 2c.
[29] Exhibit 7, s501 G Documents, G2, pages 94-101.
[30] Ibid, pages 34-36.
[31] Ibid, pages 16-27.
Her Honour, Judge Richards DCJ: Sentencing Remarks
While not making findings about the Applicant’s risk of recidivism, Her Honour nevertheless noted the following in her sentencing remarks:
“HER HONOUR: I take into account the fact that you have pleaded guilty. You were 22 at the time of the offending: you are only 23 now. It was an early plea of guilty and you have no previous convictions and those are all significant matters. You were in full-time employment and that, of course, means that you were a productive member of the community. And whilst you have been in custody, you have been undertaking courses to try and better yourself and I also take that into account.”[32]
[32] Ibid, page 35, lines 32-39.
Given that the Applicant’s appearance before Judge Richards was his first and only sentencing episode or engagement with the law enforcement process of any description, Her Honour could hardly be expected to engage in any predictive exercise about the Applicant’s risk of recidivism. Her Honour, in my respectful view, sentenced the Applicant as she found him on that day without regard to any preceding lengthy or other offending history attributable to him. While not necessarily determinative of anything, it is clear Her Honour thought the Applicant had positive prospects were he to complete his sentence and be returned to the community.
In terms of expressing a view about the Applicant’s insight into his offending, Her Honour made reference to his breaches of restrictive orders previously imposed on him and noted, with an appreciable measure of gloom:
“…The stalking involved you texting up to 80 times; appearing at the complainant’s house when you were not wanted. The assaults, which involved injuries to her, which I have photos of and, of course, a significant amount of mental anguish that she has suffered, as detailed in her victim impact statement. Despite being charged with stalking, you continued to write to her when you were in custody. That is not particularly demonstrative of remorse, Mr Vargas, because it would be obvious to anyone that if someone charges you with stalking, they do not actually want to have contact with you.”[33]
[33] Ibid, lines 7 – 14.
The “Information Notice Security Classification Form”
About three weeks after the Applicant’s sentencing on 6 June 2018, the Queensland Corrective Services Commission assessed him for security classification purposes. The essential components of that assessment for present purposes are these:
“…
Reasons for security classification:
…
I have decided to classify you, Mauricio VARGAS… a HIGH security classification.
…
I determined that you require the level of structured supervision afforded to prisoners managed as a high security for the following reasons:
(a) The nature of the offence for which the prisoner has been charged or convicted:
I considered the offences for which you are currently imprisoned to be non-violent in nature.
…
(b) The risk of the prisoner escaping, or attempting to escape, from custody:
There is currently no evidence before me to suggest you pose an elevated risk of escaping or attempting to escape lawful custody.
(c) The risk of the prisoner committing a further offence and the impact the commission of the further offence is likely to have on the community:
You have been assessed as having a Risk of Reoffending Probation Parole Version (RoR-PPV) score of 13 which indicates you fall into the category of prisoners who pose a moderate to high risk of further general offending. Given your history of violent behaviour and in the absence of having not completed specialized violence programs there is no evidence before me to suggest your risk of violence has abated. Further based on the harm caused by your previous violence I am of the view that any future violence caused by you will cause considerable harm to the community. You present with minimal Queensland Person History which commenced in 2017 at the age of 22. It reflects the offences you are currently imprisoned for.
(d) The risk the prisoner poses to himself, other prisoners, staff members and the security of the corrective services facility:
I gave consideration to your violations history and recorded case notes which reflect positive and compliant custodial behaviour. Based on this information I consider you do not pose a risk to others and the safety and security of the corrective services facility at this time.
…
Delegate: [Name redacted]
Date: 28/06/2018”[34]
[34] Ibid, pages 94-95.
It is, with respect, somewhat difficult to follow the trail of thought of the author of this document. On the one hand, the author purports to classify the Applicant as a “HIGH security classification”. Yet later in the report, the author says that the offences for which the Applicant was then imprisoned were “non-violent in nature”. Still later in the document the author says the Applicant “falls into the category of prisoners who pose a moderate to high risk of further general offending.” This, in circumstances where, in the following paragraph, the author says “Based on the information I consider you do not pose a risk to others and the safety and security of the corrective services facility at this time”. I also note the author of this document was not made available for cross-examination and their evidence remains untested. In these circumstances, I do not consider this document to make any determinative contribution to any aspect of weight attributable to this Primary Consideration A.
The Delegate of the Minister (Decision dated 18 June 2019):
In making an assessment of the Applicant’s risk to the Australian community, the delegate had regard to the 2 limbs of paragraph 13.1.2 of the Direction – nature of harm and risk of recidivism. The delegate noted the Applicant’s:
“…history of criminality is marked by repeated instances of personal violence against domestic victims. Should Mr MENDIETA VARGAS re-offend in a similar manner, it may result in very grave consequences for members of the Australian community, including harm to the person both physical and psychological.”[35]
[35] Ibid, page 21, paragraph [28].
The delegate took a number of factors into account including the Applicant’s expression of remorse, his acceptance of responsibility for his criminal wrongdoing and for the impact of his criminal behaviour upon his family, friends and the community.[36] The delegate also recognised the Applicant’s self-assessed risk of re-offending “is zero”[37] and took into account Associate Professor Freeman’s finding that the Applicant was in the low risk category of re-offending.[38]
[36] Ibid, paragraph [31].
[37] Ibid, page 22, paragraph [33].
[38] Ibid, paragraph [34].
The delegate noted the Applicant’s positive engagement with the prison system,[39] his exemplary conduct during his custodial term[40] and his strong support network in Australia,[41] as well as his solid history of employment in Australia prior to finding himself in criminal custody and then immigration detention.[42] His efforts towards rehabilitation[43] and his convincing employment prospects were also noted.[44]
[39] Ibid, paragraph [37].
[40] Ibid, paragraph [38].
[41] Ibid, paragraph [39].
[42] Ibid.
[43] Ibid, paragraph [41].
[44] Ibid, paragraph [39].
In terms of an ultimate finding, the delegate said:
“In all, I have weighed Mr MENDIETA VARGAS’ statements and rehabilitative prospects against the risk to the community and actual harm should he re-offend in the same manner. I am not satisfied that these factors are sufficient to protect against recidivism and I find there remains a risk, albeit a low risk, that Mr MENDIETA VARGAS will re-offend. I consider that a [sic] further offending of a similar nature by Mr MENDIETA VARGAS, particularly involving personal violence against domestic victims could result in psychological and physical harm to member [sic] of the Australian community as well as imposing direct cost to the community.”[45]
[45] Ibid, page 23, paragraph [42].
Associate Professor James Freeman (“Dr Freeman”) (Report dated 10 December 2018):
Dr Freeman examined the Applicant on two separate occasions. The first examination occurred on 25 July 2018, in person, while the Applicant was still in criminal custody at the Borallon Training and Correctional Centre in South East Queensland. The second examination occurred in 23 July 2019, by telephone, while the Applicant was in immigration detention at the Yongah Hill facility near Perth, Western Australia. Consequent upon those two examinations, Dr Freeman produced two reports: the first is dated 10 December 2018 and the second, an “addendum report”, is dated 25 July 2019.
In the earlier of his two reports, Dr Freeman summarised the Applicant’s offending history, his expression of remorse, and the complete absence of any previous engagement with psychological treatment or rehabilitative processes, be they in the form of attending consultative sessions or submitting to a psychopharmacological treatment regime.
Dr Freeman conducted a thorough clinical assessment and noted the following:
“Mental State Examination
6.1 There were no observable abnormalities in the seven factors of the MSE: general appearance, psychomotor behaviour, mood and affect, speech, cognition, thought patterns and level of consciousness. The applicant did not attempt to engage in any form of self-report bias, including impression management. Rather, he openly discussed his behaviour.”[46]
[46] Ibid, G2, page 75.
In terms of a clinical assessment, Dr Freeman could make “no formal diagnosis”[47] and thought the Applicant “is not experiencing any type of formal thought disorder or mood disturbance.”[48] Dr Freeman also opined that the Applicant:
“…presented with functional levels of intelligence and did not experience any literacy difficulties completing the screening tools. He also appeared to have sufficient levels of self-awareness and insight.”[49]
[47] Ibid, paragraph [6.2].
[48] Ibid, parapgrah [6.3].
[49] Ibid, paragraph [6.4].
Dr Freeman found no explicit evidence to indicate the Applicant met the criteria for any form of personality disorder. He applied a diagnostic tool – the “Personality Assessment screener” – which did not reveal any elevated scores. Importantly, Dr Freeman noted:
“…the applicant’s offending history is brief and stems directly from an attempt to remain in what appears to be an incompatible relationship. More specifically, he does not appear to harbour explicitly aggressive, violent or antisocial tendencies. However, the applicant’s brief offending history indicates he is vulnerable to engage in reactive violence when exposed to emotional stressors. Thus, there is some evidence to indicate he has ineffective anger management and/or dispute resolution skills. In contrast, he has not engaged in premeditated (e.g. instrumental) violence.”[50]
[50] Ibid, paragraph [6.5], pages 75-76.
Dr Freeman further noted:
“6.6 Importantly, he does not have emotional deficits (which is indicative of psychopathy) as he expressed a range of emotions within the assessment interview. This included parental concern regarding the well-being of his two daughters.
6.7 There were no observable abnormalities or other key criteria such as: grandiosity, irritability, persecution, resentment, identity problems, defiance, etc.
6.8 Taken together, there was no evidence of personality pathologies and/or clear deviant ideation.”[51]
[51] Ibid, page 76.
It is, in my non-expert experience in the field of psychology, relatively rare to see an expert report writer like Dr Freeman finding a complete absence of any dependence upon (or abuse of) illicit substances or alcohol negatively impacting upon psychological functioning. Yet that is precisely what Dr Freeman has observed:
“8. DRUG AND ALCOHOL USE
8.1 Mr. Vargas is an occasional drinker and denied ever experiencing behavioural problems.
8.2 He acknowledged experimenting with a number of illicit substances (in social settings) throughout adolescence, but he has not struggled with dependency nor has such consumption had a negative impact upon his psychosocial functioning.”[52]
[52] Ibid, pages 76-77.
Dr Freeman conducted four separate testing or diagnostic tools upon the Applicant. The first of these was the Hare Psychopathy Check List (“PCL-R”). This testing methodology comprises a rating scale for the assessment of psychopathy in male forensic populations. According to Dr Freeman, the PCL-R “…is widely considered one of the most effective predictors of recidivism, particularly scores above 20 (with scores of 30 being considered indicative of psychopathy).”[53]
[53] Ibid, page 77, paragraph [9.1].
In terms of an overall or “raw” score, Dr Freeman found the Applicant:
“…received a total raw score of 7 that equates to a percentile rank (PR) of 3.6%. Earlier research examining total raw scores and percentile ranks in regards to the PCL-R indicate that the average inmate obtains a score around 23.6 and a percentile ranking of 46.4 (HARE, 1991). Therefore, Mr Vargas’ score is well below the average prisoner’s ranking, and also falls below the cut-off raw score of 30 in order to be classified as suffering from psychopathy.”[54]
[54] Ibid, paragraph [9.2].
The PCL-R testing methodology also features a sub-strata of two tests. They are known as Factor 1 and Factor 2. Testing for a Factor 1 score involves looking for evidence that a person is displaying specific behaviours, such as a grandiose sense of self-worth and/or a superficial level of charm or glibness and/or a tendency to pathologically lie. Dr Freeman opined that the Applicant displayed none of these behaviours and instead:
“…presented as remorseful for his behaviour, although to a lesser extent, did not articulate a high level of victim empathy (which may reflect his perception regarding the lack of serious injury to the complainant).”[55]
[55] Ibid, paragraph [9.3].

With reference to Factor 1, Dr Freeman found that the Applicant had a score of 3, which equated to a percentile rank of 8.8%. The “average prisoner” score for Factor 1 is 8.9 and “percentile range is 53.3”.
Testing for a Factor 2 score involves looking for evidence that a person is overly prone to boredom and/or does have an extensive juvenile delinquency history and/or has led a parasitic lifestyle. Dr Freeman found the Applicant displayed none of these behaviours, but added:
“…However, he has sporadically shown a vulnerability to be impulsive, irresponsible and reckless, although these tendencies were displayed during a relatively brief offending period. He does not lack realistic long term goals, nor breached previous community-based orders.”[56]
[56] Ibid.
In terms of a concluded view on the application of the PCL-R check list, Dr Freeman said:
“Taken together, he does not have behavioural or affective tendencies reflective of psychopathy, which is important given that higher behavioural scores are associated with recidivism.”[57]
[57] Ibid, paragraph [9.4].
The second of the testing methodologies conducted by Dr Freeman was the Spousal Assault Risk Assessment (“SARA”). This methodology determines the risk of violence that might occur in the context of a spousal assault. The SARA scale has five components: criminal history, psychosocial adjustment, spousal assault history, current/most recent offence and other considerations. This methodology requires the tester to look for the presence of different “constructs” in the historical behavioural pattern of the person being assessed. There are 14 such “constructs or indicators”. Examples include: (1) past assault on family members, (2) recent employment problems, (3) victim or witness to family violence as a child or adolescent, (4) recent substance abuse/dependency, (5) personality disorder with anger, (6) impulsivity or behavioural instability.
With reference to the SARA testing methodology, Dr Freeman opined that:
“…in regards to the most recent series of offences, there is no evidence of extreme and/or sexual assault, use of weapons and/or credible threats of death of violation of no contact order. Rather, the only construct he did score on was there is some evidence of a minor escalation in the severity of his behaviour. Nevertheless, and when taken together, he can be considered in the low risk category in regards to the risk of violence towards his ex-partner.”[58]
[58] Ibid, page 78, paragraph [9.5].
The third testing methodology conducted by Dr Freeman is known as the Violent Risk Appraisal Guide (“VRAG”). VRAG is an actuarial tool for the prediction of violent recidivism, but not necessarily in the context of interpersonal relationships. This tool gives a probability (from 0 to 100%) that an offender will commit a new violent offence within a specified period of community access. It indicates how one offender’s risk compares to others.
Dr Freeman’s initial finding was that the Applicant’s:
“…score on this scale indicates that he can be considered to be in the ‘medium’ range for violent re-offending…This characterisation relates predominantly to: (a) not living with both biological parents, (b) never being married, (c) committing non-violent offences (e.g. fraud/stealing), (d) young age at index offence, (e) lack of victim injury and (f) not meeting the criteria for schizophrenia.”[59]
[59] Ibid, paragraph [9.6].
Dr Freeman tempered the immediately preceding finding by adding:
“However, it is noteworthy that actuarial scales rely heavily on static factors (e.g., historical) that cannot change across time. As a result, this may be considered a significant limitation as such scales do not take into account treatment effects, (or for the current case), changes in cognitions due to the threat of visa cancellations.”[60]
[60] Ibid.
The fourth testing methodology conducted by Dr Freeman was the Historical, Clinical and Risk Management Violence Assessment Scheme (“HCR-20”). Similar to the VRAG methodology, HCR-20 assesses the risk for future violent behaviour in criminal and psychiatric populations, but not for predicting the risk of domestic violence. This methodology contains 20 items capturing relevant past, present and future considerations in assessing risk. Those 20 items are further divided into three sections: (1) 10 Historical Items; (2) 5 Clinical Items; and (3) 5 Risk Management Items. In the process of allocating a score or categorisation for risk, the tester looks for evidence of:
(a)Previous violence;
(b)Young age at first incident;
(c)Employment problems;
(d)Substance abuse problems;
(e)Major mental illness;
(f)Psychopathy;
(g)Early maladjustment;
(h)Personality disorder;
(i)Prior supervision failure;
(j)Lack of insight;
(k)Negative attitudes;
(l)Active symptoms of major mental illness;
(m)Unresponsiveness to treatment;
(n)Plans lack feasibility;
(o)Exposure to stabilisers;
(p)Lack of personal support; or
(q)Non-compliance with remediation attempts.
Dr Freeman opined that the Applicant’s “…scores for this scale places him on the ‘low’ risk category for future acts of violence (with a score of 3 out of 40, and the low risk category ranges from 0-20).”[61] Dr Freeman found no evidence of the abovementioned factors (a)-(q) inclusive. He added:
“Rather, the only factors he scored on were: (a) relationship instability (although this appears to be limited to his ex-partner), (b) some level of impulsivity and (c) some evidence of poor responses to stress.”[62]
[61] Ibid, page 79, paragraph [9.7].
[62] Ibid.
In terms of his overall findings, Dr Freeman summarises those findings according to specific categories. First, with reference to the origins of the Applicant’s behaviour giving rise to his predominantly domestic violence offending, Dr Freeman said:
“…Mr Vargas presents as a young man ill-equipped to respond appropriately to a number of relationship stressors, e.g. partner’s grief associated with the death of her brother, birth of twin daughters, relationship instability, etc. More specifically, he had no prior experience being in a long-term relationship, and appears to have engaged in a range of impulsive behaviours with little consideration for the consequences e.g. non-consequential thinking. Mr Vargas’ behaviours appears [sic] to have been compounded by his escalating frustration of having limited contact with his daughters (after the relationship ruptured), despite what he perceived to be considerable efforts to assist with parental duties, e.g., financial assistance, moving regularly to be close to the children, etc.”[63]
[63] Ibid, page 80, paragraph [11.2].
Second, in terms of an assessment of the Applicant’s violence-based recidivism:
“…he can be considered in the low risk category for the SARA (which specifically predicts spousal risk), as well as the HCR-20, and on the lower end of the “medium” continuum for the last instrument (e.g., VRAG)…There is also an absence of violence in his broader psychosocial functioning. Importantly, he has a sufficient level of insight and awareness into the origins of his offending behaviour…”[64]
[64] Ibid, paragraph [11.3], pages 80-81.
Third, with reference to the risk of further domestic violence-based recidivism, Dr Freeman opined:
“…the current case does not constitute factors traditionally associated with elevated risk (including an escalation in severity of risk), such as: ownership of guns, displaying weapons, drug and alcohol abuse, use of sexual force, obsessive/extensive jealousy, extensive dominance, etc. A complete review of additional risk factors associated with domestic violence incidents… highlights the disparity between core risk factors and the current case. This assessment is consistent with previous research that has demonstrated that domestic violence-based recidivism is highest among individuals who both witnessed inter-parental violence and received physical abuse during childhood.”[65]
[65] Ibid, page 81, paragraph [11.4].
Finally, in relation to a broader assessment of the Applicant’s risk of recidivism, Dr Freeman thought the Applicant:
“…does not exhibit traits reflective of psychopathy or clear anti-social ideation, which has been associated with elevated risks of re-offending and risk to the community. He also does not associate with a negative peer support group, and importantly, does not have outstanding substance treatment needs. Importantly, and despite his young age, he has a sufficient level of insight and self-awareness. More specifically, he has no intent to re-commence a relationship with his ex-partner and now recognises that he needs to proceed through formal mechanisms (e.g., Family Court) in order to obtain some level of access to his daughters.”[66]
[66] Ibid, paragraph [11.5].
Dr Freeman (Addendum Report: 25 July 2019)
Dr Freeman provided an addendum report approximately one month prior to the hearing before me. In addition to speaking with the Applicant by telephone, Dr Freeman also completed a telephone assessment with the Applicant’s mother (Ms Sandra Ramirez). According to Dr Freeman’s addendum report, Ms Ramirez “will be his primary support (if he is released into the Australian community).”[67]
[67] Exhibit 2c, page 1, paragraph [1.2].
In terms of the Applicant’s current situation, Dr Freeman observed the major situational changes involving his relocation from (initially) criminal custody at the Borallon Correctional Centre in Southeast Queensland, then to the Brisbane Immigration Accommodation Centre (“BITA”), and then to Yongah Hill Immigration Detention Centre for approximately the past four months. Despite these changes in his locations, Dr Freeman noted the Applicant:
·completed the “DO IT”[68] intervention at BITA;
·completed an online anger management course;
·continued to abide by the conditions of a custodial environment;
·spends his time (in detention) engaging in a weekly “men’s group” that focusses on making healthy lifestyle choices; and
·maintains daily contact with his mother and also regularly communicates with his brother and two of his close friends.
[68] The Drug Offender Intervention and Treatment program that focusses on a range of issues, including substance abuse, anger management and maintaining healthy relationships.
Dr Freeman thought the Applicant “continues to express remorse and regret for his past behaviour…”[69] and that he “…continues to experience good mental health.”[70]
[69] Ibid, page 2, paragraph [3.1].
[70] Ibid, paragraph [4.1].
From his telephone interview with Ms Ramirez, Dr Freeman noted these things:
“6. ASSESSMENT WITH MS. SANDRA RAMIREZ
6.1 A corresponding telephone interview with Ms. Ramirez confirmed that she:
owill reside with Mr. Vargas in rental accommodation in Chermside;
odoes not condone or support his past behaviour e.g., “He didn’t listen to me. He’s embarrassed, I’m embarrassed. No one has ever been to jail in my family, never for violence.”;
omaintains regular contact with Mr. Vargas’ twin daughters (approximately fortnightly) and has an amicable relationship with the children’s mother e.g., “I just see the girls when I’m allowed. I just follow her rules”; and
owill ensure that Mr. Vargas does not consume illicit substances or misuse alcohol e.g., “He knows I don’t like drugs. I will call the police.”[71]
[71] Ibid, paragraph [6.1]
Dr Freeman’s concluding remarks in his addendum report are as follows:
“Mr. Vargas continues to abide by the conditions of a custodial environment and experiences stable mental health. The applicant remains remorseful and deterred from engaging in any further erratic behaviours. Taken together, Mr. Vargas’ goals are pro-social and achievable.”[72]
[72] Ibid, page 3, paragraph [7.1].
Evidence in Chief of Dr Freeman
In his evidence in chief, Dr Freeman was taken to his two abovementioned reports, respectively dated 10 December 2018 and 25 July 2019. He largely re-confirmed the essential thesis of his evidence in terms of his findings as enshrined in both of his reports.
The following exchange transpired between Ms White (legal representative of the Applicant) and Dr Freeman:
“MS WHITE: Thank you. Do you think he has any, kind of, outstanding criminogenic treatment needs?
DR FREEMAN: He mentioned in the first assessment that he wanted to do some more counselling/psychological consultations in order to improve his dispute resolution skills. I think that’s a commendable, but I [sic] regards to significant outstanding treatment needs, he just doesn’t have them. He’s not an individual with an intravenous methamphetamine addiction. He’s not an individual with clear and graphic deficits. There’s protective factors here. I think he can successfully adhere to a relapse prevention plan. I don’t think there’s any – I’m confident of that.
MS WHITE: So, those protective factors, what do they include, in his case, in your opinion?
DR FREEMAN: The protective factors are huge, in the sense that he’s got stable accommodation, he’s got stable employment, and he’s got emotional support around him, which is his mother. They’re three huge things. Obviously, unfortunately, there’s lots of individuals who get released from prison who don’t have stable accommodation, don’t have employment, and they’re immediately exposed to financial distress. So they’re three really big ones. Fourth, the big one is his mental health. Even though he’s gone through this whole process, he seems to be fairly resilient, in regards to his mental health, and that’s – that’s the fourth big one.
MS WHITE: And one more question – actually, no, I’ve got two. Sorry. You are aware – excuse me, let me ask this: are you aware that his mother has had regular contact with his ex-partner, and the children, over the last several months?
DR FREEMAN: Yes. When I spoke with his mother on … I spoke with her for a good – a good period of time, and she really impressed as somebody who was very well aware of the situation she was in. She is not walking on eggshells, she only saw the daughters when the mother permitted her to see the daughters. Sandra was very – reinforced me on numerous occasions that she never once would ask to see the daughters if it wasn’t convenient for her mum, for the daughters’ mum. But the other thing that she was proud, as any grandmother is proud of, was, yes, that the daughters enjoy spending time with their grand-mum. That hey [sic] know their grand-mum, and I thought that was encouraging.
MS WHITE: And do you think that that relationship could be considered a good safeguard in relation to Mr Vargas pursuing access to his children in future?
DR FREEMAN: Yes. In two ways: (1), is that there is some sort of familial access with the daughters, and (2), Mr Vargas’ mother was very clear, and she articulated all the things that she would not permit if her son was released, not into her custody, but into her house. She is very, very firm on (1), being supporting, but (2), ensuring that he doesn’t risk down the wrong track again. So I think they’re encouraging in both regards.
MS WHITE: Well, I think ultimately, then, your assessment – or, excuse me. What is your assessment of his risk of reoffending? Where do you consider it to be?
DR FREEMAN: In forensic psychology, we can never say there is no risk, because that’s not a concept that we can accept, but my – using the structured professional judgement, my experience in regards to this matter is it’s very unlikely that Mr Vargas is going to engage in any more impulsive behaviours where he threatens anybody, puts his hands on anybody; because he knows what’s going to happen to him, with even arguably one conviction.”[73]
[my underlining]
[73] Transcript, page 63, lines 1-47, and page 64, lines 1-6.
Cross-examination of Dr Freeman
Dr Freeman was asked whether there were any core underlying factors predisposing the Applicant to offend in the way he has. He explained to Ms Mak (the legal representative of the Respondent) and to the Tribunal that he could find no historical core predictors of violence in the Applicant’s symptomatology. He clearly said “so, we have very common core predictors that he doesn’t seem to have those.”[74]
[74] Ibid, page 64, lines 36-37.
The following exchange then ensued between Ms Mak and Dr Freeman:
MS MAK: And it’s, sort of, been characterised on a number of occasions that the context of his offending is directly tied to his relationship with [his former partner]. Is that fair to say?
DR FREEMAN: My assessment is that it’s tied to the relationship, but to frustration within the relationship.
MS MAK: Yes?
DR FREEMAN: His inability to resolve matters, and subsequent impulsive behaviour.
MS MAK: Certainly. And I guess in light of those two things that there’s not necessarily an underlying explanation from a clinical perspective that makes him predisposed to that violent conduct. Is it fair to say that going forward, Mr Vargas’ coping mechanism to deal with controlling these impulsive behaviours, and to abstain from engaging in further conduct, it really comes down to him and his ability to manage those stressors, and manage those impulses?
DR FREEMAN: (1), definitely, is to manage them; (2), is the maturation process. This is a man whose got a fair bit older, than when he actually engaged in these behaviours, and; (3), causality is a very, very strong predictor, and that is, cause and effect – he’s committed these offences, and he was sanctioned, and I – my understanding for him is that he will be very reflective of any future consequences before he would engage in any of those behaviours again. So I think the process of causality is very, very strong.”[75]
[75] Transcript, page 64, lines 39-42, and page 65, lines 1-11.
Dr Freeman was asked about the extent to which the necessity of the Applicant having contact time with his daughters has, in the past, been a “trigger” for his behaviour giving rise to his offending conduct. The following exchange ensued between him and Ms Mak:
MS MAK:…And it’s been your evidence, I think you described it as, sort of, being the core – one of the core issues of his offending was him wanting to see his daughters, and if he doesn’t, then he gets very upset, and had, in the past, engaged in that impulsive behaviour that we’ve been talking about, that violent conduct. And so, it’s fair to say, isn’t it, that, I guess, the prevention of him seeing his daughters is historically a – a big – it’s a key trigger?
DR FREEMAN: Pre-him going to gaol, it was a big trigger, yes. But there’s arguably a big disconnect between who he was then and who he is now, in the sense that he’s seen the consequences of his behaviour. But I do agree, that that is the main risk.
MS MAK: Yes. And you’re aware, aren’t you, that it’s his intention to attempt to negotiate increased contact with his children once he’s released – if he is released, sorry?
DR FREEMAN: My – my understanding of what he told me is that he is going to seek formal, legal representation to actually go through that process. He does not for one moment suggest that he does – he’s not going to try…but he’s certainly going to do it through legal channels. He’s not going to do it any other way…because that just opens up the list for him.
MS MAK: Yes. And so, you – it sounds like you’re aware, that it’s not necessarily the case that his ex-partner has – has agreed to this contact occurring at this stage. It is, to some extent, a hypothetical?
DR FREEMAN: Very much so. I agree with that.
MS MAK: Yes. And do you agree that having regard to this relationship history, between Mr Vargas and his ex-partner, and noting that there had not been contact between them for some time, and accordingly there also has not been conflict between them in some time, do you agree that there is a possibility that if these negotiations don’t pan out in the way that Mr Vargas would like them to, he might be subject to those same relationship stressors again?
DR FREEMAN: My clinical opinion of this is that he would weigh up the consequences and would not place himself in that high risk situation. I don’t think anybody could say that there is a – a 100 per cent certainty, but there is a very, very high chance that he will not engage in that because he knows what’s going to happen. He can’t place – he said, he does not want to place himself in that situation again because the risks are too great.
MS MAK: Certainly. And that opinion is based on your discussions with Mr Vargas, both last year and this year, and the change that you’ve observed in those discussions. Isn’t it?
DR FREEMAN: It is based on those three things, yes, and also juts [sic] my general experience of assessing people and looking at people who do have protective factors, and people who don’t have those factors.”[76]
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
[76] Transcript, page 65, lines 13-47, and page 66, lines 1-12.

I am mindful of the elements necessary to be balanced in any proper consideration and application of Primary Consideration C to the present factual matrix. Since the early 2000s, courts and tribunals have been defining formulae to assist a decision-maker in reaching a decision that accords with the expectations of the Australian community.
As a general proposition, Deputy President Block, in 2003, said that one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[94]
[94] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].
Deputy President Forgie of this Tribunal considered the Australian community’s expectations as part of her consideration of paragraph 13.3(1) of the Direction.[95] The learned Deputy President thought this paragraph leads a decision-maker to:
102. …conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…
…
103. Although ultimately a matter for judgment, the facts on which that judgment is made must be on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgment that is ultimately made by a decision-maker must be able to be explained.
[My underlining]
[95] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection:[96]
In substance this consideration is adverse to any applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and has been convicted of serious crimes.
[My underlining]
[96] [2017] FCA 1466 at [76]-[77].
The learned Justice Mortimer went further, and thought the last two sentences of paragraph 13.3 of the Direction:
…[are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do…
[My underlining]
In Afu v Minister for Home Affairs,[97] Justice Bromwich said:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.
[My underlining]
[97] [2018] FCA 1311 at [85].
In recent months, the Federal Court handed down two decisions relating to the nature of the necessary approach in determining the expectations of the Australian community. Those two decisions comprise FYBR v Minister for Home Affairs[98] and DKXY v Minister for Home Affairs[99].
[98] [2019] FCA 500 (“FYBR”).
[99] [2019] FCA 495 (“DKXY”).
FYBR is supportive authority for a narrow approach to the determination of those expectations. As observed by Her Honour Justice Perry:
“It follows, in line with the authorities, that cl 11.3 of Direction 65[100] is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...” [101]
[My underlining]
[100] Note: FYBR was concerned with a visa refusal. This means the relevant paragraph relating to expectations of the Australian community was paragraph 11.3 et seq of the Direction. The instant case is, of course, a matter relating to the non-revocation of a mandatory cancellation decision. In those latter circumstances, the relevant paragraph is 13.3 et seq of the Direction. Further, “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 13.3 for non-revocation matters.
[101] FYBR, paragraph [42] (Perry J)
A broader approach was adopted by His Honour Justice Griffiths in DKXY which is authority for the proposition that:
(a)The Government’s views regarding the expectations of the Australian community must be given due regard; and
(b)So must all other circumstances which are relevant in a particular case.
Analysis – Allocation of Weight to this Primary Consideration C
I note and endorse this Tribunal’s recent findings in TGXY and Minister for Home Affairs[102] that the weight of recent Federal Court authority appears to adopt a somewhat narrower view than that taken by Griffiths J.
[102] TGXY and Minister for Home Affairs [2019] AATA 757 (“TGXY”)
Thus, for the purposes of ascertaining the level of attributable weight to this Primary Consideration C in the instant application, the relevant questions, to my mind, are:
(a)whether the Australian community would expect that a non-citizen with this Applicant’s history of offending should (or should not) retain the privilege of holding a visa to remain in Australia,[103] taking into account:
(i)his contributions to the Australian community;
(ii)the seven year period he has lived in Australia;[104] and
(iii)the adverse impact of his removal upon his immediate family (comprising his mother, step-father, brother and twin infant daughters) in Australia.[105]
[103] Ibid, paragraphs 13.3(1) and 6.3(1)-(6).
[104] Ibid, paragraph 6.3(5).
[105] Ibid, paragraph 6.3(7).
All too often in applications of this type, the Applicant (most often a male) is threatened with removal from Australia for prior offending conduct. In a significant number of these cases, the adverse impact of that removal upon the lives of infant children is ameliorated by either: (1) the financial capacity of the remaining parent/spouse to properly and adequately care for the children, and/or (2) the adequate and pre-existing support networks available to the remaining parent/spouse to, with not inconsiderable difficulty, pick up the cudgels of acting as the sole and primary caregiver to the infant children, and/or (3) the removed Applicant’s capacity to maintain effective contact with the infant children by digital or electronic platforms.
Concerningly, there is convincing evidence before the Tribunal that none of these factors will be available to the Applicant’s former spouse and mother of the children were he to be removed to Colombia. She relies on Centrelink payments as her primary means of subsistence and support for herself and the children. There can be no question that she will welcome financially supportive contributions from the Applicant upon his resumption of remunerative employment in Australia. Further, it is not at all clear from the evidence what level of family support she has in terms of caring for the children. As mentioned earlier, the evidence is opaque as to the level of such support from either or both her parents and/or her sister(s). I also have misgivings about the capacity of two and a half year old children to maintain a relationship with their father, bearing in mind that until recently, they could not even recognise him and actually confused his brother as their father. It is difficult to conceive of how any meaningful relationship via an electronic/digital paradigm could be conducted with these two infant children and their father into the future.
I am of the view that the Australian community – in determining whether this Applicant should retain a visa to stay here – would take into account:
(i)the pivotal findings of Dr Freeman regarding, inter alia, the Applicant’s genuinely low risk of re-offending,
(ii)the four critical and potentially punitive legally-derived elements directly confronting the Applicant were he to re-offend,
(iii)the resilient and robust mental health of the Applicant,
(iv)the absence of any clear and graphic deficits in the Applicant’s psychopathy,
(v)the absence of any alcohol or illicit substance abuse issues in the Applicant’s history, and
(vi)the lack of sustainability in any proposition about the capacity of the Applicant’s former spouse to solely parent the children on a long-term basis.
I therefore cannot accept that the Australian community considers that the above factors, read as a whole in the context of this case, would militate in favour of the Applicant’s permanent removal from Australia and thus from the lives of his two and a half year old Australian citizen twin daughters in circumstances where the evidence strongly points to him as their sole hope for a sustainable future.
Conclusion: Primary Consideration C
I therefore find that while the Australian community might consider this Applicant, via his offending, has, to an extent, breached the trust they have placed in him to obey Australian laws while in Australia, the Australian community would nevertheless expect this Tribunal to not endorse a finding supportive of the Applicant’s removal from Australia. I accordingly find that this Primary Consideration C is of neutral weight on the question of non-revocation.
Other Considerations
There are five “Other Considerations” disclosed in the Direction[106]:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
[106] The Direction, paragraph [14(1)].
I will address each of those considerations, and their respective weights, in turn.
(a) International non-refoulement obligations
There is no suggestion that Australia owes non-refoulement obligations to this Applicant. This Other Consideration (a) is of no relevance to this decision.
(b) Strength, nature and duration of ties
Any consideration of weight to be allocated to this Other Consideration (b) should commence with the helpful concessions made on behalf of the Respondent. In its SFIC, the Respondent says:
“49. The Respondent accepts that the Applicant has strong ties to Australia, including his mother, half-brother and children, all of whom are Australian citizens and intend to continue to reside in Australia for the purposes of sub-paragraph 14.2(1)(b) of the Direction. It is accepted that at least a ‘reasonable’ link exists with these members of the Australian community.
50. In light of the above circumstances, the Respondent contends that it would be open for the Tribunal to find that this Other Consideration weighs slightly in the Applicant’s favour.”[107]
[107] Exhibit 5, Respondent’s SFIC, page 10, paragraphs [49] and [50].
At the hearing, Ms Mak for the Respondent said:
MS MAK: …I think it’s clear that, obviously, his mother and his brother both reside here; he enjoys close relationships with them, they’re a support to him. I would note that, obviously, they’re both citizens of Colombia, quite apart from that, were the Applicant to return to Colombia permanently, they would still be able to remain in contact with him, and they could visit him as necessary. It’s certainly not the Minister’s suggestion that they should move back to Colombia with him at all, but, you know, we simply note that they would be able to remain in contact with him. It hasn’t been suggested today that that wouldn’t be possible, but overall, we accept that that other consideration likely weighs in the applicant’s favour.”[108]
[108] Transcript, page 101, lines 11-21.
To the extent the following comments may be relevant, I feel compelled to say something of the relative “success story” represented by the Applicant, his mother and his brother as relatively recent arrivals in this country. Their assimilation into the mainstream Australian community has been impressive. The Applicant’s mother became an Australian citizen in 2016[109] and currently works as a care companion with the John Wesley Garden Mission in a part-time capacity, working 66-70 hours per fortnight. As I recall her evidence, she has always worked and supported herself and her family while in this country.
[109] See Exhibit 2f.
The Applicant’s brother currently resides in Victoria. He too is an Australian citizen.[110] He came to Australia (as a 13 year old) with the Applicant and their mother. He mastered the English language and commendably completed his Year 12 secondary school studies. To his further credit, he is currently undertaking a Bachelor of Applied Science (Project Management) (Honours) at the RMIT University in Melbourne. In addition to that, he holds two casual jobs, one as a barista at a local café and the second job with a supermarket liquor store. He has always enjoyed and maintained a loving relationship with his brother (the Applicant) and his mother.
[110] See Exhibit 2g.
Likewise, the Applicant has not been dilatory during his time in this country. In his Personal Circumstances Form[111], he discloses the following employment details:
·from 2013-2014: he worked as a landscaper/scaffolder with Tristan Cameron Scaffoldings;
·from 2015-2016: he worked as a scaffolder at Newhmans [sic] Scaffolding;
·from 2016-2017: he worked as a scaffolder with Delta Point Scaffolding.
[111] Exhibit 7, s501 G Documents, G2, page 50 – see Table under “List your employment history in Australia”.
The evidence also indicates that he has been constantly employed since leaving school and paid taxes in this country.[112] Perhaps most importantly for present purposes, there is a live and current offer of employment from an employer who has employed him in the past and who will immediately re-employ him upon his return to the Australian community. Exhibit 2e in the material is a letter from one of his former employers, Newnham Scaffolding. The letter reads as follows:
[112] Ibid, see comments under heading “List positive contributions you have made to Australia…”
“…
12 July 2019
Re: Mauricio Mendieta Vargas
This letter is provided to Mauricio, to use as he wishes, as evidence of Mauricios’ good standing within our company whilst he was in our employ. Mauricio was employed By Newnham Scaffolding Hr Pty Ltd from 10 October 2016 until he left of his own volition on 5 March 2017. During this time Mauricio showed himself to be a loyal and trustworthy employee and was held in high esteem by his fellow foremen and workers.
It is our understanding that Mauricio, through an error in misjudgement, has found himself in a world of trouble on the wrong side of our laws and is currently serving time in a remand centre in Perth. We understand the severity of his charges, as I believe so does Mauricio, who has personally expressed his sorrow for his actions and the ramifications for all involved.
It is for this reason and the fact of his past good record of employment with us, should Mauricio return to Queensland as he has indicated upon return from his sentence, we would again be happy to offer him secure employment.
If you need any further clarification, please do not hesitate to contact me.
Regards,
[name redacted]
Payroll Officer
Newnham Scaffolding HR Pty Ltd
…”
[my underlining]
Paragraph 14.2(1)(a)(i) of the Direction stipulates that less weight should be given to this Other Consideration (b) in circumstances where the non-citizen began offending soon after arriving in Australia. In the instant case, the Applicant arrived here in August 2012 and offended during the single period of May-August 2017, some five years after arriving here. I am not of the view that this Applicant is a serial and consistent offender, and, accordingly, I do not consider that the single offending episode in the Applicant’s offending history causes this paragraph to attract any weight in favour of non-revocation.
Paragraph 14.2(1)(a)(ii) of the Direction stipulates that more weight should be given to this Other Consideration (b) in circumstances where the non-citizen has made positive contributions to the Australian community. As I have mentioned, both the Applicant and his family have commendably supported themselves by way of remunerative employment during their time in this country. There is nothing in the material to suggest otherwise. As well, the Applicant speaks of involvement with “…a couple of charitys [sic] groups as one dream[113] and also the group of people that dresses up as clowns to help sick kids in hospital.”[114] I am also mindful of the unanimous views expressed by his supporters and referees attesting to his strong work ethic, his willingness to engage with others and to otherwise do the right thing by those around him.[115] Accordingly, this paragraph 14.2(1)(a)(ii) of the Direction does attract a strong measure of weight in favour of the Applicant.
[113] One Dream Foundation: Exhibit 7, s501 G Documents, G2, page 50
[115] Ibid, G2, pages 132 – 141.
Paragraph 14.2(b) of the Direction provides that in deciding whether to allocate any weight to this Other Consideration (b), a decision-maker, should have regard to “[t]he strength, duration and nature of any family and or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).” [my underlining]
I have already recounted, in detail, my findings about the specific circumstances confronting the Applicant’s former spouse and their children were the Applicant to be permanently removed from Australia. Further to that, the strength, nature and duration of his ties to this country can be readily gleaned from the exemplary manner in which both he, his mother and his brother have assimilated into the mainstream Australian community. I am of the view that the strength, nature and duration of his ties to Australia should be measured by the extent to which (1) he is needed in this country, here and now, and (2) his ties to Australia via his twin infant Australian citizen daughters, his mother and her partner and his brother (and, indeed, his brother’s partner[116]), compared to whatever ties he may have in Colombia. The overwhelming weight and strength of his ties are to this country.
[116] Transcript, page 68, lines 32-35.

Accordingly, I consider that paragraph 14.2(b) of the Direction merits the allocation of a strong measure of weight to this Other Consideration (b) in favour of a finding that the Applicant’s migration status in this country should be restored to him.
I thus allocate a strong level of weight to this Other Consideration (b) in favour of the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s subject visa.
(c) Impact on Australian business interests
I cannot recall any evidence that this Other Consideration (c) is of relevance in determining this application.
(d) Impact on victims
I am mindful of the sentencing remarks of Her Honour Judge Richards DCJ, made on 6 June 2018, wherein Her Honour noted: “The assaults, which involved injuries to her [the Applicant’s former spouse], which I have photos of, and, of course, a significant amount of mental anguish that she has suffered, as detailed in her victim impact statement” [my underlining]. I have looked through the totality of the written material before the Tribunal and have examined the transcript of the hearing. I could not locate a victim impact statement.
While I respectfully accept the sentencing remarks of Her Honour Judge Richards as true and accurately recorded, without the benefit of an actual victim impact statement, it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact any return of the Applicant to the Australian community would have on his former spouse. Accordingly, I cannot find that this factor is capable of attracting any weight either in favour of, or against, the revocation of the Applicant’s visa.
(e) Extent of impediments if removed
Paragraph 14.5(1) of the Direction provides that any assessment of impediments faced by a non-citizen if removed from Australia back to their country of origin must take into account:
(a)the person’s age and health;
(b)whether there are substantial language and cultural barriers; and
(c)any social, medical and/or economic support available to them in that country.
The Applicant is a very young man of 24 years of age. There are no apparent health (mental or physical) issues adversely affecting him. Were he to be returned to Colombia, there is no evidence of any language or cultural barriers militating against his capacity to re-settle there. As against that, the Applicant’s mother said:
“If Mauricio goes back to Colombia, his only option will be to live with my mother and sister. My mum is 75 years old. She is old and can mostly look after herself with some support from my brother. She lives on my father’s pension. She can’t do much more for Mauricio other than give him a roof over his head. My sister also lives with my mother and she is very unwell. She has never worked before as she has schizophrenia. She’s not stable and sometimes she refuses to take her medication. She tried to kill herself a couple of years ago.”[117]
[117] Exhibit 2d, Statutory Declaration of Sandra Vargas, page 3, paragraph [19].
It may be the case that Colombia does not have identical social, medical and/or economic support to that available to the Applicant in this country. However, regard must also be had to the ambit of paragraph 14.5(1) of the Direction, which relevantly stipulates that the extent of any impediments confronted by a non-citizen - if removed from Australia to their home country - in establishing themselves and maintaining basic living standards, is to be considered in the context of what is generally available to other citizens of that country.
To the extent the Applicant may face initial difficulty in re-establishing himself in Colombia, I am of the view that such difficulty (and any other impediments confronting him) would not be insurmountable given his work history, cultural familiarity and the albeit limited support of his relatives (in Colombia) and their connections to that country.
I therefore find that this Other Consideration (e) weighs moderately in favour of non-revocation.
Conclusion: Other Considerations
The weight attributable to these Other Considerations can be summarised as follows:
·International non-refoulement obligations: not relevant.
·Strength nature and duration of ties: is of strong weight in favour of revocation.
·Impact on Australian business interests: not relevant.
·Impact on victims: not relevant.
·Extent of impediments if removed: weighs moderately in favour of non-revocation.
IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION OF THE APPLICANT’S VISA?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant passes the character test or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having regard to the Direction and to the totality of the evidence before me, I find there is another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by

s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. With regard to the weight allocable to each of these Primary and Other Considerations, I find as follows:
·Primary Consideration A weighs moderately, but not determinatively, in favour of non-revocation;
·Primary Consideration B weighs strongly in favour of revocation and outweighs the weight I have allocated to Primary Consideration A;
·Primary Consideration C is of neutral weight;
·Other Considerations (a), (c) and (d) are of either neutral weight or no relevance to this consideration;
·the combined weight of Primary Consideration B and Other Consideration (b) favouring revocation outweigh the combined weight of the remaining Primary Consideration A and Other Consideration (e) which favour of non-revocation;
·a holistic application of the considerations in the Direction to the evidence therefore favours exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa.
Consequently, I find that there is another reason to revoke the original decision to cancel the Applicant’s visa.
DECISION
The decision under review is set aside and substituted such that the discretion in s 501CA(4)(b)(ii) of Migration Act 1958 (Cth) to revoke the mandatory cancellation of the Applicant’s visa be exercised.

I certify that the preceding 185 (one hundred and eighty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

...........................[SGD].............................................
Associate
Dated: 11 September 2019

Date(s) of hearing: 28 August 2019

Advocate for the Applicant: Ms Caitlin White (Solicitor)

Solicitors for the Applicant: Fisher Dore Lawyers

Advocate for the Respondent: Ms Deborah Mak (Solicitor)

Solicitors for the Respondent: Clayton Utz

[2019] AATA 3409

11 September 2019

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Standing

Court	Court Date	Offence	Court Result
Brisbane District Court	6 June 2018	Fraud pursuant to s 408C(1)(D) of the Queensland Criminal Code[16] (20 charges).	On all charges, conviction recorded but not further punished.
Brisbane District Court	6 June 2018	Contravention of domestic violence order pursuant to s 177(2)(B) of the Domestic and Family Violence Protection Act 2012 (Qld) (two charges). Stealing pursuant to s 398 of the Queensland Criminal Code (one charge).	On all charges, conviction recorded; sentenced to a custodial term of imprisonment of 3 months.
Brisbane District Court	6 June 2018	Assault in a domestic violence context pursuant to s 335 of the Queensland Criminal Code (charged by way of indictment pursuant to s 534(3A) of the Queensland Criminal Code) (three charges).	On all charges, conviction recorded; sentenced to a custodial term of imprisonment of 6 months.
Brisbane District Court	6 June 2018	Assault in a domestic violence context occasioning bodily harm, pursuant to s 339(1) of the Queensland Criminal Code (charged by way of indictment pursuant to s 564(3A) of the Queensland Criminal Code) (two charges).	On all charges, conviction recorded; sentenced to a custodial term of imprisonment of 12 months.
Brisbane District Court	6 June 2018	Assault in a domestic violence context occasioning bodily harm, pursuant to s 339(1) of the Queensland Criminal Code (charged by way of indictment pursuant to s 564(3A) of the Queensland Criminal Code) (two charges). Unlawful stalking, actual and threatened contravention of domestic violence order, punished pursuant to s 359E(1)&(3) of the Queensland Criminal Code (charged by way of indictment pursuant to s 564(3A) of the Queensland Criminal Code) (one charge).	On all charges, conviction recorded; sentenced to a custodial term of imprisonment of two years, to be suspended for an operative period of five years after serving 12 months in actual custody.

Date(s) of hearing:	28 August 2019
Advocate for the Applicant:	Ms Caitlin White (Solicitor)
Solicitors for the Applicant:	Fisher Dore Lawyers
Advocate for the Respondent:	Ms Deborah Mak (Solicitor)
Solicitors for the Respondent:	Clayton Utz