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

VXXG and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3362 (5 September 2023)
Division:GENERAL DIVISION
File Number: 2023/4310
Re:VXXG
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member D. Cosgrave
Date of Decision: 5 September 2023
Date of Written Reasons: 19 October 2023
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 9 June 2023 to not revoke the cancellation of the Applicant’s visa.
............................[SGD]................................
Member D. Cosgrave
Catchwords
MIGRATION – Mandatory visa cancellation – Class WC Subclass 030 Bridging C visa – failure to pass character test – criminal record – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 99 applied – decision under review affirmed.
Legislation
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
Cases
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Bushell v Repatriation Commission (1992) 175 CLR 408
Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588
Demir V Minister For Immigration, Citizenship And Multicultural Affairs [2023] FCA 870
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs [2022] HCA 26
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Secondary Materials
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Member D. Cosgrave
19 October 2023

VXXG seeks review of the Respondent’s delegate’s decision on 9 June 2023 not to revoke the mandatory cancellation of his Class WC Subclass 030 Bridging C visa (the visa).[1]
[1] G documents (bookmarked G1-G27), G1, p 9. G documents are so named because they are provided under s 501G of the Migration Act 1958 (Cth). They consist of documents in the possession or control of the Respondent relevant to the making of a reviewable decision. They usually accompany the Minister’s written notice regarding a visa cancellation, refusal, or non-revocation.
The hearing was held by audio visual link in Brisbane on 14 and 15 August 2023. VXXG represented himself. The Respondent was represented by Mr Burgess, a legal practitioner with Sparke Helmore.
On 5 September 2023 the Tribunal met its 84-day statutory obligation[2] by providing a short form decision in which it affirmed the decision under review.[3] The Tribunal now gives its reasons for its decision.
[2] Pursuant s 500(6L) of the Migration Act 1958 (Cth).
[3] Khalil v Minister for Home Affairs (2019) 271 FCR 326 [41]–⁠[48].
The Tribunal commends Mr Burgess for his professional manner, his elucidation of evidence in cross-examination and his approach to VXXG as a self-represented applicant.
Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.
FACTS
VXXG is a 39-year-old citizen of India. He arrived in Australian on 26 November 2008 on a student visa when he was 24 years old and has not departed since[4]. He overstayed after his student visa expired in July 2011[5].
[4] G1, p 67.
[5] Ibid, p 127.
VXXG’s first offending in Australia related to traffic offences (which included driving unlicensed and driving a vehicle not complying with standards). He was fined in relation to those offences in June 2016.[6]
[6] G1, p 33.
In May 2018, VXXG committed two counts of sexual assault. In August 2020, VXXG was sentenced to twelve months imprisonment (suspended for 2 years) in relation to those offences.[7] The facts relating to those offences are as follows:[8]
(a)VXXG sat next to the victim (who was a vulnerable person by virtue of an impairment[9]) at a bus stop. He introduced himself and talked to her before going away to smoke a cigarette and retuning.
(b)VXXG leaned in, used his right hand to hold her shoulder or face and kissed her. He tried to put his hand insider her dress, rubbed her legs and touched her bottom. This continued for approximately two minutes.
(c)VXXG then asked her to go to the toilet and if the victim wanted to meet him behind the toilet. She said she did not.
(d)VXXG gave the victim a cigarette and when his bus arrived kissed her again and got on.
[7] Ibid, p 33.
[8] Ibid, p 44.
[9] Ibid, p 45.
In October 2018, VXXG applied for a protection visa and was granted the visa in conjunction with that application.[10]
[10] Ibid, p 67.
Between December 2018 and January and May 2019, VXXG breached bail in relation to the sexual assault offences by:
(a)failing to report; and
(b)failing to apply to change his address.[11]
[11] R2, pp 53-57
In February and June 2019, he was fined in relation to those breaches.[12]
[12] G1, p 33.
On 5 November 2020, a delegate of the Respondent refused VXXG’s protection visa application.[13] VXXG lodged an application for review of that decision in the Administrative Appeals Tribunal (MRD).
[13] Ibid, p 118.
On 4 October 2021, VXXG was notified of an intention to cancel his Bridging visa C under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).[14]
[14] Ibid, p 74.
In March 2022, VXXG committed the offences of passenger interfere with driver's control of vehicle, destroy or damage property <=$2000 (DV)-T2 and assault occasioning actual bodily harm (DV)-T2. In August 2022, he was sentenced in relation to those offences.[15]
[15] Ibid, p 33; R2, pp 83-85.
The facts of the March 2022 offending are as follow:
(a)VXXG was in a relationship with the victim (Ms M) which had commenced in December 2021.[16]
(b)In March 2022, VXXG and Ms M had an argument at her residence. Ms M asked VXXG to leave her house. VXXG stated he would leave in the morning, became agitated, ripped his clothes off, cut them with scissors and threw the victim’s food in the bin.[17]
(c)The following morning the victim again asked VXXG to leave. He stated he could not find transport home and started to throw things around the room and yell. Ms M agreed to take VXXG to Grafton with her.[18]
(d)Whilst travelling on the Pacific Highway Ms M said to VXXG “I don’t want to see your face”, he replied “I don’t want to see yours either” and hit her in the face. She continued driving to Grafton. She got to work and VXXG left the location but called her many times throughout the day.[19]
(e)Ms M agreed to meet VXXG at her car and, upon meeting him, observed that he appeared intoxicated. Approximately five minutes into the trip VXXG asked the victim “do you need more punches”, she replied “please be quiet, I want to concentrate on the road”. VXXG then punched Ms M in the face about ten times. Ms M continued to drive during the attack and VXXG threatened to punch her again if she stopped.[20]
(f)VXXG grabbed the steering wheel while attempting to turn the vehicle into oncoming traffic on two occasions.[21]
(g)VXXG grabbed Ms M’s sunglasses that had fallen off her face and smashed them.[22]
(h)Ms M eventually was allowed to stop the car, saying that she needed to vomit. When she exited the car she began screaming for help and VXXG walked to her side of the vehicle and punched her before saying “I will come there tonight and kill you”.[23]
(i)Ms M returned to her car, drove to a police station and reported the matter.[24]
[16] G1, p 37.
[17] G1, p 37.
[18] Ibid.
[19] G1, p 38.
[20] Ibid.
[21] Ibid.
[22] Ibid.
[23] Ibid.
[24] Ibid.
VXXG was given notice on 23 August 2022 that his visa had been cancelled under s 501(3 A) of the Act.[25]
[25] Ibid, p 141.
The visa was cancelled on the basis that VXXG had a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory (ss 501(6)(a) and 501(7)(c) of the Act).
VXXG subsequently sought revocation of the visa cancellation decision on 17 September 2022 and provided submissions and further evidence in support.
In April 2023, the Administrative Appeals Tribunal (MRD) affirmed the delegate’s decision not to grant VXXG a protection visa.[26]
[26] G1, p 117.
On 9 June 2023, a delegate of the Minister decided, under s 501CA(4) of the Act, not to revoke the visa cancellation decision. That decision was notified to VXXG on 13 June 2023.[27] VXXG sought review of this decision in the Tribunal on 19 June 2023.[28]
[27] Ibid, p 172.
[28] Ibid, p 4.
OFFENDING HISTORY
VXXG’s offending can be categorised under the following areas:
(a)Sexual assault;
(b)Assault;
(c)Damage to property;
(d)Domestic violence;
(e)Interfering with driver’s control of a vehicle;
(f)Breaches of bail conditions; and
(g)Traffic offences.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Section 501(3A) of the Act, read with ss 501(6) and 501(7), oblige the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act. A person fails the test if they have a ‘substantial criminal record’ defined by s 501(7) of the Act.
Section 501(7)(c) of the Act defines a ‘substantial criminal record’ as including the situation where a person is sentenced to a term of imprisonment of 12 months or more.
Under s 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and to invite the affected person to make representations about revocation.
Section 501CA(4) of the Act confers a power upon the Minister to revoke the original decision if:
(a)the person whose visa has been cancelled makes representations in accordance with the invitation; and
(b)the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.
MATTERS FOR CONSIDERATION
The character test
VXXG’s visa was cancelled on the basis that he had failed the character test as he had a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory (ss 501(6)(a) and 501(7)(c) of the Act).
VXXG does not pass the character test due to the operation of ss 501(6)(a) and 501(7)(c) of the Act.
Consequently, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision.
The remaining issue for the Tribunal to consider under s 501CA(4)(b)(ii) of the Act is whether the Tribunal is satisfied of there being another reason to revoke the cancellation decision.[29] The Tribunal “stands in the shoes of the original decision-maker” but with regard for the situation as at the time of its consideration.[30]
[29] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
[30] Nathanson v Minister for Home Affairs [2022] HCA 26 (“Nathanson”); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40], 315 [100], 324-325 [134]; Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ).
Is there another reason why VXXG’s visa cancellation should be revoked?
The Full Court of the Federal Court in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172, approving the reasoning in Viane,[31] identified the following principles as relevant to the statutory task conferred by s 501CA(4) at [27]:
1If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
2The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
3The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
4However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
5Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
6If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.…”
[31] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
When the Tribunal assesses and considers the factors weighing for and against revoking a visa cancellation, Section 499(2A) of the Act requires it to comply with Direction 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).[32]
[32] See Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 at para [38].
The Direction
The Direction contains mandatory and aspirational considerations guiding the exercise of statutory power under the Act.[33]
[33] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, at [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, at [45].
The following principles in paragraph 5.2 of the Direction inform the decision-making process:[34]
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
[34] Paragraph 5.2 of the Direction.
Paragraph 6 of the Direction provides that, informed by the above principles, a decision-maker must take into account the primary and other considerations described in Paragraphs 8 and 9 of the Direction in determining whether to set aside or affirm the delegate’s non-revocation decision.
Paragraph 7(1) of the Direction provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources.’
Paragraphs 7(2)-(3) of the Direction state that ‘Primary considerations should generally be given greater weight than the other considerations,’ and ‘One or more primary considerations may outweigh other primary considerations.’
Paragraph 8 of the Direction provides the following primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia;
(5)expectations of the Australian community.

Paragraph 9 of the Direction identifies the following non-exhaustive list of other considerations to be considered where relevant:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
The Tribunal is not precluded from finding that a consideration specified under Paragraph 9 of the Direction has equivalent or greater weight than a consideration specified under Paragraph 8 of the Direction. This depends on the specific circumstances of each case.[35] The weighing process is determined by decision-makers exercising the relevant power under the Act.[36]
[35] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
[36] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57].
EVIDENCE
The following is an overview of the evidence tendered or adduced before the Tribunal. The evidence referred to below includes documentary evidence collated for the purposes of section 501G of the Act, documents tendered by the Respondent and VXXG and testimony given by VXXG and Ms M.
Documentary evidence
The hearing received written evidence, which is attached to this Decision and marked ‘Annexure A’.
The witnesses who gave evidence during the hearing were:
(a)VXXG; and
(b)Ms M.
VXXG’s evidence
Relevant aspects of VXXG’s evidence are summarised below:
Examination-in-chief by the Tribunal
VXXG affirmed his statements.[37]
[37] Transcript, p 6, lines 38-41.
VXXG gave the following answers in relation to the issues noted below.
Offending
‘MEMBER: And they go through your conviction for sexual assault and then your subsequent further conviction of assault occasioning bodily harm and destroying or damaging property and passenger interfering with a driver’s control of a vehicle. Do you agree that you committed these offences?
VXXG: Yes, I agree.’[38]
[38] Ibid, p 7, lines 10-14
Reasons for Offending and Risk of Reoffending
‘MEMBER: Thank you. The next thing that is assessed is the risk you pose to the Australian community. And you’ve told the department, as did you tell the court and the corrective services that you were under a lot of pressure. What do you mean by a lot of pressure at the time that you committed the assault on your partner?
VXXG: Pressure because that time my mum is suffering from COVID and the relationship is a little bit not good. That’s why I’m suffering from pressure, all you say, is, like, problem, something like that. Like drinking or fall or something. ‘[39]
[39] Ibid, p 7, lines 16-23
Stressors
‘MEMBER: Thank you, VXXG. And at paragraph 41, you told in your revocation request to the department that you abused alcohol to escape from reality. What can you tell us about how you use alcohol?
VXXG: When I came here, third time I have not enough work. And 2010, my father helped me before every time for to pay my fees and after that my father passed away. No one helped me to pay a visit, to pay the money, college fees. And after that I just easily catch up with alcohol. Because I don’t want to - I didn’t pay for college fees. My father passed away. I just - going further from reality. Just make my mind happy.
MEMBER: I understand, VXXG, and you can take your time. I can understand that this is distressing. Now, I’m sure Mr Burgess will raise this with you when he gets the opportunity to ask you questions, but you made some of the same claims when you sought a protection visa. Had there been a change? Have you learnt to handle stress? Have there been any changes?
VXXG: I’m living last one year inside. Four months correction centre. Nearly more than eight months in detention centre altogether. Nearly one year, more than one year. But I know, I everyday forgive myself too. I did blunder, mistakes. I do some medication too. What I did, just I have to forget about that one and I pay every day for it, for victims. ‘[40]
Risk to the Community
‘MEMBER: I understand, VXXG. Now, the delegate concludes that you pose a risk to the community. I’ll ask you one question now about that, but when it comes to your final statements to me - which will probably be tomorrow - I want you to think about how you would describe what you see as your risk to the community going forward. Now, what the respondent’s delegate found was, that you’ve previously had support available to you but you have continued to misuse alcohol and then gone on to commit domestic violence. So in a totality, there is a fair reason to think that you pose a risk to the community. What would you say to that?
VXXG: I’ve lived the last 15 years in Australia. I work for community. I work in hospitality. My great - I work with - my hard working life here. I did mistake. I admit I’m very remorseful. But I don’t think so, but I’m - like, harm for community. I didn’t think so. I’m for alcohol-committing. I know I - this is painful, this is book - but - this is not my corrector. I’m not harm for community. I never did before anything in 15 years. I live - like, I lived 15 years in Australia most of the time Queensland, 11 years. One and a half years in Melbourne. And nearly two years in New South Wales. I’m not harm for community. I’m not like that. First time. I’m a very kind and humble person. I did mistakes. I - I feel sorry every time. But I don’t think so, I’m harm for community. I’m nearly living - nearly living one year in supervision correction centre, in detention centre. You check my record. How - how is my behaviour, how is everything. I’m not harm for community.’[41]
[40] Transcript, p 8, lines 22-41
[41] Ibid, lines 43-47; p 9, lines 1-17.
Cross-examination
Mr Burgess conducted a thorough cross-examination of VXXG.
VXXG gave the following answers in relation to the issues noted below.
Offending
‘MR BURGESS: VXXG, you pleaded guilty to the two counts of sexual assault, didn’t you?
VXXG: Yes.
MR BURGESS: And that sexual assault was captured on CCTV?
VXXG: Yes. Yes, everything.
MR BURGESS: Had you been drinking at that time?
VXXG: Yes.
MR BURGESS: And what had you been drinking at that time?
VXXG: I had, I think that time I drink wine or something, wine.[42]
[42] Transcript, p 15, lines 13-21.
…
MR BURGESS: VXXG, if I can go to the second offence that you were convicted of, that is the assault occasioning actual bodily harm. Can I take you to page - of that same bundle - can I take you to page 84?
VXXG: Page 84?
VXXG: Yes?
MR BURGESS: Yes. This is in relation to the assault on [Ms M]. It states that you had been in a short-term relationship with her from December 2021 until 15 March 2022, is that right?
VXXG: No. We have starting, like, we have starting relationship from March - 5 March 2021 and I fight, [March 2022], nearly one year.
MR BURGESS: Why would they say around December 2021? Is that the first time that you met her in person?
VXXG: Yes, first time I met. But we - we are talking - we are talking before - we are starting on March - we’re talking on March.
MR BURGESS: Okay, now it then says you had come to stay at her [location redacted] residence on 14 March, that’s correct?
VXXG: Yes.
MR BURGESS: Yes, and about 8.30 you got into an argument with her?
VXXG: Yes.
MR BURGESS: Right, she asked you to leave?
VXXG: Before morning time, like day before yesterday - like 13th of - that time I think this is Sunday night, and she - we argued. We argued a little bit, and after that she say ‘You can’t leave’. When I am leaving, after that she said - no, she said ‘Don’t worry. Don’t leave, sorry. I’m sorry’, and that’s the same things happened and she’s saying, ‘You leave’, she throw my clothes or everything. I say ‘I can leave. I can leave on morning time, just give me time’, that’s what happened.
MR BURGESS: Okay, it says there that she asked you to leave but you said you would leave in the morning, you became very agitated - - -?
VXXG: No, but - - -
MR BURGESS: Yes, just listen. VXXG, just listen to me.
MEMBER: Just wait, yes. Sorry, Mr Burgess?
VXXG: Sorry.
MR BURGESS: It then says you got very agitated, ripped your clothes off and cut them up with scissors and threw her food in the bin, did that happen?
VXXG: Has happened.
MR BURGESS: That did happen?
VXXG: It’s happened, yes, because we fight for food. When I make for her tea and I bring KFC for her, I just make a little bit hot and she say, ‘This is too hot, and this tastes not good’. I said, ‘This is not good, put in the bin. If not good, why are you drinking? If not good, put in the bin’. And this is - I make this one hot, you don’t like, just put there. And she says, ‘You can throw also in the bin’, and that time I throw in the bin.
MR BURGESS: Okay, why did you rip your clothes off and cut them up with scissors?
VXXG: Because she throw my clothes. She said ‘Go away, this is your clothes. Get out from here’, and I said, ‘You have to put in the bin. Why are you throwing there’, and that’s why some - not all of the clothes - not I rip. Sometimes I just tear, and I say, ‘Just put in the bin’ because she’s throwing clothes on me.
MR BURGESS: Okay, you’ve said earlier that she didn’t - she didn’t tell you to leave, and that you offered to leave. It doesn’t sound like that’s what has happened here?
VXXG: Sorry?
MR BURGESS: Well you said earlier that, when I asked you if she told you you had to leave, you said ‘No, she didn’t say I should leave. It was okay for me to stay’ and you offered to leave, but now you’re telling me she’s throwing your clothes at you and telling you to leave. So which one is it?
VXXG: Because I’m definitely inside the house. She did one for yesterday same like that for me when we are cooking, she said leave for her, and she said ‘Leave my house’. And after that she just closed the door, she said, ‘You can’t go. I don’t want you to go. I will - I will not talk with you’. Maybe I think she’s talking like that. So one day before she’s talking with me saying, ‘I think you leave now’, and after that she said ‘Come. Don’t leave. Please don’t leave.’ I have messes over there, everything.
MR BURGESS: In the morning she asked you to leave as she had to go to work, did that happen?
VXXG: Morning time she say, ‘Okay, let’s go. We can go. I will drop you to [location redacted]. You go - you go from [location redacted] to Gold Coast’. I say, ‘I will go’, but when I go to (indistinct) I didn’t see any train. I’ve been at the train station also. No buses because that time is a flood situation in Lismore side. March, nearly march or - maybe one or two buses working in weekdays. Not too many bus or transport - public transport - to go to Queensland. I say, ‘No option’. That’s why I say ‘This is not - I didn’t see any option at there. Maybe tomorrow morning I have to go’, and she didn’t respond to anything.
MR BURGESS: Okay, so it says that she asked you to leave in the morning. You say you became agitated and starting stating you couldn’t find transport home, and that you started to throw things around the room and yell, did that happen?
VXXG: I didn’t yell (indistinct), but I didn’t yell at her I know, and after that we sit together from (indistinct). We leave together from home.
MR BURGESS: Yes, I know. VXXG, I’m not talking about after you leave, I’m still before you leave. You threw things around, did that happen?
VXXG: Morning time?
MR BURGESS: Yes?
VXXG: No.
MR BURGESS: Did you yell at her in the morning?
VXXG: Morning time, before she didn’t talk with me. I didn’t yell or anything. Just when we leave, she told me ‘I don’t want to see your face’, then we - then I leave - that time near big brother, yes, that time I yell. Yes.
MR BURGESS: Okay, so you didn’t yell at home?
VXXG: No, not home. Morning time, I didn’t yell when she woke and going for walk. We together go, I didn’t yell that time when starting from home.
MR BURGESS: You’re then driving with her to [location redacted], and she says, ‘I don’t want to see your face’, and you replied, ‘I don’t want to see yours either’, and you punched her to the face with a closed fist. Did that happen?
VXXG: Happen, yes.
MR BURGESS: Okay, so before when the Member asked you about this you said ‘No, I didn’t punch her with a closed fist, I only slapped her with an open hand’, so?
VXXG: Yes.
MR BURGESS: So what happened, VXXG?
VXXG: At that time, she know that I - even she says I didn’t punch her, I slapped her at that time. I slapped. I was angry that time because last time (indistinct), and morning time she is fighting, and after that yes, I slapped her. I slapped her.
MR BURGESS: Okay, so when I just asked you then whether you punched her to the face with a closed fist and you said yes, why did you say yes to that question?
VXXG: I think I hit her. I know, but I didn’t punch her. I hit her with a slap, I didn’t punch her. I know that time I hit, I hit with slap. And how if I punched her morning time, and after that - on is face - and she goes straight to the work and when she finished the work she called me, ‘Come on, let’s go to home[43]
[43] Transcript, p 15, lines 23-47; p 16, lines 1-47; p 17, lines 1-47.
…
MR BURGESS: Why did you want to slap her?
VXXG: At that time I was drunk. Before I was sitting - all right. When she opened the window, we are sitting together. Before I said, ‘Sorry for everything’. I don’t know what happened after that, a little bit aggressive. Not little bit, I’m aggressive. And aggressive, I slap her when she stopped the car. I didn’t say anything or like I didn’t stating anything when I slapped. Maybe my hand was touched - touched her (indistinct).
MR BURGESS: Yes, so you said you slapped her, and you didn’t touch the steering wheel, is that right? You didn’t grab the steering wheel and pull it towards oncoming traffic?
VXXG: No, I didn’t do because we are together. We are together. Maybe when I went to slap her, maybe my hand slipped or touch her. I have no idea. I just strictly that side. I damage this because she’s reeling - I damage these glasses, eye or sunglasses she is wearing, but I didn’t do that one. I just outside - when I say just - she stopped the car.
MR BURGESS: VXXG, I’ll get to that, but - I’ll get to that in a moment. The statement of facts says that you punched her about 10 times to her face?
VXXG: No, I didn’t punch her on the face. This is just - I know I slapped her, but strictly this is the only the (indistinct) medication. She told me everything about, she showed the photos quickly. And even I saw her photo quickly, but what I did, I did wrong. I know this. I can’t do that like that, but - - -
MR BURGESS: How many times did you slap her?
VXXG: I slapped not the 10 times, she said 10 times. Definitely I admit my mistake. I slap her three or four times. I just not very hardly I slap. If very hard if somebody driving, if you very hardly slap, she’s going to go to that side. I just say, ‘You hurt me like that’, I slapped her like that. I make my position known like that, otherwise issue. If somebody driving and you slap, one slap, she go anywhere. I didn’t slap like that or punch her like - no.
MR BURGESS: VXXG, which hand did you slap her with?
VXXG: I’m a right hander. She’s sitting just right. She’s driving this side, and I just slap this like that, right hand - from my right hand.
MR BURGESS: She then said that she needed to vomit and was going to pull the car over, is that right?
VXXG: I didn’t hear she say to me she vomit. I know that she just stopped the car, and when she stopped the car, I just say, ‘I don’t want to go with you’. Nothing happened in the motor vehicle. Nothing happened because she - I get - - -
MR BURGESS: Well it says here that you got out of the vehicle, walked around, and punched her to the forehead with a closed fist. Did that happen?
VXXG: No. No, it didn’t.
MR BURGESS: It then said you said to her, ‘I will come there tonight and kill you’, did you say that?
VXXG: I say like that, but that time I didn’t punch her. But I didn’t say that ‘I will come tonight, and I will kill you’. These words, I didn’t say to her.’[44]
VXXG’s Credibility as a witness
‘MR BURGESS: Yes, VXXG - VXXG, listen to my question. I’m putting to you that you lied on your application and that your father didn’t die in 2010, and that he actually died last year, or in 2021, from COVID. I’m putting to you that the only reason you said that your father died in 2010 was to increase your chance of getting a protection visa. Do you accept that you lied? Or do you say that you didn’t lie? What do you say to that?
VXXG: What kind of lie? I’m not telling anything lie. I said my father died 2010, 14 August. My mum died in December 2022. I’m not lying about that one, and I have no idea who’s talking, like, about me.’[45]
[44] Transcript, p 18, lines 34-46; p 19, lines 1-35.
[45] Transcript, p 25, lines 36-44
Ms M’s evidence
Relevant aspects of Ms M’s evidence are summarised below:
Examination-in-chief by the Tribunal
Ms M affirmed her statements.[46]
[46] Ibid, p 33, lines 29-40.
Cross-examination
Ms M gave the following answers in relation to the issues noted below.
Relationship with VXXG
‘MR BURGESS: The police records state that VXXG had come to stay with you on 14 March 2022. Now, just in terms of your relationship prior to that, how long had you been in a relationship prior to that date?
MS M: I was in Perth. I work for [workplace redacted] so I keep, you know, going to other places. So when I was in Perth I called a friend of mine because I would be posted in Coffs Harbour in a couple of months. So I knew the rental market in Coffs Harbour was not very good, so that is the reason why I asked a friend if he can help me with any contacts that are local, so that they can, you know, help me to know the property markets there for rental. So that is how I met VXXG, through a common friend, because VXXG knew about Coffs Harbour because he was living in Coffs Harbour previously. So that is how I came in contact with him on 5 March 2020. At that time I was still in Perth. So we became friends initially and later we started liking each other, and we - I met him for the first time when I came to Coffs Harbour, not when I was in Perth. So it was not - we never lived together. I always lived in Coffs Harbour or before moving to Coffs Harbour I was in Perth. And he was from Queensland. I think he was on the Gold Coast. So he used to visit me maybe once a month or so, like that.
MR BURGESS: When did you first get into a relationship with him?
MS M: I think the first time he visited me, that was probably when it started, you know, yes.
MR BURGESS: When was that?
MS M: I can’t - yes, I think it was somewhere around 2022. I think he came first during Christmastime, 2021 Christmastime. That was his first visit, yes.
MR BURGESS: So by March had you been in a relationship, or had you just been visiting each other occasionally? What was the status of you relationship at that time?
MS M: We were a bit serious. More than serious. So we wanted to take the further step. Yes, so it was not just friendship. It was more than friendship, so it was definitely relationship.[47]
[47] Transcript, p 34, lines 2-32.
…
MR BURGESS: The police notes say that you had an argument with him, and you asked him to leave. That he refused to leave that night. Is that correct?
MS M: Yes, that’s right. That’s right.
MR BURGESS: It says he said he would leave in the morning, and he became agitated, ripped his clothes off, cutting them with scissors and then throwing your food in the bin?
MS M: Yes, that’s right.
MR BURGESS: It then says the following morning you said you had to go to work, and you asked him to leave, and he again became agitated and said he couldn’t find transport to go home, so back to the Gold Coast?
MS M: Yes, that’s right.
MR BURGESS: And he started throwing things around the room and yelling at you?
MS M: Not in the morning. This happened in the night, but in the morning when I started getting ready - every Tuesday I used to go to [location redacted] from Coffs Harbour. So I lived in Coffs Harbour, I worked throughout the week in Coffs Harbour but every Tuesday I had to go there. So when I said to him, ‘Please leave because I need to go to work’ he became, you know, agitated, saying, you know, ‘I’m not going.’ And then he came with me to [location redacted]. So what I thought was he wanted a lift to [location redacted] and from there he’ll go to Queensland. So that is why I took him. So, yes, that’s what happened.
MR BURGESS: Whilst you were in the car you continued to have an argument; is that right?
MS M: Yes, that’s right. So while I was driving to [location redacted], I tried to go away and then he said he’ll go with me. And then when he got inside the car he was chatting, something. I said, ‘I don’t want to hear. Please keep quiet, I don’t want to see your face.’ So, yes, that is what happened.
MR BURGESS: Yes, and then the police records say that he then said, ‘I don’t want to see yours either,’ and punched you ‑ ‑ ‑?
MS M: Yes.
MR BURGESS: ‑ ‑ ‑ to the side of your face with a closed fist?
MS M: Yes, that’s right.
MR BURGESS: Is that what happened?
MS M: Yes.
MR BURGESS: It then says that you - there were no further incidents. He drove you - you dropped him off in [location redacted] and you went to work. Was he drunk at that time?
MS M: No, he was - he didn’t even have his breakfast because there was nothing, and I thought he’ll have his breakfast there. He did not eat anything in my house, and I just had a cup of tea and then because I did not have time, I just rushed. And he was not drunk at that time. He was drunk only when he got back in the car in the evening.
MR BURGESS: Yes. The records then state that about 3.50 in the afternoon you met with him and noticed he was intoxicated?
MS M: Yes.
MR BURGESS: And you then drove him back to - or you went to drive him back to Coffs Harbour?
MS M: Yes.
MR BURGESS: It says about five minutes into the trip he said to you something like, ‘Do you need more punches’?
MS M: Yes.
MR BURGESS: And you said, ‘Please be quiet. I want to concentrate on the road’?
MS M: Yes.
MR BURGESS: Then he started to punch you to the face and head with closed fists?
MS M: Yes, that’s right. So I was just driving at this - I mean, just like how I’m sitting right now. And he was sitting there next to me, and he punched me with this area, this part. So he came like that, and he punched me like that, with this area with the side of the fist.
MR BURGESS: With the back of his fist?
MS M: Yes, this area. This side of the fist.[48]
[48] Transcript, p 35, lines 5-46; p 36, lines 1-45; p 37, lines 1-18.
MR BURGESS: Okay. It then says in the notes that he punched you about 10 times. Is that correct?
MS M: Yes, that could be because when I was driving I couldn’t resist, I couldn’t, you know, put my hands or stop him. And he had come a bit closer, and he started punching me, like, you know, a couple of times. And then because I was in an 80 zone I was just concentrating on driving because I didn’t want to crash. That’s why I kept on driving and, yes, this happened twice. Like, every time he came closer, and he punched on my nose and my mouth area, I didn’t even know I was bleeding. So it could be around 10 times, yes.
MR BURGESS: He then tried to grab the steering wheel; is that right?
MS M: Yes.
MR BURGESS: And to pull it towards oncoming traffic?
MS M: Yes, that’s right.
MR BURGESS: You held onto the steering wheel and resisted that from happening?
MS M: Yes.
MR BURGESS: It says you were extremely scared and worried for your welfare at the time?
MS M: Yes, that’s right. That’s right. So I was yelling and screaming, ‘Please don’t do it.’ And then I was just focusing on the - my lane. I didn’t want to cross my lane, so
MR BURGESS: You then managed to pull over and to get out of the car, and he walked around the car, and he punched you to the face again?
MS M: Yes.
MR BURGESS: And he said to you, ‘I will come there tonight, and I will kill you’?
MS M: Yes, that’s right.
MR BURGESS: Now, he pled guilty to those offences, and he went to prison for those offences. There was also an apprehended violence order that was put in place to protect you?
MS M: Yes.[49]
[49] Transcript, page 36, line 26 – page 37, line 9
THE TRIBUNAL’S ASSESSMENT OF THE EVIDENCE

The Tribunal found VXXG to be very guarded and self-aware when answering questions. He was clearly weighing and considering his answers to certain questions, while at other times he sought to contradict or qualify the questions about his offending that Mr Burgess put to him.
Ms M presented as a straightforward witness who gave a plausible account of the events.
The Tribunal will now consider the oral testimony, together with the documentary evidence and both parties’ submissions, against the Direction’s requirements to address the key issues in this matter.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
When considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind that the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.
Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens with the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Tribunal consideration: The nature and seriousness of VXXG’s conduct
Paragraph 8.1.1(1)
This paragraph states that, in considering the nature and seriousness of the non-citizen’s ‘criminal offending or other conduct to date’, decision-makers ‘must have regard to the following’:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)    acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
(h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Tribunal has considered both parties’ respective submissions about Paragraph 8.1.1 of the Direction.
Summarising the Respondent’s contentions:
(a)VXXG was convicted of a violent crime against a woman that also constituted family violence. The sentencing judge described VXXG’s conduct as “extremely serious domestic violence offending.”[50]
(b)This offending occurred in March 2022 after VXXG had been notified that his visa was being considered for cancellation.
(c)VXXG was convicted of sexually assaulting a young woman who was impaired[51] and vulnerable.[52]
(d)In both cases, VXXG was sentenced to custodial imprisonment, which is the last resort in the sentencing hierarchy.
(e)There is a trend of increasing serious violence in VXXG’s offending.
[50] G1, p 39.
[51] G1, p 45.
[52] Ibid.
Summarising VXXG’s arguments:
(a)He is extremely remorseful for his conduct takes full responsibility. He had no intention to harm anyone or break the law. He claims that his actions occurred under the influence of alcohol and that he would never hurt or harm anyone intentionally.
(b)Whilst in prison or in detention he has undertaken a range of rehabilitation activities addressing anger management and drug and alcohol abuse amongst others.
Paragraphs 8.1.1(1)(a)(i) 8.1.1(1)(a)(ii) and 8.1.1(1)(a)(iii)
These paragraphs require the Tribunal, when considering this matter, to have regard to, and acknowledge that, violent and/or sexual crimes, crimes of a violent nature against women and acts of family violence are viewed very seriously.
The Tribunal concludes, based on both VXXG’s oral testimony, his offending history[53], Magistrate Crittenden’s August 2022 sentencing remarks,[54] Judge Rosengren’s August 2020 sentencing remarks and the tendered reports from Queensland[55] and New South Wales Police Services[56] reports contained in the G-Documents, that VXXG has committed violent crimes, sexual crimes and crimes of a violent nature against women.
[53] Ibid, pp 32-33.
[54] Ibid, pp 34-42.
[55] R2, pp 45-71.
[56] Ibid, pp 72-85.
Considering whether Mr VXXG has committed acts of family violence, Paragraph 4(1) of the Direction defines family violence to mean "violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful". The definition of “family violence” in paragraph 4(1) refers to specific conduct perpetrated upon “a member of the person’s family”.
Neither “family” or “family member” are defined in the Direction.
Section 46(b) of the Acts Interpretation Act 1901 (Cth) (AIA) provides, in substance, that expressions used in an instrument have the same meaning as in the Act or instrument which enables or authorises them.
The Act itself does not address family violence. The provisions in the Act relating to family units are concerned with establishing who is a member of a person’s family at a particular point in time for migration purposes, for example for the purpose of an application for a protection visa on the basis of being a member of the “same family unit” of the primary applicant.
Section 5G(2) of the Act provides that:
For the purposes of this Act, the members of a person’s family and relatives of a person are taken to include the following:
(i)a de facto partner of the person; …
Section 5CB of the Act provides that:
De facto partners
7For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.
De facto relationship
8For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:
(a)they have a mutual commitment to a shared life to the exclusion of all others; and
(b)the relationship between them is genuine and continuing; and
(c)they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis; and
(d)they are not related by family (see subsection (4)).
Magistrate Crittenden stated in her August 2022 sentencing decision[57] stated that VXXG and Ms M had been in a short term relationship which started around December 2021 and ended in March 2022.[58]
[57] G1, p 34.
[58] Ibid, p 37, lines 36-37.
The Tribunal, looking at both the Direction and the Act as well as Magistrate Crittenden’s decisions, considers that family violence is made out as a result of the above analysis.
Overall, the Tribunal considers that this paragraph carries strong weight in favour of affirming the delegate’s decision not to revoke the cancellation of VXXG’s visa.
Paragraph 8.1.1(1)(b)(i)
This paragraph is not relevant as VXXG has not committed any offences involving causing a person to enter into or to otherwise become a party to a forced marriage. There is no reference in the material to any formal conviction to such offending nor is there any reference to such conduct in an independent and/or authoritative police narrative or similar document.
Paragraph 8.1.1(1)(b)(ii)
This paragraph is relevant as VXXG committed crimes (the July 2019 sexual assault convictions) against a disabled woman.[59]
[59] Ibid, p 45.
The Tribunal considers that this paragraph carries strong weight in favour of affirming the delegate’s decision not to revoke the cancellation of VXXG’s visa.
Paragraph 8.1.1(1)(b)(iii)
This paragraph refers to conduct forming “...the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion”.
There is no reference in either party’s oral or written submissions propounding or mentioning this component of the Direction. The Tribunal finds that this paragraph is not relevant to its assessment of the nature and seriousness of VXXG’s conduct.
Paragraph 8.1.1(1)(b)(iv)
There is no evidence before the Tribunal that VXXG is committed a crime described under this paragraph.
The Tribunal considers that this paragraph carries neutral weight.
Paragraph 8.1.1(1)(c)
In applying this paragraph, the Tribunal is precluded from considering sentences imposed on VXXG for:
(a)any violent offending that he may have committed against women or children,
(b)acts of family violence; and
(c)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.
VXXG has been convicted of damaging property, of interfering with the driver’s control of a vehicle, of breaching his bail conditions and unlicensed driving.[60] The sentences imposed for these involved fines, a 12 month community correction order and in the matter of interfering with the driver’s control of a vehicle, a conviction with no other penalty in line with s.10A of the New South Wales Crimes (Sentencing Procedure) Act 1999.
[60] G1, pp 32-33.
The Tribunal considers that this paragraph carries a slight weight in favour of affirming the delegate’s decision not to revoke the cancellation of VXXG’s visa.
Paragraph 8.1.1(1)(d)
This paragraph addresses two specific aspects of a non-citizen's offending: its frequency and/or whether there is any trend of increasing seriousness.
Frequency
VXXG’s criminal history,[61] in the absence of specific contentions from either VXXG or the Respondent, makes clear that with the exception of the 2016 unlicensed driving conviction, the bulk of his serious offending occurred between May 2018 and March 2022, falling largely into two sets of misconduct. This offending is equivocal, being capable of characterisation as either increasing in frequency or as sporadic but high-frequency when it occurs.
[61] G1, p 33.
Trend of increasing seriousness
VXXG’s criminal history[62] demonstrates a pattern of increasing seriousness, especially in terms of his willingness to use violence.
[62] Ibid.
Paragraph 8.1.1(1)(e)
This paragraph addresses the cumulative effect(s) of VXXG’s repeated offending.
The cumulative effects of VXXG’s offending can be characterised as imposing significant psychological and emotional costs on both Ms M and his 2019 Queensland victim.
Looking broadly, VXXG’s repeated offending has also imposed negative externalities and costs on the Australian community and its policing, judicial and jail systems.
Paragraph 8.1.1(1)(f)
There is no evidence before the Tribunal that VXXG provided false or misleading information to the Minister’s Department, including by not disclosing criminal offending.
The Tribunal considers that this paragraph carries neutral weight.
Paragraph 8.1.1(1)(g)
This paragraph involves the issue of whether VXXG has re-offended since being formally warned about the consequences of further offending in terms of his visa status.
After being notified on or about 2 October 2020[63] that the Respondent was considering cancelling his visa, VXXG then committed the series of crimes involving Ms M In March 2022.
[63] G1, p 119.
Consequently, this paragraph is enlivened and engaged. The prospect of his visa being cancelled had no apparent impact on VXXG’s offending behaviour.
The Tribunal finds that consideration of this paragraph adds weight in favour of affirming the delegate’s decision not to revoke the cancellation of VXXG’s visa.
Paragraph 8.1.1(1)(h)
This paragraph requires the Tribunal to have regard, where the offence or conduct was committed in another country, to whether that offence or conduct is classified as an offence in Australia.
There is no reference in either party’s oral or written submissions propounding or mentioning this component of the Direction.
The Tribunal finds that this paragraph of the Direction is not relevant to any assessment of the nature and seriousness of VXXG’s conduct.
Tribunal finding: The nature and seriousness of VXXG’s conduct.
The Tribunal has sought above to apply and consider each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction.
With reference to the relevant and applicable paragraphs referred above, the Tribunal finds that the totality of VXXG’s unlawful conduct in Australia should be characterised as extremely serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
This aspect of the Direction requires the Tribunal to assess the risk VXXG poses to the Australian community if he reoffends, taking into consideration the nature of any harm and its probability.
Paragraph 8.1.2(1)
This paragraph states:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2)
This paragraph provides that, in considering the risk to the Australian community, a decision-maker must have regard to the following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
In assessing the risk to the Australian community, the Tribunal has first considered the oral testimony and then the Applicant’s and Respondent’s submissions in relation to paragraph 8.1.2.
Summarising the Respondent’s contentions:[64]
(a)If VXXG were to reoffend by committing domestic violence or sexual assault offences in the future, the nature of the resulting harm would include physical harm to members of the community and ongoing psychological consequences for the victims and others as well as broader financial and other consequences for the justice and health systems.
(b)Stressful life events and alcohol appear to play a major role in VXXG’s offending.
(c)In sentencing on 2 August 2022, VXXG’s representative stated that his offending “implied significant issues with relationship with women and also in relation to his mental health issues which he has done nothing to address” and that he had been recommended to do “significant amounts of programs”[65].
(d)The sentencing remarks and sentencing assessment report also refer to VXXG’s poor attitudes, problematic alcohol consumption, underlying issues with aggression escalated by alcohol use and limited insight into his offending[66].
(e)Although VXXG indicated that he would complete courses on coming out of prison[67] he has only completed short courses pertaining to drug and alcohol abuse, addictions, anger management and depression management.[68]
(f)The efficacy of these short courses has not been tested in an unsupervised environment and VXXG has not had rehabilitation to address his attitudes or insight into his offending.
(g)Additionally, VXXG made historically similar representations in December 2021 that he would not re-offend. He then committed further offences in March 2022.
[64] R1, pp 10-11, [31]–[34].
[65] G1, p 36.
[66] Ibid, p 40; R2, pp 134-137.
[67] Ibid, p 61
[68] Ibid, pp 113-116.
VXXG contends:
(a)He understands that what he did was very wrong. He feels for sorry for all the victims, especially Ms M.
(b)He is doing some programs now. He is undertaking a 30 week online domestic violence course, courses on alcohol and drug abuse and SMART recovery. I’m doing here also, alcohol and drugs use, and SMART recovery,
(c)He meets every week with his mental health counsellor or psychologist.[69]
The Tribunal’s Consideration: The nature of the harm to individuals or the Australian community were VXXG to engage in further criminal or other serious conduct.
[69] Transcript, p 47, lines 8-23.
VXXG’s criminal conduct has imposed significant costs on the Australian community in terms of the investigative, judicial, and corrective resources required to address the results of his offending.
His criminal record indicates that if he is back in the community, there is a strong likelihood based on his past behaviour that he will drink alcohol. In turn, this drinking behaviour creates the increased likelihood that he will re-offend.
If VXXG re-offends in a similar way to his earlier offending, the potential harm to the Australian community would be substantial and involve significant adverse consequences on the victims of such re-offending.
The Tribunal’s Finding: The nature of the harm to individuals or the Australian community were VXXG to engage in further criminal or other serious conduct.

The potential harm arising from a repeat of VXXG’s conduct encompasses a broad range of substantial and adverse physical, psychological, financial, and societal consequences.
Further criminal conduct of the categories VXXG has previously engaged in would result in material physical, psychological and financial harm to the Australian community.
The Tribunal’s Consideration: the likelihood of the non-citizen engaging in further criminal or other serious conduct.
The Tribunal has holistically considered the totality of the evidence addressing the likelihood of VXXG engaging in further criminal or serious conduct.
The issues surrounding the consideration of “likelihood” under paragraphs 8.1.2(1) and (2) are drawn, have been extensively considered by the Tribunal and superior courts.[70]
[70] See, for example, Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888 (20 April 2020); QKVH and Minister for Home Affairs [2020] AATA 4431 (QKVH 2020); Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019); Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153.
First, the Full Court of the Federal Court in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187, 194 stated that the reference to ‘criminal conduct’ is:
“…not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor’s character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material.”
The clear legislative intention is that the threshold is whether there is ‘a’ risk.[71] The Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) specifically removed the word ‘significant’ from s 501(6)(d) leaving it as ‘a’ risk.[72] On this occasion the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Act 2014 stated (at [46]):
“The purpose of this amendment is to clarify the threshold of risk that a decision maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.”
[71] See the discussion in GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019) at [48]–[52].
[72] See the discussion in Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 at [27].
In Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) Chief Justice Brennan, Justices Dawson, Toohey, Gaudron, McHugh and Gummow of the High Court observed as follows (at 574-575): [73]
“The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.”
[Added emphasis]
[73] QKVH and the Minister for Home Affairs (“QKVH 2020”) [2020] AATA 4431 (2 November 2020) at [5].
Justice Mortimer (as Her Honour was at the time) explored the notion of risk and its nexus to future possibilities in Murphy v Minister for Home Affairs[2018] FCA 1924, [37], where Her Honour noted:[74]
“That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.
[74] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].
Consequently, by engaging in the task described by Justice Mortimer and applying the reasoning in Guo, there is “a risk” or a likelihood of VXXG engaging in further criminal or serious conduct.
The Tribunal does not have the benefit of an expert risk assessment to assist its consideration of this issue beyond Corrective Services NSW’s assessment that he posed a medium risk of re-offending using the Level of Service Inventory – Revised test.[75]
[75] R1, p 136.
A consideration of the risk or likelihood of VXXG engaging in further criminal or serious conduct should encompass the factors that facilitate the risk or, conversely, hinder the risk. Doing this enables the Tribunal to consider Justice Mortimer’s question as to “whether the risk should be ‘tolerated’.”
The main driver and risk factor involved in VXXG’s offending is alcohol abuse.
It is relevant to consider the Corrective Services NSW Sentencing assessment report in relation to VXXG:[76]
[76] Ibid, pp 134-138.
“Factors related to offending[77]
[77] Ibid, p 135.
History of anti-social behaviour
•   [The Applicant]’s criminal history began in 2015 in Victoria with vehicle and driving offences.
•   In Queensland he was convicted of sexual assault x 2 in 2018 and given a suspended sentence expiring [in May 2020].
Attitudes
•   [The Applicant] held the attitude his former partner was unsupportive and had upset him, which justified his decision to consume alcohol and become intoxicated.
• He displayed a dismissive attitude towards his offending, claiming not to remember much about the events. [The Applicant] stated he “was drunk at the time and whatever happened was because of that.”
• [The Applicant] believes as he has apologised for his behaviour and asked for forgiveness, as well as promising it will not happen again, the matter should be resolved. He has failed to take responsibility for his offending.
Alcohol
• Although [The Applicant] purports this has never happened before and his alcohol consumption is social, enquires suggest [The Applicant] cannot control the amount he consumes once he starts drinking, which results in frequent intoxication.
Domestic Violence
• [The Applicant]‘s aggression seems to be instrumental. He became intoxicated again following the initial offending, justifying his alcohol consumption because he was upset.
•   [The Applicant] appears to have underlying issues with aggression which are escalated by his alcohol use.
Responsivity
Insight into impact of offending
•   [The Applicant] has limited insight into the causes of his offending, blaming his emotional state and alcohol for his state of mind at the time.
•   He has reconsidered his alcohol use and claims not to have consumed any alcohol since the offence. However, this could not be verified.
•   [The Applicant] does acknowledge the negative effect his behaviour has had on the victim, and therefore he has apologised and asked for her forgiveness.
Willingness and ability to undertake intervention
•   [The Applicant] appears to be motivated to change his offending behaviour.   He is aware of ongoing feelings of struggle and depression which may need to be addressed, and he has limited strategies to cope with these psychosocial stressors.
•   He is willing to engage in interventions as required, to address his offending behaviour.”
VXXG does appear to have some awareness or insight of the risk that his consumption of alcohol creates.
In terms of rehabilitation, VXXG has completed Oakdene House Foundation’s Life Choices Program[78] which supports his insight into the risk.
[78] A3.
Aside from this, VXXG appears to have no static risk management factors and no dynamic risk management factors such as coping strategies assisting him.
The Tribunal observes that there is very little in terms of either static or dynamic support or protective factors that VXXG has successfully demonstrated or established. His rehabilitation efforts have not been tested in the more permissive atmosphere of the general community.
The Tribunal’s finding: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal finds that the risk to the Australian community should VXXG commit further offences or engage in serious conduct is a material risk.
This finding is based, first, on the high likelihood that VXXG may engage in further criminal or other serious conduct, using his history as a guide and, second, that the nature of the harm to individuals or the Australian community if he did so would be serious considering his offending.
Conclusion: Primary consideration 1: Protection of the Australian community
This consideration weighs heavily in favour of affirming the delegate’s decision to not revoke the cancellation of VXXG’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN.
Paragraph 8.2 of the Direction states:
1The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
2This consideration is relevant in circumstances where:
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
3In considering the seriousness of the family violence engaged in by the noncitizen, the following factors must be considered where relevant:
(a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
(i)     the extent to which the person accepts responsibility for their family violence related conduct;
(ii)    the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii)   efforts to address factors which contributed to their conduct; and
(d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the noncitizen’s migration status, should the non-citizen engage in further acts of family violence.
Paragraph 4 of the Direction contains this definition:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty.
The Tribunal’s Consideration
When considering paragraph 8.2, the Direction states that the Tribunal must consider the elements of paragraph 8.2(3) where relevant.
Justice Perram’s decision in Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[79] supports the view that a decision-maker is not usually required to take a matter into account repetitiously.[80]
[79] Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
[80] Ibid, [26].
Justice Kennett’s decision in Demir v Minister for Immigration, Citizenship and Multicultural Affairs[81] offers a different perspective on this argument. At [25] Justice Kennett found:
“The applicant relies on the reference by the Tribunal to “three primary considerations” in its reasons at [102] (set out above at [14]) to submit that the Tribunal was diverted from the proper performance of its task by the number of considerations that weighed against revocation, having failed to appreciate that one of these considerations (family violence) overlapped significantly with the others. That reading takes insufficient account of the fact that the Tribunal is a human, rather than an algorithmic, decision-maker. The “weight” that the Tribunal gave to the three primary considerations was described (at [102]) as something that it had “decided” in the “the circumstances of this case”. This is properly understood as reflecting the Tribunal’s ultimate conclusion as to what was the correct decision in the light of the matters it was required to consider; not a mechanistic weighing of three considerations pointing in one direction against two pointing in the other. The conclusion is not rendered irrational, in any presently relevant sense, by reason of the relevant considerations having been identified and enumerated by reference to the Direction. If the Tribunal was prompted to give more attention than it would otherwise have done to the fact that the applicant’s offending involved family violence, that simply reflects the Direction having had an influence of the kind envisaged in Jagroop.”
[Emphasis added]
[81] DEMIR V MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS [2023] FCA 870
The Tribunal consequently considers it reasonable to again consider family violence in this particular matter, this time in the context of Primary Consideration 2.
VXXG’s offending in March 2022 against Ms M involved family violence in circumstances where it was committed against a person who he was in a relationship with at the time of the offending. Magistrate Crittenden stated that it would have caused the victim fear and was both violent and threatening.[82]
[82] G1, p 39.
In terms of paragraph 8.2 (3), an assessment of VXXG’s March 2022 offending shows a high frequency on the day in question, as well as a trend of increasing seriousness on that day. The cumulative effects of that day include a more distant relationship between VXXG and the victim. Based on VXXG’s oral testimony, the Tribunal is reluctant to find that he fully accepts responsibility for his actions or understands their impact, while there was little evidence of his efforts to address the factors contributing to his violent acts beyond his participation in the Oakdene House Foundation Program.
The Tribunal considers that paragraph 8.2 is enlivened.
Conclusion: Primary consideration 2: Family violence committed by the non-citizen.
This consideration weighs strongly in favour of affirming the delegate’s decision to not revoke the cancellation of VXXG’s visa.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA.
Paragraph 8.3 of the Direction provides:
1Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
2In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
3The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
4Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a)the length of time the non-citizen has resided in the Australian community, noting that:
(i)     considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
(ii)    more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii)   less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.
The Respondent’s contentions are summarised as follows:
(a)VXXG has no immediate family in Australia and the most recent statement from Ms M does not suggest that they are continuing to be in a relationship, stating instead that she is looking forward to having a good friendship with him.[83]
(b)VXXG has provided evidence from four persons who describe him as a good friend,[84] however there is no evidence as to the strength or nature of those relationships.[85]
(c)VXXG has lived in Australia for 15 years.
(d)VXXG remained in Australia as an unlawful non-citizen from 2011 to 2018.
(e)VXXG was not an ordinary resident during his formative years, having arrived when he was 24 years old.
(f)VXXG’s only evidence of making a positive contribution to the community relates to his employment.
[83] G1, p 102.
[84] Ibid, pp 82-85.
[85] Ibid.
The Tribunal’s Consideration
The Tribunal is required to give more weight to a non-citizen’s ties to their children or children who are Australian citizens, Australian permanent residents or people who have a right to remain in Australia indefinitely, such as occurs in this matter.
The Tribunal must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community, have regard to the length of time they have resided in the Australian community, whether they have been resident here during their formative years, whether they have contributed positively to the Australian community and correspondingly less weight should be given where they were not resident in Australia during their formative years or began offending soon after arriving in Australia.

While weight must be given to the length of time VXXG has resided in the Australian community, this is qualified by VXXG overstaying his visa from 2011 (three years after he arrived) and the consequential question about the legality of his employment from 2011.
The Tribunal acknowledges the uncontested evidence that VXXG was employed and claimed to pay taxes.
Conclusion: Primary consideration 3: The Strength, Nature and Duration of Ties to Australia.
This consideration weighs in favour of affirming the delegate’s decision to not revoke the cancellation of VXXG’s visa.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION.
Paragraph 8.4 of the Direction requires decision-makers to determine, where relevant, if revocation is in the best interests of any minor children in Australia.
VXXG has no minor children in Australia.
This consideration is neutral.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.5(1) of the Direction provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In addition to the guidance provided by paragraph 8.5(1) of the Direction, paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences in question are such that the Australian community would expect that the person should not be granted or continue to hold a visa.
In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns because of conduct in Australia or elsewhere, of the following kinds:
(a)acts of family violence;
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties;
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery;
(f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations apply, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
As with Paragraph 8.5(4) of the Direction, this consideration is ‘about the expectations of the Australian community as a whole’, and decision makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in the particular case.
Clause 8.5(4) of the Direction correlates with the reasoning of the Full Court of the Australian Federal Court (FCAFC) in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (“FYBR”).
Notwithstanding the different pathways in judicial reasoning, the plurality of the Court in FYBR held that “Expectations of the Australian community” is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[86]
[86] FYBR (2019) 272 FCR 454 (“FYBR”), at 471–2 [66] (Charlesworth J), and 476 [91] (Stewart J).
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[87]
[87] Ibid at 473 [75]– [76] (Charlesworth J).
The Tribunal notes the High Court of Australia refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’[88]
[88]FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
Observing the norm stipulated in paragraph 8.5(1), the Tribunal now considers the guidance provided by paragraphs 5.2(2) to (6) of the Direction:
2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With respect to decisions to refuse, cancel, and revoke cancellations of a visa, However, Australia will generally may afford a higher level of tolerance of criminal or other serious conduct by non citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
The Tribunal has found that VXXG has committed acts of family violence, serious crimes against women, including crimes of both a sexual nature and of a violent nature and serious crimes against a vulnerable person. Paragraph 8.5(2) of the Direction is enlivened.
The next question is whether there are any factors which modify the Australian community’s expectations.
This question is informed by the principles in paragraphs 5.2(4) to (6) of the Direction. In summary these are:
(a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa.
(b)The Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time.
(c)In relation to decisions to refuse, cancel and revoke cancellations of visas, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age.
(d)The level of this tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(e)the nature of a non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify a visa outcome that is not adverse to the non-citizen.
(f)In particular, the inherent nature of certain types of conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(3) provides that the Australian community's expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. The Direction further explains at Paragraph 8.5(4):
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision – makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
Sub-paragraph 5.2(4) uses the term ‘limited stay visa’ which is not defined in the Act. The Applicant in this case held a Class WC Subclass 030 Bridging C visa until it was cancelled on 23 August 2022. This visa is granted for the duration of an application for a protection visa. This visa permits an applicant awaiting the resolution of their protection visa application to remain in Australia indefinitely pending that application. As the visa held by the Applicant to remain in Australia without any limit on the duration of stay, the visa held by the Applicant cannot be classified as a limited stay visa.
Tribunal’s Consideration
VXXG held a Class WC Subclass 030 Bridging C visa. This was not a permanent visa allowing the visa holder to remain in Australia indefinitely, but nor was it a limited-stay visa.[89]
[89] Migration Regulations 1994 (Cth), reg 030.511.
This implies that sub-paragraph 5.2(4)’s lower tolerance does not apply.
VXXG has lived in Australia since he was 24 and began offending in 2015. VXXG has made some small contributions, through employment, to the Australian community.
Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life. VXXG has not done so.
The Tribunal has also found VXXG’s offending conduct to be extremely serious.
The Tribunal also observes the requirements of paragraph 8.5(3) of the Direction which dictate that the expectations of the Australian community apply regardless of whether a non-citizen poses a measurable risk of causing physical harm to the Australian community. The Tribunal has found above that VXXG poses a risk of re-offending.
The Tribunal is satisfied that VXXG has breached the Australian community’s expectations by his criminal offending which involved serious breaches of Australian laws. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.
Conclusion: Primary consideration 5: Expectations of the Australian community
This consideration weighs significantly in favour of affirming the delegate’s decision not to revoke the cancellation of VXXG’s visa.
OTHER CONSIDERATIONS
It is necessary at this point to consider the Other Considerations listed in paragraph 9 of the Direction. The Tribunal now considers each of the four sub-paragraphs (a), (b), (c) and (d) set out in Other Considerations.
Other Consideration(a): Legal consequences of the decision
Paragraph 9.1 of the Direction directs a decision-maker to consider the following:
1Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
2A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
3International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
9.1.1 Non-citizens covered by a protection finding
1Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.
2Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
3Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will Page 12 of 24 Direction No. 99 - Migration Act 1958 - Direction under section 499 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations.
9.1.2 Non-citizens not covered by a protection finding
1Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
2However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
3Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non-revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the noncitizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.
VXXG has claimed that Australia’s non-refoulement obligations are engaged[90] under Australian domestic law.[91] These claims objectively indicate the potential for Australia’s non-refoulement obligations to be engaged for the purposes of this matter.
[90] A1; G1, p 100.
[91] Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417; [2022] HCA 1, [30] (Plaintiff M1/2021); Respondent SFIC [53].
Acknowledging Plaintiff M1/2021v Minister for Home Affairs,[92] the Tribunal should consider VXXG's claims and ‘read, identify, understand and evaluate’ these claims. In doing so, it should also consider whether the claims or the alleged facts underpinning the claims establish another reason why the visa cancellation decision should be revoked and whether they support any other matter relevant to the Tribunal’s exercise of the discretion under the Direction.
[92] Ibid, [24]-[25] and [30].
VXXG has previously made an application for a protection visa. He is prevented by s 48A of the Act from making a further application for a protection visa while he is in the migration zone (unless the Minister determines that s 48A does not apply to him (see ss 48A and 48B of the Act)).
In his protection visa application, VXXG claimed that his parents had been actively involved in politics in India, his father was a councillor with a political party, after his father’s death he was targeted by rival groups trying to pressure him into not running as a candidate to take over his father’s seat and they had tried to abduct him and kill him and his family belongs to a lower caste and have been targeted.[93]
[93] G1, pp 118-119; pp 120-121.

A delegate on 5 November 2020 and the Tribunal on 4 April 2023 both found that VXXG is not to be owed protection. VXXG has sought judicial review of the decision but the matter has not yet been listed for hearing.
In his representations in support of revocation of the decision, VXXG has claimed that his parents have a political background and as a result his life is threatened in India and he is also a minority group.[94]
[94] Ibid, p 64.
Those claims were considered by the delegate and the Tribunal. An earlier decision of the Tribunal is information or material with which the Tribunal may inform itself (s 33(1)(c) of the AAT Act) and it can give it the weight which it considers to be appropriate.
Where no new evidence has been advanced which relevantly undermines or alters the effect of the earlier decision, the earlier decision will have significant if not overwhelming weight.
The Tribunal has considered this decision and VXXG’s claims and finds that these claims do not give rise to international non-refoulement obligations.
In circumstances where the Tribunal finds that there is no non-refoulement obligation owed in respect of the applicant, the Minister contends this consideration weighs neutral.
Finally, as the Tribunal has made a decision on VXXG’s substantive visa application (for a protection visa), the visa which is the subject of these proceedings would have ceased on 9 May 2023.
This means that even if the Tribunal set the decision under review aside, the applicant presently holds no visa entitling him to remain in Australia and as such he would still be liable for removal.
Tribunal Finding: Other Consideration (a): Legal consequences of the decision.
The Tribunal finds that this Other Consideration (a) is neutral.
Other Consideration (b): Extent of impediments if removed.
Clause 9.2(1) of the Direction provides:
1Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
Tribunal’s Consideration
This aspect of the Direction requires the Tribunal to assess and consider the extent of any impediments that VXXG, if removed from Australia to India, will face in establishing himself and maintaining basic living standards (in the context of what is generally available to other Italian citizens), taking the specific factors below into account.
Sub-paragraph 9.2(1)(a) – the non-citizen’s age and health
VXXG is 39 years old.
VXXG has not given any evidence of a physical or mental health issue that would pose an impediment if he were to be returned to India.
Sub-paragraph 9.2(1)(b) – any substantial language or cultural barriers
The Tribunal considers, based on the evidence before it, that VXXG would face few, if any linguistic difficulties if he returned to India.
Sub-paragraph 9.2(1)(c) - any social, medical and/or economic support available to them in that country
The Tribunal considers that VXXG would at best have access to same level of social and economic support as other Indian citizens.
Tribunal’s analysis and consideration
The Tribunal has considered the extent of any impediments that VXXG, if removed from Australia to India, will face in establishing himself and maintaining basic living standards, taking into account the specific factors set out in paragraph 9.2(1).
Tribunal finding: Other Consideration (b) Extent of impediments if removed.
Having regard to the analysis referrable to each of the three sub-paragraph components of this other consideration (b), the Tribunal finds that VXXG would likely not face any significant impediments if he was returned to India.
This consideration is neutral.
Other Consideration (c): Impact on victims
Clause 9.3(1) of the Direction states:
Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
Tribunal finding: Other Consideration (c): Impact on victims.
Ms M has stated, notwithstanding her history with VXXG, that she wishes to support VXXG and looks forward to a good friendship with him.[95] She does not describe or detail what she means by support but it appears to the Tribunal that the relationship has cooled.
[95] G1, p 102.
M gave oral testimony that she was willing to be friends with VXXG, that he is a changed man and that he has no other good friends.[96]
[96] Transcript, p 37, lines 30-44
The Respondent contends that caution should be exercised in giving weight to evidence given by victims of domestic violence, given the complicated nature of the relationship between the victim and the person who committed violence against her.
Acknowledging the Respondent’s contention and noting Justice Kerr’s decision of PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[97] the Tribunal considers that the impact on M may well be mixed if VXXG is returned to India.
[97] PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235.
The Tribunal finds that this Other Consideration (c) provides limited weight in favour of affirming the delegate’s decision to cancel VXXG’s visa.
Other consideration (d) Impact on Australian business interests if VXXG cannot remain here.
Paragraph 9.4 (1) compels an assessment of VXXG’s employment links to Australia with reference to any impact his removal may have on, “Australian business interests”.
There is no evidence before the Tribunal that shows that VXXG’s removal would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Tribunal finding: Other Consideration (d): the impact on Australian business interests if VXXG cannot remain here.
The Tribunal finds that Other Consideration (d) carries neutral weight.
FINDINGS: OTHER CONSIDERATIONS
The Tribunal now summarises the respective weights it has allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:
Other Consideration (a) – legal consequences of the decision:
·The Tribunal finds that this Other Consideration (a) is neutral.
Other Consideration (b) - extent of impediments if removed:
·The Tribunal finds that this Other Consideration (b) is neutral.
Other Consideration (c) - impact on victims:
·The Tribunal finds that this Other Consideration (c) provides limited weight in favour of affirming the delegate’s decision to cancel VXXG’s visa.
Other Consideration (d) – Impacts on Australian business interests:
·This consideration carries a neutral weight.
ADDITIONAL CONSIDERATIONS
The Direction does not limit the other considerations to those listed in the Direction (paragraph 9(1) of the Direction).[98]
[98] Per Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471.
There are no additional considerations before the Tribunal.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, VXXG does not pass the character test.
In determining whether there is ‘another reason’ to revoke the cancellation decision, the Tribunal has applied the Direction to this matter’s specific circumstances.
The Tribunal find as follows:
Primary Consideration 1 - protection of the Australian community from criminal or other serious conduct:
·This consideration weighs heavily in favour of affirming the delegate’s decision to not revoke the cancellation of VXXG’s visa.
Primary Consideration 2 - whether the conduct engaged in constituted family violence:
·This consideration weighs strongly in favour of affirming the delegate’s decision to not revoke the cancellation of VXXG’s visa.
Primary Consideration 3 - the strength, nature and duration of ties to Australia:
·This consideration weighs in favour of affirming the delegate’s decision to not revoke the cancellation of VXXG’s visa.
Primary Consideration 4 - best interests of minor children in Australia affected by the decision:
·This consideration is neutral.
Primary Consideration 5 – expectations of the Australian Community:
·This consideration weighs significantly in favour of affirming the delegate’s decision not to revoke the cancellation of VXXG’s visa.
The Tribunal has also set out above the weight attributable to the other considerations.
A comprehensive, holistic and integrated view of the primary considerations, the other considerations in the Direction, together with the additional consideration favours on balance affirming the delegate’s decision to not revoke the cancellation of VXXG’s visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 9 June 2023 to not revoke the cancellation of the Applicant’s visa.

I certify that the preceding 214 (two hundred and fourteen) paragraphs are a true copy of the reasons for the decision herein of Member D. Cosgrave

...............................[SGD].............................
Associate
Dated: 19 October 2023

Dates of hearing: 14 and 15 August 2023

Applicant: Self-represented

Solicitors for the Respondent: Ashley Burgess

Sparke Helmore Lawyers
ANNEXURE A

EXHIBIT DESCRIPTION OF EVIDENCE PARTY DATE OF DOCUMENT DATE RECEIVED

G1 2023_4310 VXXG - G-documents.pdf (Pages 1 to 176) T - 30 June 2023

Applicant Submissions

A1 Applicant Statement A 17 July 2023 08 August 2023

A2 Ms M Letter of Support A 07 August 2023 08 August 2023

A3 Oakdene House Life Choices Group Program Certificate.pdf A 13 June 2023 08 August 2023

A4 Oakdene House Progress Report 05 July 2023.pdf A 05 July 2023 08 August 2023

A5 MRD Member Costa Decision A 04 April 2023 08 August 2023

A6 Attendance letter VXXG.pdf A 09 August 2023 09 August 2023

Respondent’s Submissions

R1 Respondent’s Statement of Facts Issues and Contentions (1 to 17 pages) R - 31 July 2023

R2 2023_4310 VXXG - Tender Bundle (Pages 1 to 200) R - 31 July 2023

[2023] AATA 3362

5 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Dates of hearing:	14 and 15 August 2023
Applicant:	Self-represented
Solicitors for the Respondent:	Ashley Burgess
Sparke Helmore Lawyers

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	2023_4310 VXXG - G-documents.pdf (Pages 1 to 176)	T	-	30 June 2023
Applicant Submissions
A1	Applicant Statement	A	17 July 2023	08 August 2023
A2	Ms M Letter of Support	A	07 August 2023	08 August 2023
A3	Oakdene House Life Choices Group Program Certificate.pdf	A	13 June 2023	08 August 2023
A4	Oakdene House Progress Report 05 July 2023.pdf	A	05 July 2023	08 August 2023
A5	MRD Member Costa Decision	A	04 April 2023	08 August 2023
A6	Attendance letter VXXG.pdf	A	09 August 2023	09 August 2023
Respondent’s Submissions
R1	Respondent’s Statement of Facts Issues and Contentions (1 to 17 pages)	R	-	31 July 2023
R2	2023_4310 VXXG - Tender Bundle (Pages 1 to 200)	R	-	31 July 2023