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

Wardhana and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 52 (23 January 2024)
Division:GENERAL DIVISION
File Number: 2023/8071
Re:Farid Yuliar Ranu Wardhana
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:23 January 2024
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), this Tribunal affirms the decision made on 31 October 2023 by a delegate of the Respondent to not revoke the mandatory cancellation of the Applicant’s Partner (Subclass 100) visa.
..........................[SGD]...........................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – where Applicant fails the character test – where Applicant committed acts of family violence under influence of illicit substances – where Applicant has relapsed into illicit substance consumption multiple times post rehabilitation – Tribunal finding the risk of reoffending to be unchanged- protection and expectations of the Australian community along with family violence committed by the Applicant outweigh ties to Australia, interests of minor children and impediments upon return – Tribunal finding there is no other reason to revoke the mandatory cancellation decision – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Bartlett v The Minister for Immigration and Boarder Protection (Migration) [2017] AATA 1561
Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Walker v Minister of Home Affairs [2020] FCA 909
Secondary Materials
Ministerial 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
Senior Member Theodore Tavoularis
23 January 2024

Mr Farid Yuliar Ranu Wardhana (‘the Applicant’) is a 38-year-old citizen of Indonesia. He was born on 11 July 1985 and he arrived in Australia on 6 February 2013.[1] Apart from an approximate two month period he spent in Indonesia from 12 December 2017 to 7 February 2018, the Applicant has not spent any other time out of Australia since his initial arrival in 2013.[2]
[1] R1, p 78.
[2] Ibid.
On 13 January 2015, the Applicant was granted a Partner (Subclass 100) visa (‘Visa’). That Visa was mandatorily cancelled by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’ or ‘the Minister’) on 9 May 2023 pursuant to

s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’). The Applicant sought revocation of the mandatory cancellation decision on 23 May 2023.
The basis of the mandatory cancellation of the Applicant’s Visa derived from the imposition of a custodial term of 12 months’ imprisonment on 15 November 2022. By a decision dated 31 October 2023[3] the Respondent’s delegate refused to revoke the mandatory cancellation decision. There followed an application to this Tribunal on 31 October 2023[4] seeking review of the refusal to revoke decision (‘Decision Under Review’).
[3] Ibid, pp 13-27.
[4] Ibid, pp 4-8.
The hearing of the instant application proceeded before me in-person on 8 and 9 January 2024 (‘Hearing’). The Hearing received both oral and written evidence. The written evidentiary material was reduced to an agreed Exhibit List, a true and correct copy of which is attached to these Reasons and marked ‘Annexure A’. The only oral evidence received at the Hearing was from the Applicant.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4 The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act.[5] There are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; and if not
(b)whether there is another reason why the decision to cancel the Applicant’s Visa should be revoked.
[5] See generally R1, G10 - G13.
Does the Applicant pass the character test?
I am satisfied that the Applicant’s incapacity to pass the character test arises as a matter of law.[6] This is because this Applicant has a ‘substantial criminal record’ due to him being sentenced to a term of imprisonment of 12 months on 15 November 2022.[7] Accordingly, it can be safely found that he does not pass the character test and, as a consequence, cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his Visa to be revoked.
[6] Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63].
[7] Pursuant to ss 501(6)(a) and 501(7)(c) of the Act.
Is there another reason why the decision to cancel the Applicant’s Visa should be revoked?
Section 499(2A) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about either the performance of those functions or the exercise of those powers. For present purposes in reviewing a non-revocation decision pursuant to s 501CA(4) of the Act, the Tribunal must have regard to the ‘Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (‘the Direction’).
For the purposes of deciding whether or not to revoke the mandatory cancellation of a

non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are as follows:
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 non-citizens 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.
6
Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the

non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(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 measurable risk of causing physical harm to the Australian community.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:
(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; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to
keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by

non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
I will consider each in turn.
The nature and seriousness of the Applicant’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Summary of the Applicant’s offending
Prior to any assessment of the nature and seriousness of the Applicant’s conduct, it is pertinent to provide a summary of the extent of his history of criminally offending in this country. The Applicant’s offending history is one of relative temporal brevity but it records a pattern of conduct demonstrating a ‘very intense’ level of his commission of criminal offences. In short order, his offending history can be summarised in these terms:
·offending period: based on the occurrence of sentencing episodes to deal with his offending, the Applicant has been committing offences for the period February 2021 to March 2023 which amounts to just over a two year period;
·he has convictions for 59 separate offences;
·he has found himself before lawful authority for sentencing on 13 separate occasions;
·judicial sentencing officers have imposed virtually the full range of sentencing options upon the Applicant:
othe totality of fines imposed on him amounts to $4,100;
oa total of $89.80 has been imposed on him by way of compensatory orders;
ohe has received 10 non-custodial sentences in the form of fines, probation, suspended sentences – all in lieu of actual custodial time;
ohe has received 11 custodial sentences. The total amount of head custodial time imposed on him is two years, 10 months and 42 days. This amounts to virtually three years of head custodial time;
·it should be noted that there are two instances in the offending history where the Applicant’s repeated offending during a suspended sentence period caused the original sentencing court to again deal with the Applicant and to order an extension to the period of suspension:
oon 6 June 2022, the previously imposed 12 month period of suspension was extended by one month;
oon 15 November 2022, the immediately preceding extended period was further extended by a period of three months.
In its Statement of Facts, Issues and Contentions (‘SFIC’), the Respondent has helpfully provided the following precis of the types of offences the Applicant has committed.[8] They comprise:
·six convictions for ‘enter premises and commit indictable offence’;
·14 convictions for ‘stealing’;
·eight convictions for ‘stealing after previous conviction’;
·two convictions for ‘unlawful use of a motor vehicle’;
·two convictions for ‘unlawful possession of weapons’;
·two convictions for ‘possessing tainted property’;
·four convictions for ‘fraud’; and
·one conviction for ‘breach of bail’.
[8] R2, pp 7-8, [29].
The Applicant has also compiled a traffic history. It can be summarised in these terms:
·in terms of its length, the traffic history records infringements committed from April 2021 to August 2021 which is a period of about four months; and
·the traffic history discloses seven infringements. They comprise:
othe commission of five unremarkable infringements detected while he was driving a vehicle. These infringements attracted the imposition of a cumulative amount of seven demerit points and fines totalling $1,402;
oone conviction for driving a motor vehicle while under the influence of alcohol with a blood alcohol reading of .058 which placed him over the general limit but not over the mid – alcohol limit. He was fined the sum of $350 and disqualified from driving for one month;
oone conviction for driving while disqualified for which he does not appear to have been fined but was disqualified from driving for a period of two years.
Paragraph 8.1.1(1)(a)
Paragraph 8.1.1(1)(a) of the Direction contains three categories of offending which, if committed by a non-citizen seeking restoration of a visa, are said to compel a merits-based decision-maker to find such offending to be ‘very serious’. The three categories are (1) violent and / or sexual crimes;[9] (2) violent offending against women or children;[10] and (3) domestically violent conduct regardless of whether or not a sentence was imposed.[11]
[9] Paragraph 8.1.1(1)(a)(i) of the Direction.
[10] Paragraph 8.1.1(1)(a)(ii) of the Direction.
[11] Paragraph 8.1.1(1)(a)(iii) of the Direction.
The Applicant does not appear to have any conviction(s) for crimes of a violent nature against a woman.[12] That said, it is beyond argument that he has committed acts of family violence which can be taken into account for the purposes of the instant assessment regardless of whether or not a sentence for such conduct has been imposed.[13] It can be safely found that the Applicant’s commission of acts of family violence attracts the operative effect of paragraph 8.1.1(1)(a)(iii) of the Direction such as to facilitate a finding that his unlawful conduct in this country has been of a ‘very serious’ nature.
[12] Paragraph 8.1.1(1)(a)(ii) of the Direction
[13] Paragraph 8.1.1(1)(a)(iii) of the Direction.
Paragraph 8.1.1(1)(b)
The Applicant has no conviction for conduct involving him causing a person to enter into a forced marriage or of him otherwise being a party to a forced marriage.[14] He does not appear to have convictions for offending against vulnerable members of the community or against government representatives or officials in the course of their duties.[15] Given the formulation of the character test referrable to the instant decision, which test the Applicant fails as a matter of law,[16] I am not required to make any finding about whether any of his conduct forms the basis of a finding that he does not pass an aspect of the character test that is dependent on my decision.[17] The material does not contain any reference to a crime committed by the Applicant during his time in immigration detention.[18]
[14] Paragraph 8.1.1(1)(b)(i) of the Direction.
[15] Paragraph 8.1.1(1)(b)(ii) of the Direction.
[16] Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63].
[17] Paragraph 8.1.1(1)(b)(iii) of the Direction.
[18] Paragraph 8.1.1(1)(b)(iv) of the Direction.
The chapeau to paragraph 8.1.1(1)(b) of the Direction does not limit the range of conduct which can be found to be serious or which is otherwise considered serious by the Australian Government and the Australian community. Therefore, while the Applicant’s offending history may not carry convictions falling within any of the four categories of this paragraph 8.1.1(1)(b), it is not unsafe to find that the totality of his extensive offending surely comprises at least ‘serious’ offending. But such a finding must be tempered by the reality that, as outlined earlier, his conduct in the realm of domestic violence squarely engages the operative effect of paragraph 8.1.1(1)(a)(iii) which safely renders his offending as ‘very serious’.
Paragraph 8.1.1(1)(c)

In applying this particular paragraph, I am precluded from taking into account sentences imposed on this Applicant for:
(i)any violent offending he may have committed against women and children;[19]
(ii)acts of family violence;[20] and
(iii)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[21]
[19] Paragraph 8.1.1(1)(a)(ii) of the Direction.
[20] Paragraph 8.1.1(1)(a)(iii) of the Direction.
[21] Paragraph 8.1.1(1)(b)(i) of the Direction.
I have already found the Applicant has no convictions for violent offending against women or children and that he has not being convicted of any offence causing a person to enter into a forced marriage. However, I have found that his history contains repeated references to the commission of acts of family violence and the sentences that he received for such conduct can be taken into account for present purposes.
Earlier in these Reasons, I summarised the nature and extent of sentencing regimes imposed on the Applicant. It suffices to say that virtually the full range of sentencing options have been imposed on him, including the imposition of multiple custodial terms. The imposition of a custodial term represents the last resort in the sentencing hierarchy and such a sentence should be viewed as a reflection of the objective seriousness of the offences committed by this Applicant.[22]
[22] PNLB and Minister for Immigration and Border Protection [2018] AATA 162.
There is no escaping the reality that the impressive range of sentencing modalities imposed on this Applicant, together with the equally impressive number of such sentences, both strongly militate in favour of a finding that the totality of his offending must now be found to be very serious. I so find.
Paragraph 8.1.1(1)(d)
Two questions are posed by this paragraph. The first is whether the Applicant’s offending has been frequent? The Applicant has convictions for 59 separate offences that were dealt with at 13 sentencing episodes across a period of offending of just over two years. This equates to convictions for offending at the rate of 30 per year for each year of the offending history. He has caused sentencing courts to deal with him at the rate of six – seven times a year during the offending period. In other words, he has been before the courts for sentencing once every two months during the period of the offending history. This is plainly frequent offending.
The second question deriving from this paragraph is whether the Applicant’s pattern of offending demonstrates any trend of increasing seriousness? Speaking frankly, the Applicant’s offending history is too short for it to demonstrate any trend of increasing seriousness. A trend usually evolves across time. Here, the Applicant offended for a period of about two years. It commences with conduct involving acts of domestic violence and maintains that level of seriousness right up until its conclusion. In the interim, he commits property offences, drug offences, further acts of domestic violence, fails to comply with the terms of orders lawfully imposed on him and commits offences involving the unlawful use of motor vehicles. Therefore, while the history may not contain, per se, a trend of increasing seriousness, I am satisfied that it has been ‘very serious’ from its outset.
I have no difficulty in concluding that my findings about (1) the frequency of the offending and (2) the nature of its seriousness from its commencement cumulatively lead me to a finding that the totality of the Applicant’s conduct has indeed been ‘very serious’. I so find.
Paragraph 8.1.1(1)(e)
This paragraph looks for any cumulative effects to be gleaned from the Applicant’s offending. To my mind, four cumulative effects are apparent from his offending. First, it seems clear the Applicant has experienced no deterrent effect from the sentences imposed on him. He has 59 convictions. He did not receive a custodial term until his 12^th conviction and even that custodial term was wholly suspended. He took nothing from the benefit of a sentence not compelling to spend actual time in custody and continued to offend at an astonishing rate. Likewise, other forms of non-custodial sentences in the forms of fines and orders for probation failed to deter him. Again speaking frankly, it seems the only time the Applicant has stopped offending is when he has been placed in actual custody.
Second, the Applicant is someone who has failed to develop any respect for the lawful authority governing the Australian community. The imposition of a lawfully made instrument relating to them is something that would normally cause a person to (1) be mindful of its terms; and (2) refrain from conduct breaching those terms. Here, the Applicant has breached (1) orders for domestic violence; (2) orders placing him on parole; (3) orders requiring him to appear on a return date in a court; and (4) an order that granted him bail. The multiplicity of these breaches leaves no doubt about the Applicant’s failure to respect Australian lawful authority now representing a cumulative effect of his repeated offending.[23]
[23] See [16] – [18] of these Reasons.
Third, the Applicant concedes that difficulties with addiction to illicit opioid substances (principally heroin) is at the front and centre of his conduct now depicted in his criminal history. I will have more to say about the extent of opioid substance abuse later in these Reasons when analysing the level of his recidivist risk. But for present purposes, an obvious cumulative effect of this Applicant’s repeated offending must surely involve a finding that he has had, and will most likely continue to have, significant difficulties with illicit drug use. His past significant problems with illicit drug use are the only way to explain the astonishing number of convictions he compiled during an offending history of barely two years. Heroin so significantly skewed his moral compass and the effect of that can be readily seen in the nature and extent of the criminal history.
Fourth, I again refer to my abovementioned summary of the Applicant’s offending.[24] The policing and regulation of offending comprising the commission of something in the order of 30 offences a year, together with appearances before sentencing courts at the rate of once every two months is surely conduct that has consumed more than its fair share of the community’s law enforcement, judicial sentencing and custodial resources. This inordinate consumption of those resources does, with question, amount to a cumulative effect of this Applicant’s repeated offending.
[24] See [16] – [18] of these Reasons.
The abovementioned four cumulative effects of the Applicant’s offending thereby cause this paragraph 8.1.1(1)(e) to volubly speak to the very serious nature of the Applicant’s unlawful conduct in this country.
Paragraph 8.1.1(1)(f)
Earlier in these Reasons[25] I particularised the Applicant’s movements in and out of Australia since initially arriving here in 2013. Upon returning to Australia in February 2018 following a departure for Indonesia in December 2017, it is safe to presume that the Applicant would have been compelled to fill out an incoming passenger card (or equivalent). Those cards usually require a returnee to make a declaration about whether they have any pre-existing convictions in this country and sometimes even elsewhere. He did not begin offending in Australia until end of 2020 / beginning of 2021 and therefore he would have had no Australian convictions to declare in any such incoming passenger card.
[25] See [1] of these Reasons.
Despite his conviction in Indonesia on 1 December 2010, for ‘Misusing Narcotics Group 1 for himself ’, any non-recording of that conviction was not propounded against the Applicant at (1) the time he applied for a Visa to come here;[26] (2) the time of his initial arrival (February 2013); or (3) at the time of his return to this country in February 2018 following his sole departure in December 2017. The provision of false or misleading information to the Respondent’s Department is not otherwise propounded by the Respondent against the Applicant.
[26] See R3, TB6: in ‘Part H’ of this Form 80 document where the Applicant acknowledges having being convicted of a crime or offence outside Australia.
In these circumstances it cannot safely be found that the Applicant has provided false or misleading information to the Respondent’s Department and this paragraph 8.1.1(1)(f) must be put to one side and rendered neutral for present purposes.
Paragraph 8.1.1(1)(g)
The evidence is silent about whether the Applicant has received any formal written warning about the consequences of further offending in terms of his migration status to remain here. This paragraph should be put to one side and rendered neutral for present purposes.
Paragraph 8.1.1(1)(h)
As mentioned earlier, the Applicant was convicted of ‘Misusing Narcotics Group 1 for himself ’in Indonesia on 1 December 2010.[27] In his abovementioned ‘Form 80’, the Applicant particularised this conviction in these terms:
‘_I WAS SENTENCED TO 8 MONTHS INCARCERATION FOR THE POSSESION [sic] OF 0.8 GRAMS OF MARIJUANA (IN THE FORM OF 1 TOBACCO MIX JOINT). SERVED SENTENCE FROM -JUL 30, 2010 - MAR 29, 2011 INSIDE KEROBOKAN PRISON, BALI…..’[28]
[27] See R3, TB6, pp 423-424.
[28] R3, TB6, p 419.
While the Applicant’s abovementioned conviction in Indonesia does not comprise offending of any severity, it is nonetheless offending in the realm of illicit drug use. It is thus an ominous precursor to his difficulties with illicit opioid substance abuse (principally heroin) which subsequently caused him to so very seriously offend in this country. This paragraph 8.1.1(1)(h) thus militates in favour of a finding that the Applicant’s offending in this country has been very serious.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have applied each of the relevant paragraphs appearing in paragraph 8.1.1(1) of the Direction. The relevant paragraphs applicable to the instant facts safely lead me to the conclusion (and finding) that the totality of this Applicant’s unlawful conduct in this country can be readily characterised as ‘very serious’.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The Applicant has, as we have seen, a quite varied offending history. The present question requires an assessment of the nature of the harm that individuals or the Australian community would experience were the Applicant to recommit that offending in whole or in part. The following findings can be made:
·property-type offending: for present purposes I will group the Applicant’s offences against the property of others under this one heading. This would include offences variously described in the history as ‘unauthorised dealing with shop goods’, ‘stealing’, ‘enter premises and commit indictable offence by break’, ‘unlawful use of motor vehicles, aircraft or vessels’, ‘possess tainted property’ and ‘stealing after previous conviction’. On any rational analysis, this conduct has resulted in lawful owners of property being deprived of the right to enjoy and / or utilise that property for any lawful purpose. Were the Applicant to recommit these types of offences, other lawful owners of property would thereby suffer measurable material loss;
·domestic violence-type conduct: I deliberately adopt the word ‘conduct’ as opposed to ‘offending’. This is because in at least two places in the Direction[29] it facilitates the taking into account of such conduct regardless of whether there is a conviction or sentence for such conduct. The Applicant’s history has very high number of convictions for contravening previously-made domestic violence orders. Violence against women is deplorable and the extent of that problem is fulsomely described in a Governmental report appearing in the material.[30] The Applicant cannot be heard to say that much of his domestically violent conduct was not all that serious or that it primarily involved verbal altercations between him and his victim or that the circumstances of his conduct should now be ameliorated because both he and his victim were under the influence of illicit drugs at the time of the relevant incidents. It suffices to say that the simple reality of the Applicant re-committing such domestically violent conduct is that the victim would suffer psychological, physical and, quite conceivably, catastrophic harm;
·breach of orders: were the Applicant to again refuse to comply with lawfully-made orders in which he is named such as (1) bail; (2) probation; and (3) domestic violence orders then the policing, law enforcement and custodial resources of the community would again unnecessarily be consumed. What must be understood is that such breaches activate the engagement of the community’s resources. A breaching party must be apprehended by the police; the breach must be punished or otherwise regulated by a judicial sentencing officer. Breach of a domestic violence order often results from conduct by the breaching party compelling yet further involvement by the police to deal with it for the safety of the victim;
·traffic-related offending: any recommission of the Applicant’s traffic history would expose members of the road-using public to serious and even catastrophic harm. His traffic history is not all that extensive but it nevertheless contains respective convictions for drink-driving and unlicensed driving. I have previously written of the significant risk to other road users that can result from the irresponsible and/or unlawful driving, management and control of a motor vehicle;[31]
·illicit drug-related offending: it is safe to find that the Applicant’s convictions for possession of dangerous drugs and repeated failures to properly dispose of paraphernalia related to consumption of such substances-if repeated-would result in harm to other members of the community. Such conduct would involve a likelihood of the continued presence of such substances in the community as well as the risk of transmission of disease resulting from the failure to properly dispose of needles and syringes relating to consumption of such drugs.
[29] Paragraphs 8.1.1(1)(a)(iii) and 8.2(2)(b).
[30] R3, TB7.
[31] Bartlett v The Minister for Immigration and Boarder Protection (Migration) [2017] AATA 1561 at [43].
Having regard to the totality of the Applicant’s unlawful conduct, the nature of harm that it would cumulatively represent to either individual victims or the Australian community would range from psychological harm, physical harm, measurably material harm up to, quite conceivably, catastrophic harm in the event of its recommission. I so find.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
I will approach the assessment of the Applicant’s recidivist risk by having regard to (1) the Applicant’s evidence with particular regard to (a) his proposed engagement with rehabilitation if returned to the community and (b) his claimed prospects of employment; (2) the risk reoffending assessment conducted by the Queensland Corrective Services (‘QCS’); (3) the extent of any independent and expert clinical evidence before the Tribunal; and (4) the extent to which the Applicant has experienced any form of deterrent effect from the sentencing regime previously imposed on him.
The Applicant’s evidence
The Applicant’s written evidence essentially consists of three documents. First, there is his Personal Circumstances Form (‘PCF’) which is dated 12 May 2023 and which was part of the Applicant’s representations to the Respondent’s Department when seeking revocation of the mandatory cancellation decision. This PCF is silent about the extent to which the Applicant’s difficulties with illicit drugs has been causative of his past propensity to very seriously offend. However, and second, this PCF attaches an undated written statement[32] from the Applicant in which he frankly describes the impact of his addiction to heroin on his ability to (1) maintain his domestic relationship with his then-wife and (2) hold down remunerative employment for any significant length of time. Third, there is a Supplementary Statement from the Applicant which essentially comprises his reply to the Respondent’s Statement of Facts, Issues and Contentions (‘SFIC’).[33]
[32] R1, pp 73-75; repeated at A1.
[33] R4.
On any rational analysis, the Applicant’s offending is the unfortunate by-product of his addiction to heroin. His story is one of reaching repeated crescendos of heroin abuse, then realising the impact it was having on his life, then realising the necessity for engaging in some form of rehabilitation as a means of dealing with his addiction, only to then repeatedly relapse into the abuse of heroin and the inevitable consequential pattern of committing offences to satiate his need for opioid substances, principally heroin. His relapses have not only caused him to offend. Those relapses have caused him to re-associate with people similarly addicted and to otherwise be expelled or excluded from the lives of those around him who are not so addicted and who otherwise lead lives free of substance abuse.
This is not to suggest the Applicant is averse to engaging in some kind of rehabilitative course or therapy. The material contains evidence of the Applicant’s completion of certain courses described as ‘Understanding Addictions’ and ‘Drug and Alcohol Abuse 101’.[34] On his own volition, the Applicant departed Australia and returned briefly to Indonesia from December 2017 until February 2018. On his own evidence, he undertook this trip for the deliberate purpose of spending time with his brother and / or sister in Indonesia as a means of getting them to assist him to overcome his addiction to heroin. Again, on his own evidence, the Applicant told the Hearing that while there was some initial positive sign that he had got himself ‘clean’ in Indonesia, he soon found himself relapsing into a pattern of abusing heroin after returning to Australia.
[34] R1, pp 76-77.
In terms rehabilitative intervention, the only process that seems to carry any prospect of the Applicant dealing with or overcoming his addiction to heroin can be found in the administration of opioid replacement substances-principally suboxone. This opioid replacement therapy has, at least during the period off the Applicant’s removal from the community, moderately succeeded in keeping him of heroin. The critical question about recidivist risk relates to the extent of any reliance this Tribunal can now place on the Applicant’s evidence of seeking out such therapy upon a return to the community. I am of the view that his evidence in this regard is both uncertain, unreliable and ultimately unsafe to rely on. At the Hearing, he spoke of possibly knowing where to go to seek and obtain such treatment but gave the Tribunal no indication or confidence that any clinician would assume clinical oversight of his predisposition to relapse back into a pattern of heroin abuse.

He spoke of a general practitioner in Brisbane called ‘Dr Reece’ and a clinician called ‘James’ whose name appears in the documents produced under summons from the IHMS[35]. But there is no report or other evidence from ‘Dr Reece’ or ‘James’ (apart from references to him in the IHMS) and it would appear that the prospects of the Applicant engaging with rehabilitative therapy in the community is a matter entirely for him. Put simply, I am of the view that if returned to the community and presented with a notional ‘fork in the road’ presenting him with (1) a path towards freely-available heroin, uncontrolled by prison or detention authorities and (2) a path towards non-compulsory or clinically overseen rehabilitative therapy, this Tribunal cannot be certain that this Applicant will gravitate more towards the latter path as a means of avoiding a relapse back into heroin abuse and consequential serious offending. Therefore the only safe finding is that this Applicant’s current recidivist risk is not is any different to what it was at the time of his most recent removal from the Australian community.
[35] International Health and Medical Services.
Three further points can be made. First, how can this Tribunal now safely accept the Applicant’s evidence that he will remain free of any heroin addiction if returned to the community in circumstances where he felt unable to achieve or engage in such rehabilitation in the Australian community which, in turn, compelled him to return to his family in Indonesia in an effort to overcome his addiction to heroin. Notably, that rehabilitative effort also failed. There is, to my mind, little or nothing in the material suggesting any future rehabilitative efforts in the community will be any more successful.
Second, it is a matter of concern that the Applicant conceded at the Hearing that despite the opioid replacement therapy administered to him in detention, he nevertheless is still currently experiencing cravings for heroin. If this therapy, undertaken in the closed confines of detention, still results in him having such cravings, how can this Tribunal be satisfied that if returned to the community where he will find an unregulated supply of heroin, the Applicant will not satiate those cravings by avoiding any further engagement in opioid replacement therapy and return directly to the consumption of heroin and to consequential unlawful conduct needed to fund that addiction? On his own evidence, the Applicant said his addiction requires him to source, purchase and consume one gram of heroin a day.
Third, the Applicant purported to suggest his recidivist risk can now be ameliorated by his prospects of returning to remunerative employment if returned to the community. He spoke of meeting an individual in prison called ‘Ahmed’ whom he refers to as ‘…a brother from outside who has offered me a job doing loading containers for the company Green Waste in Forest lakes [sic], Brisbane.’[36] There is no statement from ‘Ahmed’ or ‘Green Waste’ pointing to any offer of employment, the nature of such employment, any relevant terms and conditions or any indication of the level of remuneration.
[36] R1, p 75.
The QCS risk of reoffending assessment
The material contains an assessment of the Applicant’s risk of reoffending which is expressed in these terms:
‘You have been assessed as having a Risk of Reoffending Probation and Parole Version (RoR- PPV) score of 9 which indicates you fall into the category of prisoners who pose a moderate risk of further general offending.’[37]
[37] R3, TB64, p 341.
This assessment is arrived at by responses to certain questions each of which receive a score which, in turn, produces a number comprising an offender’s level of recidivist risk on a range of 1 to 20. The QCS formulates this finding in these terms:
‘Risk of Re-Offending Assessment - RoR-PPV - 09 Sep 21
…

Question

Risk Item

Score

Highest education qualification:

Less than grade 12

0

Employment status:

Unemployed

1

Has the offender been convicted of a Breach of Justice Order (current offence or previous offence)?

Yes

3

Number of current offences:

3-4

1

Number of convictions in the past ten years (orders and prison sentences)

0

-1

Age at order commencement date:

35 or older

-2

Sub Total: 2
Add 7 to total Score: 7
Total:9
(Range of Scores 1 to 20: 20 being highest risk of re-offending)’[38]
[38] R3, p 365.

Elsewhere in the QCS report containing this recidivist risk assessment, the QCS makes the following notations about the extent of the Applicant’s involvement in a therapeutic process intended to meet his criminogenic needs:
‘Mr Wardhana’s lack of engagement during this time with Community Corrections has also prevented the opportunity to conduct brief interventions to address the said needs.
….
Mr Wardhana has to date failed to attend eight scheduled appointments (02, 06 & 27 September 2021; 05 & 10 October 2021; 22 December 2021 and 09 & 23 February 2022). His engagement with this service is sporadic, with his participation only existing when it suits Mr Wardhana. Since his failure to report on 09 February 2022, multiple attempts have been made to contact Mr Wardhana via his mobile phone as well as written documentation to his partner’s residence as well as his previous residence; however, he continues to not fully respond. It is apparent that over the last seven months, Mr Wardhana fails to comprehend the seriousness of a court order but also the benefits of such. He has reoffended with offences similar to those for which he received the Probation Order, and he has continued to not fully engage with this service to address his offending behaviour.’[39]
[39] Ibid, p 339.
Independent and expert clinical evidence before the Tribunal
The material contains evidence of the Applicant’s completion of the abovementioned two courses. The ‘Understanding Addictions’ program was a 10-hour course. The ‘Drug and Alcohol Abuse 101’ program was a seven-hour course. The Tribunal accepts the Applicant has completed these courses but is of the view that they are minimally, if at all, informative about the Applicant’s prospects of resisting his cravings for heroin if returned to the community where without question, illicit drugs will be more freely available to him than was the case in either prison or immigration detention.
This is an applicant whose serious addiction to heroin has caused him to very seriously offend in this country. To my mind, it is absolutely critical that any safe and reliable assessment of his recidivist risk must be underpinned by independent clinical evidence from a suitably qualified substance-abuse clinician able to give evidence about (1) the nature and extent of the Applicant’s opioid addiction; (2) the nature, extent and level of success of past therapeutic and rehabilitative modalities; (3) the nature and extent of necessary ongoing therapy in order to keep the Applicant’s predisposition towards opioid substance abuse under some kind of remedial management and control.
There is little or nothing in the evidence of a clinical nature to meet the concerns appearing in (1) the QCS material which refers to the Applicant’s disinclination to fulsomely participate in a defined process of rehabilitative treatment; (2) the Applicant’s long-standing problem with the abuse of illicit drugs which stretches back to at least 2010 which saw him convicted for possession of marijuana; and (3) the Applicant’s currently-stated cravings for heroin in circumstances where responsibility for the management and control of those cravings is ultimately a matter for him.
Has the Applicant experienced any form of deterrent effect?
On at least two occasions, the Applicant has been sentenced by a Court, immediately released on parole, yet quickly reoffended. He was released from 33 days of pre-sentence custody on 16 November 2021, sentenced the following day on 17 November 2021 and committed a further offence on 7 December 2021, less than a month later. By way of further example, he served four months in pre-sentence custody until 14 November 2022 at which time he was immediately released on parole. Yet on 23 December 2022 the Applicant reoffended. It cannot safely be found that he has experienced any measure of deterrent impact from past sentences such as to now favourably speak to his current level of recidivist risk.
Assessment of recidivist risk
I have had regard to the totality of the evidence around the Applicant’s current recidivist risk. I take into account QCS’s assessment that he represents an overall moderate risk of reoffending but temper that finding against the dual realities that this assessment is now well over two years old and that the Applicant reoffended after this moderate risk assessment was made. I am concerned about the absence of clear and defined clinical assistance and intervention to oversee the Applicant’s strictly maintained involvement with a program of rehabilitative treatment, management and control of the psychopathological symptoms that predispose him to opioid substance abuse and to consequential very serious offending. QCS’s notations about the Applicant’s disinclination to engage in rehabilitation together with such rehabilitation exclusively being in the hands of the Applicant are factors that, to my mind, do not bode well in terms of his current recidivist risk.
I have arrived at a finding that the relevant elements of the evidence cumulatively speak to a reality that this Applicant’s current recidivist risk cannot now be safely found to be any different to what it was at the time of his most recent removal from the Australian community.
Sub-paragraph 8.1.2(2)(c)
The Direction also contains a reference to sub-paragraph 8.1.2(2)(c). With reference to this specific sub-paragraph, this matter does not involve a ‘refusal to grant a visa to a
non-citizen’. It involves an application for the ‘revocation’ of a decision refusing to revoke the earlier mandatory cancellation of the Applicant’s Visa. This specific paragraph is not relevant to the determination of this application.
Conclusion of Primary Consideration 1:
With reference to the weight attributable to this Primary Consideration 1:
(a)I have found that the nature and seriousness of the totality of the Applicant’s conduct to date has been very serious;
(b)I have found that recommission of all or part of the Applicant’s offending conduct could result in harms suffered by individual victims and/or the Australian community in the realms of psychological harm, physical harm, measurably material harm and , quite conceivably catastrophic harm; and
(c)I have found that the Applicant’s current level of recidivist risk is now no different to what it was at the time of his most recent removal from the Australian community.
My analysis of the material leads me to a finding that this Primary Consideration 1 confers a very heavy weight towards this Tribunal affirming the Decision Under Review.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
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 non- citizen, the following factors must be considered where relevant:
(a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
(i)     the extent to which the person accepts responsibility for their family violence related conduct;
(ii)    the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii)   efforts to address factors which contributed to their conduct; and
(d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
The material contains a reference to three incidents that record the Applicant behaving in a domestically violent matter. The first of those (in time) occurred on 9 September 2020. The relevant resulting application for a domestic violence order records the following indicia of the incident under the heading ‘4. Grounds of a protection order’. It is described in these terms:
‘4. Grounds for a protection order ---------------------------------------------------- ---------
State grounds as to why a protection order is necessary or desirable to protect the aggrieved. It must be shown that domestic violence has occurred. Include specific example of behaviour by the respondent. Attach extra pages if necessary.
Resp and Agg have been in a relationship for about 7 months and are engaged. They have been in multiple calls for service for police.
On the 09/09/20 Resp has come home at approx 1:00pm and has stated he smelt semen coming from a bin within the residence. He has then accused the Agg of cheating on him. Which she has replied stating she hasn't done anything.
Respondent's version is that he has then walked over to the Agg as she was standing in the living room and he has told her he was going to check her underwear for a condom/semen. He has put his index and middle finger inside the Aggs underwear and slightly inside her vagina. At this point after finding nothing he has removed his fingers and he has apologised as the Agg stated again, 'see I haven't done anything'
In the Agg version she was sitting on the couch as the Resp pulled off her underwear and checked inside her with his fingers. She has told him to stop and then he has removed his fingers from her.
The Agg provided a signed notebook version stating she didn't want to make any criminal complaints.
The Resp was outside the address at 9:05pm and has received a voicemail from the Agg. This included a female and male voice and a banging noise. The Resp has interpreted this as the Agg cheating on him and has come back to the address and again accused her of cheating on him which she has denied. Police listened to the voicemail which is hard to interpret. The Agg does not recall ever calling the Resp and leaving any voicemail. It is possible this was an accidental call and the voicemail is background noise.
Agg is not fearful and does not want any additional conditions. Although due to the physical manner of this incident police believe a PPN is necessary’[40]
[Bold in original]
[40] R3, pp 16-17.
In fairness to the Applicant, it should be noted that he declined to answer any questions about this incident in cross-examination on the basis that doing so could possibly lead to him incriminating himself. I administered this warning to the Applicant to which the Applicant is absolutely entitled. I respectfully commend the Respondent’s representative who was at pains to ensure the Tribunal administered this necessary warning to the Applicant.
The second, of those incidents occurred on 14 December 2020. The police were called consequent upon an incident that arose between the Applicant and the victim. The victim reported an argument between her and the Applicant that resulted in him pushing her in her chest with his two hands. There was a witness to this incident who said the Applicant physically pulled the victim and yelled at her. Further particulars of the incident appear in the Court brief prepared by the Queensland Police Service. That document describes the incident in these terms:
‘The defendant in this matter is Farid Yuliar WARDHANA (DOB: 11/07/1985).
The aggrieved in this matter is [date of birth redacted].
On the 14th October 2020 in the Magistrates Court at Brisbane a Domestic and Family Violence Protection Order was made naming the defendant as the respondent and as the aggrieved. The order contained a mandatory condition that the respondent must be of good behaviour towards the aggrieved and not commit acts of domestic violence.
On the 17th October 2020 the defendant was personally served with a copy of the Protection Order by [police constable’s name redacted]
At approximately 8:30pm on Monday 14th December 2020 Police were detailed to attend to the vicinity of Browning Street, South Brisbane in relation to a disturbance.
Police arrived shortly after and took up with a witness who flagged down Police. The witness pointed at two people and stated that they were arguing.
Police went and took up with the people that the witness had pointed out.
Police spoke with the aggrieved who stated that her and the defendant had been at a hostel consuming alcohol with a group of friends. Once they returned home, the aggrieved asked the defendant whether he was interested in one of the other girl’s who was at the hostel.
From there a verbal argument ensued. The defendant pushed the aggrieved in her chest with two hands and the aggrieved has left the house on foot. The aggrieved was walking along Vulture Street, South Brisbane and the defendant followed her, yelling at her.
The defendant grabbed the aggrieved by the wrists and pulled her towards him. The defendant continued to hold her wrists and began hitting himself in the face with the aggrieved’s hands as she tried to pull away from him. The pair continued walking along Vulture Street before stopping at a public seat after a witness intervened.
Police spoke with the witness who stated that he observed the defendant and the aggrieved having a verbal argument. He stated he saw the defendant pull the aggrieved and yell at her.
Police approached the defendant who was unsteady on his feet and smelt strongly of liquor. He appeared to be under the influence of alcohol.
The defendant stated he did nothing wrong. He stated that he was having drinks with the aggrieved and some friends and she flipped out at him. He stated she accused him of wanting to be with another woman.
The defendant was placed under arrest and transported to the Brisbane City Watchhouse. The defendant was refused bail and remanded in custody to attend Brisbane Magistrates Court on the 15th December 2020 in relation to this matter’[41]
[41] R3, p 30.
The third incident occurred on 26 March 2021. This incident again required intervention by the police as a result of the Applicant yelling at the victim and then proceeding to destroy a bar of soap with a metal tool that was in the victim’s handbag. Further particulars of this incident appear in the relevant court brief prepared by the Queensland Police Service which casts the incident in these terms:
‘Facts of the Charge
The defendant/respondent in this matter is Farid Yuliar Ranu WARDHANA (11/07/1985)
The aggrieved in this matter is [date of birth redacted]
On the 14th of October 2020 at the Brisbane Magistrates Court, a Domestic Violence Protection Order naming Farid Yuliar Ranu WARDHANA as the respondent and as the aggrieved on the order. The respondent was not present in court at the time this order was made. The respondent was served a copy of the order on the 17th of October 2020.
The order is current until the 14th of October 2025.
There are mandatory conditions on the order including the respondent must be of good behaviour towards the aggrieved and must not commit domestic violence against the aggrieved.
The relationship between respondent and the aggrieved is an intimate relationship.
On the 26th of March 2021 around 3:30pm Police were called to attend a disturbance on Stephens Road, Woolloongabba involving a male and female. Police located a male near a white car and a female nearby at the corner of Stephens Road and Annerley Road. Police took up with the male on the footpath on Stephens Road and spoke with the female around the corner.
Police identified the female as the aggrieved named in the current domestic violence order.
The aggrieved told police that the respondent had picked her up from Logan Hospital to take her home. The aggrieved told police that the defendant wanted to discuss a matter that had occurred between them last night which the aggrieved did not want to do. The aggrieved told police that this upset the defendant who then stated to her “You don’t respect me” and “You never listen to me”. The aggrieved told the respondent to stop yelling and that the yelling was abuse.
The aggrieved the told the defendant to pull over the car as she was getting upset and wanted to walk the rest of the way home. As the aggrieved got out of the car the defendant took the aggrieved’s handbag off her shoulder and refused to give it back. The defendant then threw the car key out the passenger window.
The defendant then took a bar of soap out of the aggrieved’s handbag and began destroying it with a small metal tool. The defendant told the aggrieved he was doing this as he believed there to be a recording device inside the soap. The aggrieved attended Dutton Park Police Station and provided a statement.
Police took up with the male who presented his Queensland driver’s licence which identified him as the defendant, Farid Yulia Ranu WARDHANA.
Police gave the defendant his rights and cautions as per the PPRA and asked him about what had occurred. The defendant stated there was an argument in the car in relation to the aggrieved sleeping with other men and an ongoing argument from the night before.
The defendant further stated that he was angry and had been yelling and screaming at the aggrieved. The defendant denied any violence or threats of violence towards the aggrieved. The defendant denied destroying the bar of soap.
The defendant made admissions to taking the aggrieved’s handbag and refusing to give it back to her after her asking for it to be returned. The defendant made admissions to throwing the car key at the aggrieved. The defendant gave no lawful or emergent reason for contravening the domestic violence order.
The defendant was placed under arrest and transported to Dutton Park Police Station where has charged with contravention of a domestic violence order.
The aggrieved has requested police apply for a variation to the current Domestic Violence Order due to the ongoing conflict and escalating aggression. The variation is to include no contact conditions.
The defendant was then transported to Brisbane City Watch House to appear before the Brisbane Magistrates Court on the 27th of March 2021’[42]
[42] R3, pp 38-39.

Paragraph 8.2 of the Direction compels two initial inquiries: (1) it is necessary to ascertain who was a member of the Applicant’s family? and (2) whether any of the Applicant’s conduct against any such family member amounts to family violence for present purposes? I will address each question in turn.
Who are members of the Applicant’s family?
Paragraph 4(1) of the Direction provides that ‘….a person who has, or has had, an intimate personal relationship with the relevant person’ is a ‘member of the person’s family’ for the purposes of the definition of family violence. The victim of the Applicant’s domestically violent conduct is Ms MB who is not the same person as the Applicant’s ex-wife and biological mother of his child. The Applicant told the Hearing that the relationship between him and Ms MB had now ended. Be that as it may, Ms MB can be safely found to be a person who has had an intimate personal relationship with the Applicant. Ms MB can thus be safely found to have been a member of the Applicant’s family for present purposes.
Did any of the Applicant’s conduct constitute family violence?
‘Family violence’ is defined in the Direction. It is defined as ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful’.[43] This definition poses two separate questions:
·was the Applicant's conduct violent, threatening, or other behaviour that coerced or controlled a member of his family?
·was the Applicant's conduct violent, threatening, or other behaviour that caused a family member to be fearful?
[43] Paragraph 4(1) of the Direction.
It is not necessary to look any further than the descriptions of the Applicant’s conduct as quoted above from the police narrative. Each of those three reports of separate instances of the Applicant’s conduct clearly demonstrate that, in each case, his conduct was indeed violent, threatening and/or behaviours that coerced or controlled a member of his family. I am likewise satisfied that the Applicant’s conduct was violent, threatening and that it was behaviour that caused the ex-partner/ victim (and family member) to be fearful. I note and appreciate that the grounds for the domestic violence order consequent upon the Applicant’s conduct on 9 September 2020 (the first of the three above-described incidents) records that the ‘AGG is not fearful and does not want any additional conditions’. This should be tempered with a reality that the Applicant’s conduct was, without question, violent and that it caused the police to note in this application that ‘Although due to the physical manner of this incident police believe a PPN [Police Protection Notice] is necessary.’
Is the Applicant’s conduct captured by paragraph 8.2 of the Direction?
With reference to the three abovementioned incidents, I am of the view (and I find) that even though the Applicant does not have an actual conviction(s)[44] for his domestically violent conduct described in the three abovementioned incidents, I am nevertheless satisfied that his conduct in these incidents is captured by the provisions of paragraph 8.2(2)(b) of the Direction.
[44] That is, a conviction for an offence against the person such as, for example, assault.
With reference to the circumstances of the conduct described in the three abovementioned incidents by the Queensland Police Service in the application for the domestic violence order (relating to the first incident) and in the two respective Court Briefs (for the second and third incidents), I am satisfied (and I find) pursuant to paragraph 8.2(2)(b) of the Direction, that these documents each comprise information or evidence from an independent and authoritative source indicating the Applicant has been involved in the perpetration of family violence.
The authors of these three documents are no doubt suitably experienced police officers who, on any reasonable view, are also experienced in the preparation of such documents and are also at arm’s length from the allegations they record and conduct they describe. Therefore, for the purposes of paragraph 8.2(2)(b) of the Direction, the Applicant’s conduct towards his ex-partner/victim in each of these three abovementioned incidents does constitute family violence against her for the purposes of this Direction. I so find.
Assessment of the seriousness of the Applicant’s family violence
I will now consider each of the factors in paragraph 8.2(3)(a)–(d) in turn for the purposes of assessing the nature and seriousness of the Applicant’s family violence conduct.
Paragraph 8.2(3)(a): Paragraph 8.2(3)(a) requires an analysis of the frequency of the Applicant’s family violence conduct and/or whether there is any trend of increasing seriousness. In each of the three above-described incidents, the Applicant’s conduct can be safely found to have been consistently quite serious. What is significant to my mind is that in addition to these incidents, the Applicant also carries convictions for contravention of domestic violence orders made against him on eight separate occasions. It is notable that six of those eight breaches were convicted as aggravated offences.
Paragraph 8.2(3)(b): requires consideration of the cumulative effect of repeated acts of family violence. The Applicant has repeated his domestically violent conduct both in terms of (1) the number of separate incidents where he was involved in commission of domestically violent conduct and (2) in the quite high number of convictions he now carries for breach of previously made domestic violence orders. As against that, it seems reasonable to conclude that the relationship between the Applicant and his ex-partner victim was one dominated by their respective difficulties with illicit drug use. As I mentioned earlier, this does not assist the Applicant in explaining away his domestically violent conduct towards her (Ms MB). But the reality remains that a fair proportion of his contravention behaviour derived from the mutually dependent nature of their relationship which seemed based on their common involvement in illicit drug use. The safest course is to find that this paragraph does not assist the Tribunal in making any finding about the seriousness of the Applicant’s family violence conduct.
Paragraph 8.2(3)(c)
: requires consideration of any rehabilitation achieved by the Applicant at the time of my decision since his last known act of family violence. This

sub-paragraph requires three enquiries:
(i)first, paragraph 8.2(3)(c)(i) looks for the extent to which the Applicant has accepted responsibility for his family violence related conduct. The Applicant’s evidence at the Hearing contained a strange dichotomy. On the one hand, he appeared to understand the wrongfulness and inappropriateness of his domestically violent conduct. On the other hand, he sought to suggest that much of the information the victim provided to the police was due to her unpredictable and unreliable state of mind as a result of her taking illicit drugs. It can be accepted that their mutual involvement in illicit drug-taking rendered it a volatile and tempestuous relationship. But this does not now allow the Applicant to maintain any argument that she unreliably (deliberately or inadvertently) or outright falsely reported the circumstances of these incidents to the intervening police;
(ii)second, paragraph 8.2(3)(c)(ii) seeks to understand the extent to which a non-citizen comprehends the impact of their behaviour on the abused person. I repeat my abovementioned comment about the Applicant now coming to understand the wrongfulness and inappropriateness of his domestically violent conduct. He repeatedly told the Hearing that the relationship with the victim is now well and truly at an end. If nothing else, he has come to an understanding that it is best to abandon his relationship with her in order to minimise the risk of reoccurrence of such conduct were their relationship to be resumed;
(iii)third
, paragraph 8.2(3)(c)(iii) seeks to identify efforts made by a

non-citizen to address the factors which contributed to their family violence conduct. In his written statement, the Applicant makes reference to his relationship with Ms MB in these terms:
‘In march 2020 i met my girlfriend and straight away she offered me to stay with her at her house in West End.
….
By 2021 me and my partner started to have a toxic relationship due to us both being back on drugs and I ended up in Brisbane watch house for the first time for Domestic Violence charges. After that our relationship is getting worse and more toxic. I ended up back on heroin again and my girlfriend ended up using heroin too and from that we had verbal arguments every day about anything and everything at home. But I do really love her and she loves me too but the drugs controlled us and made our relationship really bad.
….
…I regret everything I have done and I am very remorseful for my actions and I apologise.’[45]
This tone in the written evidence had its echo in the Applicant’s oral evidence at the Hearing where he spoke of wanting to do anger-management type courses as a means of controlling his emotions in a domestic setting in order to avoid a future recurrence of domestically violent conduct. Well intended though this evidence is, I am not aware of anything in the material before the Tribunal indicative of actual efforts made by the Applicant to address any identified factors which contributed to this domestically violent conduct.
[45] R1, pp 74-75.
The three inquiries compelled by this paragraph 8.2(3)(c) lead me to a finding that they are cumulatively militative of a finding that the Applicant’s domestic violence conduct has been of an at least serious nature, more likely very serious.
Paragraph 8.2(3)(d) requires me to look at whether the Applicant has, ‘re-offended since being formally warned, or otherwise since being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence’. The material contains a copy of a ‘domestic violence application: information sheet’[46] which had no doubt been provided to the Applicant consequent upon the incident that occurred on 14 December 2020 which is the second above-described incident. This document contains three pages of commentary under the heading ‘EXPLANATION OF DOMESTIC VIOLENCE ORDER – FOR RESPONDENT’. It suffices to say that these three pages contain explicit detail about the nature and extent of the domestic violence order made against him.
[46] R3, pp 20-26.
In particular, with reference to breaching the order, the explanatory narrative contains the following words:
‘CONTRAVENTION OF ORDER: If you contravene any conditions of this order, you commit an offence against the Act, and you may receive a penalty of up to 3 years imprisonment for the first offence in a 5 year period and 5 years imprisonment for subsequent offences within a 5 year period.
NOTE: If this order is contravened in another State or Territory of Australia, you may be subject to penalties imposed in that State or Territory.’[47]
[47] R3, p 26.
Despite this clear warning, the Applicant proceeded to commit all of his eight contravention offences after he had received this warning and, to repeat, six of those eight contraventions were charged and convicted as aggravated offences. Accordingly, this paragraph 8.3(2)(d) must apply to the circumstances of this Applicant’s domestically violent conduct such as to render it at least serious, more likely very serious.
Conclusion: Primary Consideration 2
I have found that paragraphs 8.2(3)(a), (c) and (d) do assist the Tribunal in assessing the seriousness of this Applicant’s family-related violence conduct. I am of the view that these paragraphs cumulatively militate in favour of a finding that the Applicant’s domestically violent conduct has been at least of a serious nature, more likely very serious.
I am accordingly of the view (and I find) that this Primary Consideration 2 confers a heavy level of weight in favour of this Tribunal affirming the Decision Under Review.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
Paragraph 8.3(1) of the Direction states:
(1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
The subsequent sub-paragraphs 8.3(2) and 8.3(3) of the Direction provide guidance to a decision-maker in how to determine the weight allocable to a person’s ties to his child/ren and social links wherein the child/ren and the social links of the person are Australian citizens or permanent Australian residents and/or who have a right to remain in Australia indefinitely.
In the assessment of any other ties a person may have in Australia, paragraph 8.3(4) of the Direction requires a decision-maker to 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 non-citizen began offending soon after arriving in Australia.
Paragraph 8.3(1): Consideration of the impact of this decision on the Applicant’s immediate family members
In his oral evidence at the Hearing, the Applicant made it clear that his only family / other family / other ties in Australia comprise three people. They are: (1) his ex-wife and mother of his biological eight-year-old daughter; (2) his eight-year-old biological daughter (Child C); and (3) a social contact / friend called Mr Leonard Saul.[48] Out of an abundance of caution I will include the ‘brother’ the Applicant says he met in prison (the abovementioned ‘Ahmed’) as a social contact / friend.
[48] Transcript p 98; p 99 lines 1-25.
Having regard to the nature of the Applicant’s ties described in the immediately preceding paragraph it is not possible to identify any immediate family members falling within this paragraph 8.3(1) which should be put to one side and rendered neutral for present purposes.
Paragraph 8.3(2): Consideration of the Applicant’s ties to Australia having regard to the Applicant’s child/ren who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely
I interpret this component of Primary Consideration 3 to require me to determine whether more weight should be allocated to the Applicant’s ties to Australia in circumstances where his biological or stepchildren are Australian citizens, Australian permanent residents and/or who have a right to remain in Australia indefinitely. There is one relevant child for the purposes of this sub-paragraph comprising the abovementioned Child C who is now eight years of age and will turn nine in February 2024. I will assume Child C was born in Australia and would thus fall within one of the qualifying categories of this paragraph.
Later in these Reasons, I will review the evidence about the extent to which it is in the best interests of Child C for the Applicant to remain in Australia. For the purposes of this paragraph 8.3(2) I am satisfied that whatever ties the Applicant has with Child C moderately militate in favour of the allocation of a moderate measure weight to the strength, nature and duration of his ties to Australia. I so find.
Paragraph 8.3(3) Strength, nature, and duration of ties with any family or social links generally
As mentioned earlier, the Applicant can be found to have some type of tie or connection with his ex-wife and mother of Child C. I will define his connection to his ex-wife as an ‘other family tie’ to Australia were he to return to the Australian community. It is likely they will need to communicate about face-to-face time the Applicant could have with Child C if he remains in Australia. There is no statement in the material from the Applicant’s ex-wife and the extent of his connection to her (as an ex-wife) largely derives from whatever communications I anticipate he may be required to have with her for the purposes of

Child C. I am satisfied that the Applicant’s ex-wife would, to a quite moderate extent, be adversely impacted by the Applicant’s removal from Australia.
This paragraph also looks at the strength, nature and duration of the extent of any social ties the Applicant may have in Australia. As mentioned, I can only glean the following ties from the evidence . They are:
·Mr Leonard Saul whose statement is dated 4 November 2023 and relevantly appears in the material.[49] He describes the Applicant as ‘my dear friend…I have known…for several years.’[50] Mr Saul is impressed by the Applicant’s ‘resilience in the face of adversity.’[51] He claims to have ‘…personally witnessed [the Applicant] engage in acts of kindness, volunteer work and efforts to support others within our community even if it went unrecognised. ’[52] He considers the Applicant ‘…will do what it takes to improve himself and be a great part of society once he has mastered himself and his proneness to self sabotage.’[53] Mr Saul did not give oral evidence at the Hearing. It is safe to find that Mr Saul would be impacted by the Applicant’s removal from Australia;
·‘Ahmed’ who is the claimed close friend and ‘brother’ of the Applicant whom he met in prison and who is said to provide employment to the Applicant if returned to the community, has not provided any written statement for the instant Hearing and did not give oral evidence. It is difficult to gauge to any extent to which Ahmed would be adversely impacted by the Applicant’s removal because we have no way of knowing the extent of their social / friendship connection if the Applicant returns to the community. At best, they may be work colleagues but this does not mean they would necessarily be close social friends. I do not consider that Ahmed safely falls within the auspices a social tie the Applicant may now claim to have to the Australian community.
[49] A4.
[50] Ibid, p 1.
[51] Ibid.
[52] A4, p 1.
[53] Ibid.
I will therefore find that the Applicant’s respective ties with his ex-wife and Mr Saul result in the allocation of a moderate level of weight to this Primary Consideration 3. The limiting proviso on this finding is that both the ex-wife and Mr Saul must be Australian citizens, Australian permanent residents and/or people who have a right to remain here indefinitely.
Paragraph 8.3(4): Consideration of the nature of the Applicant’s ties to the Australian community having regard to the length of time he has resided here
This component of Primary Consideration 3 requires me to look at the length of time the Applicant has resided in the Australian community and to take account of the following three elements:
(i)whether the Applicant has been ordinarily resident here during his formative years.[54] The Applicant came here in February 2013 when as a 27-year-old. He has departed Australia once for several months. He has spent about 30 percent of his life in this country. I am therefore satisfied that this Applicant has not been ordinarily resident in Australia during his formative years. This component of paragraph 8.3(4) of the Direction does not assist the Tribunal in determining the allocation of any weight towards a finding about the strength of his ties to Australia as a result of the length of his time in this country which did not see him spend his formative years here;
(ii)whether the Applicant has positively contributed to the Australian community during his time here.[55] The Applicant has a history of remunerative employment in Australia since his arrival in 2013. In his written statement he refers to remuneratively working in these areas: (1) as a musician; (2) in warehousing; (3) as a truck driver; (4) as a forklift driver; (5) as a fruit picker; and (6) and as a scaffolder. It suffices to say that the Applicant has worked in Australia and will have paid taxation on the income derived from his employment activities in this country. There is a general reference in the oral evidence to what purport to be community contributions the Applicant has made.[56] This evidence is corroborated by Mr Saul’s evidence about the Applicant’s ‘..volunteer work, and efforts to support others within our community.’[57] This component of paragraph 8.3(4) of the Direction affords a moderate level of weight towards a finding about the strength of his ties to Australia as a result of the extent of his (in the main) employment and (to a lesser extent) community contributions to this country;
(iii)can the weight allocable to the strength of the Applicant’s ties to Australia based on the length of time he has spent in the Australian community be lessened because (1) he did not spend his formative years here and (2) he began offending soon after arriving here?[58] With reference to the first question, I have already found that he has not spent his formative years here. With reference to the second question, the Applicant’s movement history tells us that he first arrived here in February 2013 as a 27-year-old and only left Australia once for several months from December 2017 to February 2018. His first conviction in an Australian court occurred in February 2021.[59] A period of eight years post-arrival cannot be described as him beginning to offend in Australia soon after arriving here. The weight allocable to the strength of the Applicant’s ties to Australia can only be moderately impugned pursuant to this specific paragraph 8.3(4)(a)(iii) of the Direction because the Applicant did not spend his formative years here.
[54] Paragraph 8.3(4)(a)(i) of the Direction.
[55] Paragraph 8.3(4)(a)(ii) of the Direction.
[56] Transcript, p 92, lines 29-34.
[57] A4, p 1.
[58] Paragraph 8.3(4)(a)(iii) of the Direction.
[59] R1, p 33.

Accordingly, I am of the view (and I find) that based on my analysis of the evidence around paragraphs 8.3(4)(a)(i), (ii) and (iii) of the Direction, a moderate level of weight is allocable to this paragraph 8.3(4) in favour of the Applicant.
Conclusion: Primary Consideration 3
I have referred to the four relevant components of this Primary Consideration 3. I am of the view, after having analysed the evidence relevant to each of those four components,[60] that the totality of the evidence points to a moderate level of weight in favour of a finding that this Tribunal should restore the Applicant’s Visa status to remain here.
[60] Noting that paragraph 8.3(1) is not relevant to the instant determination.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
This primary consideration requires a decision-maker to consider what impact a decision to refuse or not revoke cancellation of a visa will have on children who are and will continue to be under the age of 18 years of age at the time of the decision.[61] The Direction further requires that the best interests of each child must be considered individually if there are more than one minor child/ren identified.
[61] Paragraphs 8.4(1) and 8.4(2) of the Direction.
In assessing the best interests of each child/ren, a decision-maker is required to take into account:[62]
[62] Paragraph 8.4(4) of the Direction.
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Identification of relevant minor child/ren
It is clear from (1) the Applicant’s PCF;[63] (2) his oral evidence;[64] and (3) his written evidence[65] that there is only one relevant minor child falling within the auspices of this Primary Consideration 4. That child is Child C who is born in Australia in February 2015. Child C resides with her biological mother (the Applicant’s now ex-wife) in Melbourne. It was clear from the Applicant’s evidence given in cross-examination that he has not seen Child C (that is, been physically present with her) for five years and that he has only been communicating with her for about the last year by electronic means.[66] He says he now communicates with Child C ‘every week’.[67] In a recent written document the Applicant says:
‘I have a loving relationship with my eight year old child who is an Australian citizen and my removal from Australia will have a massive impact on her and me as well. There is no substitute for physical contact. It is absolutely the most important thing for me to be a father, raise and teach my daughter my language, culture and traditions. The Minister, respectfully has really ignored the adverse human consequences my removal will have on my child.’[68]
[63] R1, p 63.
[64] Transcript, p 37, line 1.
[65] R4, p 2.
[66] Transcript p 38, lines 10-18.
[67] R1, p 64.
[68] R4, p 2.
Application of factors at 8.4(4) of the Direction to Child C
Paragraph (a): the Applicant has been physically absent from Child C’s life for virtually half a decade and for more than half her life. He has, over about the last year, maintained a weekly level of contact with her. This means it would be unsafe to find that there is absolutely no parental relationship between him and her but the irresistible reality is that he has been absent for long periods of Child C’s life. Put at its highest, this paragraph is only moderately militative in favour of a finding that it is in Child C’s best interests for the Applicant to remain in Australia.
Paragraph (b): the extent of any future positive parental role the Applicant is likely to play in the life of Child C is facilitated by what seems to be a receptive attitude from his ex-wife to him re-involving himself in Child C’s life. Child C will turn nine in February 2024 and there are thus nine years of parenting time left for him to re-establish some type of parental presence and / or role in her life. It is not a stretch of the evidence to suggest that the ex-wife’s apparent compliance with a request for the Applicant to spend time with Child C will evaporate if he returns to illicit drug use and a pattern of criminal conduct. Put at its highest, this paragraph is only moderately militative in favour of a finding that it is in Child C’s best interests for the Applicant to remain in Australia.
Paragraph (c): we do not know the impact of the Applicant’s prior conduct on Child C, nor do we have any information about how any future conduct by the Applicant will adversely affect that child. This paragraph should be put to one side and rendered neutral for present purposes.
Paragraph (d): we do not have any direct evidence on the likely effect Child C would experience resulting from a permanent physical separation from the Applicant. We know from the tone of letters she has sent him which are before the Tribunal that she is anticipating a physical re-union with him.[69] I will therefore presume (and find) that Child C would be impacted by being permanently separated from the Applicant on a physical basis. That said, we have the evidence of the Applicant who refers to communicating with Child C via the WhatsApp electronic platform and there is little to resist a finding that he would be able to communicate with her from Indonesia on that electronic basis. This paragraph does not assist the Applicant but should not be found to work against him either. I think this paragraph should be put to one side and rendered neutral for present purposes.
[69] See Child C’s letters at A5.
Paragraph (e): Child C’s biological mother (and ex-wife of the Applicant) already fulfills a parental role and has done so for the significant majority of her life. The Applicant told the Hearing that his ex-wife has now re-partnered with someone who has a child of their own and that they now comprise a blended family of four.[70] This paragraph does not assist the Applicant but should not be found to work against him either. I think this paragraph should be put to one side and rendered neutral for present purposes.
[70] Transcript p 38, lines 6-8.
Paragraph (f): we do have the views of Child C and they are respectively contained in two hand-written letters, one undated and the other dated 6 November 2023. Both of these letters appear in the material.[71] The material also contains a typed email message from Child C to the Applicant.[72] In the first of these communications (the undated handwritten letter) it is clear that Child C is operating under the presumption and anticipation that she will soon be physically re-united with the Applicant. In this first communication she says ‘I WILL BE WITH YOU!’.[73] In the typed email message she says ‘dad i hope you don’t’ go to indonesia because you mean a lot for me bye. from [Child C]’.[74] This paragraph is strongly militative in favour of a finding that it is in Child C’s best interests for the Applicant to remain in Australia.
[71] A5.
[72] Ibid.
[73] Ibid, p 1.
[74] Ibid, p 3.
Paragraphs (g) and (h): the material contains no evidence referrable to either of these paragraphs both of which should be put to one side and rendered neutral for present purposes.
Findings about Child C
It is clear that the majority of factors at paragraph 8.3(4) either only moderately assist the Applicant or otherwise do not assist him at all. It would be both harsh and absurd to ignore the anticipatory tone of Child C’s written communications to the Applicant. She knows him as a father, she knows there is a risk of his removal to Indonesia, and she does not want that to occur. As against that, there is the Applicant’s dreadful history of addiction to heroin which has caused him to conduct himself in a way to be removed from well over half of Child C’s life.
Conclusion: Primary Consideration 4
I have assessed and allocated weight to the best interests of Child C by reference to each of the relevant paragraphs at 8.3(4) of the Direction. Having regard to the cumulative weight I have allocated to the best interests of Child C pursuant to the relevant

paragraphs of 8.4(4) of the Direction, I am led to a finding that this Primary Consideration 4 must be found to be of moderately strong weight in favour of revocation of the mandatory cancellation of the Applicant’s Visa.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[75] The Direction further explains:
‘This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.5(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.’[76]
[75] Paragraph 8.5(3) of the Direction.
[76] Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
With reference to the propositions in paragraph 8.5(1) of the Direction, this sub-paragraph is expressed thus:
1The 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.
This Applicant has breached the Australian community’s expectations by his record of criminal offending in this country which is evidenced by a significant number of breaches of the Australian criminal law. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.
The Direction also states that visa cancellation or refusal, or non-revocation of a mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences 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 through conduct, in Australia or elsewhere, of the following kind:[77]
(a)acts of family violence; or
(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; or
(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; or
(f)worker exploitation.
[77] Paragraph 8.5(2) of the Direction.
I have earlier found that the Applicant has committed offences that engage the operative effect of the abovementioned sub-paragraph (a) for his eight breaches of a previously made domestic violence order six of which were charged and convicted as aggravated offences. This offending constitutes the commission of acts of family violence.[78] The commission of these offences means the Australian community expects that the Australian Government can and should refuse to set aside the mandatory cancellation of the Applicant’s Visa.
[78] Paragraph 8.5(2)(a) of the Direction.
The remaining 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), (5) and (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 any 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;[79]
(c)Australia will generally afford a higher level of tolerance towards 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;[80]
(d)the community’s level of tolerance will rise based on the length of time a non-citizen has spent in this country and, in particular, whether their formative years were spent here;[81]
(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;[82] and
(f)if a non-citizen’s unlawful conduct is inherently of the type captured by any of the categories stipulated in paragraph 8.5(2)(a)-(f)(inclusive) of the Direction, then even strong countervailing considerations may not assist a non-citizen even where the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[83]
[79] Paragraph 5.2(4) of the Direction.
[80] Paragraph 5.2(5) of the Direction.
[81] Paragraph 5.2(5) of the Direction.
[82] Paragraph 5.2(6) of the Direction.
[83] Paragraph 5.2(6) of the Direction.
In relation to sub-paragraph (a) of the immediately preceding paragraph [119], the term ‘limited stay visa’ is not defined in the Act. The Applicant in this case held a Partner (Subclass 100) visa until it was mandatorily cancelled on 9 May 2023.[84] As the Applicant continued to hold this Visa until it was mandatorily cancelled, it can be safely concluded that this Visa permitted the Applicant to remain in Australia without any end point on his stay. Further, it is can also be concluded that if his Visa was not mandatorily cancelled in May 2023, the Applicant would have continued to hold the Visa and thus remain in Australia indefinitely. As the Visa permitted the Applicant to remain in Australia without any limit on the duration of his stay, the Visa held by the Applicant cannot be classified as a limited stay visa.[85] Therefore this sub-paragraph (a) is not applicable to the Applicant.
[84] R1, pp 79-86.
[85] Walker v Minister of Home Affairs [2020] FCA 909 at [29].
In relation to sub-paragraph (b) of the abovementioned paragraph [119], the Applicant has resided in Australia from February 2013 when he was 27 years old. He is currently aged 38 years. He has a history of remunerative employment in Australia. He has fathered one biological child in Australia. Whatever participation in, and contribution to, the Australian community he may have made during his time here cannot be safely found to have been ‘short’. Therefore, the Australian community’s tolerance is not lowered by this part of the principles in 5.2(4) of the Direction.
In relation to sub-paragraph (c) of the abovementioned paragraph [119], I repeat that the Applicant resided in Australia since February 2013 when he was 27 years old. He is currently 38 years of age. He has spent almost 30 percent of his life in this country since his initial arrival as a 27 year old. This means that the Australian community has a higher than usual tolerance of criminal or other serious conduct by this Applicant.
In relation to sub-paragraph (d) of the abovementioned paragraph [119] I am of the view that the circa 10 year period of time the Applicant has spent here facilitates a slight raising of the community’s level of tolerance for his offending. This finding cannot be augmented due to him not having spent his formative years in this country.
In relation to sub-paragraph (e) of the abovementioned paragraph [119], I am not of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant recommitting his criminal offending of the same type and magnitude already committed and (on the other hand), whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community’s expectations for present purposes. This is because I am of the view that the nature and extent of the Applicant’s offending and the harm resulting from it thus far has been of such a significant and very serious magnitude as to potentially dispel any applicable countervailing considerations.
In relation to sub-paragraph (f) of the abovementioned paragraph [119], I have found that at least part of the Applicant’s offending is captured by sub-paragraphs 8.5(2)(a) of the Direction. Given that finding, even strong countervailing considerations in his favour may not assist the Applicant. Therefore, my finding must be that the nature of his offending effectively precludes any countervailing considerations working in his favour.
Having regard to the above discussion around sub-paragraphs (a)–(f) (inclusive) referenced in paragraph [119] of these Reasons, I am of the view that the Australian community’s expectations are not modified such that the community does not have a higher than usual tolerance of criminal conduct by the Applicant. Because of the very serious nature of the Applicant’s offending, this Primary Consideration 5 compels a finding that the community expects that the Australian Government can and should refuse to set aside the mandatory cancellation of the Applicant’s Visa. I so find.
Conclusion: Primary Consideration 5
Primary Consideration 5 confers a heavy level of weight in favour of this Tribunal affirming the Decision Under Review.
OTHER CONSIDERATIONS
Other Considerations (a): Legal consequences of the decision; (c): Impact on victims and (d): Impact on Australian business interests
With initial reference to Other Consideration (a), I accept that the Applicant does not claim to be owed non-refoulement obligations. He did, of course, voluntarily return to Indonesia for several months from December 2017 to February 2018. To whatever extent it may be contended that a legal consequence of this decision may cause him to become the subject of indefinite detention, it is safe to find that he is not a person covered by a protection finding. Consequently, were this Tribunal to affirm the Decision Under Review the Applicant would be liable to removal from Australia as soon as reasonably practical.

I am of the view that the totality of the evidence before the Tribunal does not otherwise compel ventilation or analysis of any of the three abovementioned Other Considerations (a), (c) and (d) of the Direction. I will put these Other Considerations to one side and allocate neutral weight to each of them.
Other Consideration (b): Extent of impediments if removed
The Applicant’s evidence
It is surely beyond argument that Indonesia is not a country which is unfamiliar to the Applicant. He told the Hearing that he has three brothers and two sisters in Bali and that his stepmother also lives in Bali. He said the siblings became separated because each have different mothers.[86] Further to this, the Applicant confirmed that he had a lot of family in Indonesia.[87] He also confirmed that both of his biological parents have passed away.[88]
[86] Transcript, p 29, lines 36-43.
[87] Ibid, p 28, lines 46-47; p 29; p 30, lines 1-6.
[88] Ibid, p 29, lines 32-34.
He was equivocal about whether or not he was close to his stepmother and when the possibility of going to live with one or more of his siblings-at least on an interim or ‘settling in’ basis-in the event of his removal to Indonesia he said ‘probably not’.[89] He told the Hearing that if returned to Indonesia, he would probably find employment as a musician, probably in the Java area.[90] He said his main connections in Indonesia are in the region of Java as opposed to Bali. He spoke of his voluntary circa eight week return to Indonesia during the period December 2017 to February 2018 in an effort rehabilitate himself from his heroin addiction. He said he initially stayed with his brother (‘Dimas’) and then also spent some time with his sister (‘Diah’).[91] His logic in residing with both of these siblings that he had a better chance of overcoming his heroin addiction because no one in his family were illicit drug users.
[89] Ibid, p 30, lines 38-46; p 31, lines 1-4.
[90] Transcript p 27, lines 26-38.
[91] Ibid, p 29, lines 9-21.
He described his time in Indonesia from December 2017 to February 2018 as successful in terms of remaining clean from illicit drugs ‘for a few weeks’[92] during which time he says he wrote a song. He told the Hearing that while in Indonesia he met up with other family members and friends and that he otherwise has about 10 friends in Java. He otherwise confirmed that he is familiar with the Indonesian language. The Applicant’s written statements comprising (1) his PCF;[93] (2) his undated statement attached to his PCF;[94] and (3) his reply[95] are all silent about any impediments he would face if returned to Indonesia.
[92] Ibid, p 28, lines 1-31.
[93] R1, p 70.
[94] R1, pp 73-75; repeated at A1, pp 1-3.
[95] R4, pp 1-2.
Factors to be taken into account
Paragraph 9.2 of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
Paragraph 9.2(1)(a): the Applicant’s PCF is silent about him suffering from any currently or previously diagnosed medical or psychological conditions. He told the Hearing that he was in good physical health and that his mental health ‘is really good’.[96] Although his PCF was silent about any medication he was taking for any condition, he told the Hearing that he currently takes Mirtazapine ‘…that’s helping me for sleeping, anxious and anxiety…’ .[97] He added that while in immigration detention ‘I do training…I eat well.’[98] It is not an unfair stretch of the evidence to suggest and find that the Applicant is in robust overall health and at the age of just 38 years, in the prime of his life. To the extent he may require access to mental health support and/or Mirtazapine in Indonesia, it is not unfair or incorrect to suggest he would able to source some level of mental health support and would otherwise be able to more or less readily source Mirtazapine. Overall, the Applicant’s age and state of health can, at best, only found to be very marginal impediments to his resettlement in Indonesia.
[96] Transcript, p 37, lines 40-41.
[97] Ibid, line 41-42.
[98] Ibid.
Paragraph 9.2(1)(b): the Applicant lived in Indonesia for the first 27 years of his life. He voluntarily returned there-albeit in the circumstances of trying to rehabilitate himself from an addiction to heroin-from December 2017 to February 2018. He is a musician and can safely be found to be in tune (no pun intended) with Indonesian cultural norms and habits. As mentioned, he told the Hearing he is familiar with spoken Indonesian. Language and cultural barriers cannot be found to be impediments to his return and re-settlement in Indonesia.
Paragraph 9.2(1)(c): this sub-paragraph looks for any social, medical and / or economic support available to the Applicant in Indonesia. Despite his coyness on (1) the extent of the closeness of his relationship with his stepmother; and (2) whether he could-even for a short period to assist him to resettle-go and reside with Dimas or Diah or one of his other siblings, the fact remains that the stepmother is in Indonesia and that he did reside with both Dimas and Diah during his last stay in Indonesia from December 2017 to February 2018. It should also be remembered that the Applicant told the Hearing that he has got a lot of family in Indonesia and about 10 friends who live in the Java area. It is therefore safe to find that the Applicant does have some measure of social support in Indonesia.
In terms of economic support, the Applicant, to his credit, confidently spoke of not remaining idle upon a return to Indonesia and that he was confident he would be able to find work as a musician probably in the Java area where his main connections are based. To the extent he may require the equivalent of Centrelink payments during any period of unemployment in Indonesia he would have available to him same level of such support as is generally available to other citizens of that country. A similar finding can be made about medical support. Putting to one side the extent of any mental health issue, the Applicant is otherwise in robust overall health. I have found that he should be able to obtain a prescription for Mirtazapine in Indonesia and that should he require mental health support, it would be available to him to the same extent as other citizens of that country. These social, medical and economic support factors can only be found to, at best, cause this particular paragraph 9.2(1)(c) to militate in favour of the allocation of a moderate level of weight to this
Other Consideration (b).
Findings about impediments
Given the respective marginal weight I have allocated to the paragraph (a) and the moderate weight I have allocated to paragraph (c) of paragraph 9.2(1) of the Direction, I am of the view that this Other Consideration (b) confers a moderate level of weight in favour of revocation of mandatory cancellation of the Applicant’s Visa.
Findings: Other Considerations
The allocation of weight to the Other Considerations in the present matter can be summarised as follows:
(a)legal consequences of the decision: is of neutral weight;
(b)extent of impediments if removed: is of moderate weight in favour of revocation;
(c)impact on victims: is of neutral weight;
(d)impact on Australian business interests: is of neutral weight.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant’s Visa: either the Applicant must be found to pass the character test; and if not, I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted (and found) previously in these Reasons, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the power afforded by s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s Visa, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: carries a very heavy weight in favour of affirming the Decision Under Review;
·Primary Consideration 2: carries a heavy weight in favour of affirming the Decision Under Review;
·Primary Consideration 3: is of a moderate weight in favour of setting aside the Decision Under Review;
·Primary Consideration 4: is of moderately strong weight in favour of setting aside the Decision Under Review;
·Primary Consideration 5: carries a heavy weight in favour of affirming the Decision Under Review;
I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined weights I have allocated to Primary Considerations 1, 2 and 5 are sufficient to outweigh the combined weights I have allocated to Primary Considerations 3 and 4 and Other Consideration (b).
A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding that there is not another reason to revoke the mandatory cancellation of the Applicant’s Visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), this Tribunal affirms the decision made on 31 October 2023 by a delegate of the Respondent to not revoke the mandatory cancellation of the Applicant’s Partner (Subclass 100) visa.

145. I certify that the preceding 144 (one hundred and forty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

................[SGD]..............
Associate
Dated: 23 January 2024

Dates of hearing: 8 and 9 January 2024

Applicant: Self-represented litigant

Solicitors for the Respondent: Mr Jake Kyranis (Special Counsel)

Sparke Helmore Lawyers
ANNEXURE A

146. EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE RECEIVED

RESPONDENT SUBMISSIONS

R1

Section 501G documents

Various

9 November

2023

R2

Respondent’s Statement of Facts, Issues and Contentions

20 December 2023

20 December 2023

R3

Respondent’s Tender Bundle

Various

20 December 2023

R4

Applicant’s supplementary statement (tendered as a Respondent’s exhibit)

Undated

9 January 2024

APPLICANT SUBMISSIONS

A1

Applicant’s signed statement

Undated

1 November

2023

A2

Bundle of IHMS clinical records

Various

4 December 2023

A3

Course completion certificates

Various

1 November

2023

A4

Letter of support from Mr Leonard Paul

Undated

4 December 2023

A5

Letter from daughter

Undated

4 December 2023

[2024] AATA 52

23 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Question	Risk Item	Score
Highest education qualification:	Less than grade 12	0
Employment status:	Unemployed	1
Has the offender been convicted of a Breach of Justice Order (current offence or previous offence)?	Yes	3
Number of current offences:	3-4	1
Number of convictions in the past ten years (orders and prison sentences)	0	-1
Age at order commencement date:	35 or older	-2

Dates of hearing:	8 and 9 January 2024
Applicant:	Self-represented litigant
Solicitors for the Respondent:	Mr Jake Kyranis (Special Counsel)
Sparke Helmore Lawyers

146. EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
RESPONDENT SUBMISSIONS
R1	Section 501G documents	Various	9 November 2023
R2	Respondent’s Statement of Facts, Issues and Contentions	20 December 2023	20 December 2023
R3	Respondent’s Tender Bundle	Various	20 December 2023
R4	Applicant’s supplementary statement (tendered as a Respondent’s exhibit)	Undated	9 January 2024
APPLICANT SUBMISSIONS
A1	Applicant’s signed statement	Undated	1 November 2023
A2	Bundle of IHMS clinical records	Various	4 December 2023
A3	Course completion certificates	Various	1 November 2023
A4	Letter of support from Mr Leonard Paul	Undated	4 December 2023
A5	Letter from daughter	Undated	4 December 2023