WTWL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2022] AATA 1116

WTWL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1116 (5 May 2022)
Division:GENERAL DIVISION
File Number: 2022/1206
Re:WTWL

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:5 May 2022
Date of written reasons: 10 May 2022
Place:Sydney

The decision under review is affirmed
.............................SGD...........................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
MIGRATION – refusal of bridging visa – character test – discretion to refuse visa – Direction No. 90 – primary considerations – protection of the Australian community – expectations of the Australian community – violence against women – claim of amnesia - false protection visa claim - other considerations – unborn child - links to the Australian community – decision affirmed
LEGISLATION
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
CASES
BHHX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1574
FYBR v Minister for Home Affairs [2019] FCAFC 185
Leau and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3090
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033
SECONDARY MATERIALS
Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
10 May 2022
INTRODUCTION

The applicant in these proceedings is self-represented. The respondent is legally represented by Mr L Dennis.
On 15 February 2022, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of a decision, taken by a delegate of the respondent on 2 February 2022,[1] to refuse his application for a Bridging Visa E (subclass 050),[2] originally made on 8 May 2020.[3] The delegate’s decision of 2 February is the reviewable decision before the Tribunal.
[1] G4/14.
[2] G9/38; G3/12, 15.
[3] G9/43.
Subsection 501(1) of the Migration Act 1958 (Cth) (the Migration Act) provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Subsection 501(6) sets out several grounds on which a person may fail the character test. Paragraph 6(d)(i) applies where, in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would engage in criminal conduct in Australia. The delegate was satisfied, based upon this paragraph, that the applicant failed the character test. No other ground was referred to as a basis for finding that the applicant did not pass the character test.
In deciding whether to exercise the discretion to refuse to grant a visa under subsection 501(1), a decision-maker is required to comply with any binding directions made by the Government under subsection 499(2A) of the Migration Act. The Government has issued such directions in relation to decision-making under subsection 501(1), namely Direction No. 90 (the Direction).[4]
[4] Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA. Direction No. 90 came into effect on 15 April 2021.
Applying the Direction, the delegate found that the risk of harm posed to the Australian community and the expectations of the Australian community outweighed the various considerations in favour of exercising the discretion to grant the visa.[5]
[5] G5/26.
The issues raised in this merit review application are two-fold:
(a)Does the applicant fail the character test?
(b)If so, should the Tribunal exercise the discretion in subsection 501(1) of the Migration Act to refuse to grant his application for a bridging visa?
THE HEARING
The Tribunal heard the application by videoconference on 21 and 28 April 2022.
The applicant was self-represented.
The respondent’s solicitor filed the following documents:
(a)A Statement of Facts, Issues and Contentions, dated 5 April 2022;
(b)Documents relevant to the decision – the G documents (332 pages);
(c)Supplementary G documents (64 pages).
The applicant filed the following documents:
(d)A statutory declaration from the applicant’s friend (LDM), dated 13 April 2022;
(e)A statement from the applicant’s current partner (JAY), dated 13 April 2022.
The applicant gave evidence and was cross-examined by the respondent’s solicitor.
BACKGROUND
The applicant is a 27 year old citizen of Fiji. Like many of his countrymen, he is fond of rugby. In fact, he is a very talented rugby player. He toured Australia with the Fiji Schoolboys team in 2013, moving over to Sydney in 2014[6] to further his rugby career.[7] In 2019 he was based in Brisbane and playing in the Queensland Premier Rugby Competition.[8]
[6] G18/204-5.
[7] Transcript, 21 April 2022, 31-32.
[8] G5/17, para [28].
He is also enrolled in a Bachelor of Commerce degree, and has completed all but nine units.[9] Between 10 April 2015 and 15 March 2020, he held consecutive student visas.[10]
[9] Transcript, 21 April 2022, 32.
[10] G12/74, 75.
He had a major setback in 2018, when his father died.[11] He was very close to his father.
[11] At the hearing, the applicant was uncertain whether his father died in 2017 or 2018 but thought it was 2018: Transcript, 21 April 2022, 36.
After his father’s death, he came under financial pressure.[12] He did not have enough money to continue studying but wanted very much to remain in Australia. In talking to fellow Fijians, he was told about “a lady” who assisted Fijians with visa applications. He sought out the person in question and paid her three or four hundred dollars to make a claim on his behalf.
[12] G12/86.
On 19 September 2019, he applied for a Protection Visa (PV).[13] His application was fraudulent. He readily conceded to the Tribunal that he did not have any legitimate protection claim to make. It was done, he said, to “buy me time to figure out my next move”.[14] This strategy was to some extent successful because on 29 October 2019 he was granted a Bridging Visa A (WA 010).[15]
[13] Received by the Department on 14 October 2019: G10/44.
[14] Transcript, 21 April 2022, p 22-25.
[15] G12/75.
Unfortunately, he did not spend his ill-gotten time wisely. On 12 October 2019, he became inebriated to the point of losing consciousness, and assaulted his former girlfriend (EO) and her friend (MT) while they were all preparing to go out on the town. On 17 December 2019, he was convicted on two counts of assault occasioning actual bodily harm, and one count of common assault. He was sentenced to a two year Community Corrections order, a total of 400 hours community service, and a $300 fine.[16] He was required to pay restitution of $1,496.00 for repairs to premises damaged during the incident.[17] These are the only offences recorded against him in his criminal record, which is before the Tribunal.[18]
[16] G6, 27.
[17] ST14/44.
[18] G29/319.
On 27 March 2020, his protection visa application was refused.[19] The refusal had nothing to do with his offending and was based on other grounds, which included a lengthy analysis of the politics of Fiji.
[19] G12/81.
This was, from a public administration point of view, a waste of time and effort. The personal details attached to his application referenced a completely different person.[20] Considered on its merits, it was an extremely ham-fisted attempt. I also note that giving false information in support of a visa application is a serious criminal offence.[21]
[20] G11/72.
[21] Migration Act, s 234.
Fortunately, an application to the Tribunal for review of the protection visa refusal was dismissed for want of jurisdiction, being out of time.[22] Otherwise, more time would have been wasted before this Tribunal.
[22] G13/82.
After suffering the protection visa refusal setback at the end of March 2020, he discovered that he did not have a valid visa.[23] His student visa lapsed on 15 March 2020. The bridging visa granted on 29 October 2019 also lapsed around the same time, presumably on 27 March 2020 when his protection visa application was refused.
[23] G9/40.
It was under these circumstances that on 8 May 2020 he applied for a further bridging visa.[24] As noted above, on 2 February 2022, his application was refused by a delegate of the respondent on character grounds.[25]
[24] Bridging Visa E (subclass 050): G9/38, 42; G3/12, 15.
[25] G4/14.
THE DIMENSION OF RISK UNDER THE CHARACTER TEST
I note that the delegate considered only paragraph 501(6)(d)(i) in deciding that the applicant failed the character test.[26] As noted above, this ground applies if there is a risk that the applicant would engage in criminal conduct in Australia, in the event that he were allowed to remain in Australia. The Tribunal is, accordingly, confined to this ground in considering whether the applicant fails the character test. [27]
[26] G5/15; G8/33.
[27] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033, per Rares J at [66]-[68].
I also consider, in favour of the applicant, that the question is further narrowed to consider only the risk of engaging in criminal conduct of the same general kind as the acts previously committed by the applicant. These involved a subset of offences against the person, namely criminal conduct involving violence against women. At the first stage of considering whether he fails the character test, I consider that this is the relevant focus. The implication of this narrowing is that issues relating to the fabricated protection visa claim are properly relegated to the second stage of the inquiry involving the exercise of discretion.
I note that the Annexure to the Direction, in relation to this ground, states:
6. Risk in regards to future conduct (section 501(6)(d))
(1) A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would engage in any of the conduct specified in section 501(6)(d) of the Act. The types of conduct specified are discussed below.
(2) The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.
(3) It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.
6.1 Risk of engaging in criminal conduct in Australia (section 501(6)(d)(i))
(1) A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person will engage in criminal conduct in Australia.
(2) The reference to criminal conduct must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded.
The respondent notes that the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) specifically removed the word 'significant' from paragraph 501(6)(d) of the Act leaving it as 'a' risk. The Explanatory Memorandum to the Bill introducing that Act stated (at [46]):
The purpose of this amendment is to clarify the threshold of risk that a decision maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.[28]
[28] Respondent’s Statement of Facts, Issues and Contentions, at [21].
I do not read this as meaning that anything more than a ‘minimal or trivial likelihood of risk’ is sufficient to satisfy the risk threshold. A risk may be seen as somewhat greater than minimal or trivial even though it falls short of being ‘significant’. Determining on which side of a blurred line the case falls is a matter of judgment for the decision-maker.
The reference to ‘more than a minimal or remote chance’ in paragraph 6(2) is noteworthy. In BHHX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1574, at [26], I indicated why I do not find the substitution of this phrase for the statutory words contained in paragraph 501(6)(d)(i) helpful, and why, in my respectful view, it is safest to stick to the statutory formula.
APPLICATION OF THE CHARACTER TEST
I turn to consider whether the applicant has satisfied me that he passes the character test.
This requires consideration of his past criminal conduct. There are three matters to address in his police history.
(a)Three offences against the person committed on 12 October 2019;
(b)A scuffle on 10 December 2017 (no charges laid)
(c)Conduct in relation to his present partner on 30 January 2022 (no charges laid).
I consider each in turn.
The offences committed on 12 October 2019;
I note that the applicant made a statement in connection with his application for a bridging visa, which was taken into account by the delegate. In that statement, he described the incident as follows:[29]
I am writing this letter explaining my conviction. On 12th of October 2019. I was with my ex-Girlfriend (EO) and her best friend (MT) over at MT’s residence for a few drinks before going out as we planned, later that night. I met with EO at her residence where MT picked us from. On our way to the apartment, we stopped to get some alcohol. I had a 10 pack of Somersby cider, I drunk 4 cans and had given EO 1 or 2. As we got to the apartment we all were drinking, I was in the living room while the girls were doing their make-up getting ready. MT did her make-up and came out first, we continued to drink and talk. At this stage I had finished my 6th can of Somersby cider and I had liked some bourbon but we didn’t have coke. I then mixed bourbon with my cider to drink. All this happened in a period of an hour and 30mins approximately, straight before I lost conscious. I have never been in this state in all my years of drinking. I am a social drinker and would drink only on the weekends with my mates after a game of rugby. I am a person who handles my alcohol consumption very well and there are people who can justify this.
Later as I got back to my senses, I realised that I was in a cell at the police station. I asked why I was there and if I could make a phone call, I was questioned to whom the phone call was going out to. To the officer’s surprise, I said my ex-girlfriend and her best friend, as we were just together (having no knowledge of how long I have been in custody for) and that I have no memory of anything, as to how I ended up there. Only then, I was told of what had happened, very briefly. I was released the next morning on bail around 6am, only realising that I had been in there for quite some time. On my way home I read my copy of the police records regarding my bail conditions, court attendance notice and statement of the witnesses. Reading all this, a lot went through my mind, I was shocked, I was scared and hurt, I was embarrassed and very ashamed, I felt so bad for my actions. At this point I was even crying knowing that my actions would have consequences. This will only be a disadvantage on me for the following reasons. I am not a citizen nor resident of this country therefore my goals and ambitions can all be shattered because of it.
…
The thoughts of my conviction still haunts me to this very day. As so much I would have wished that night never happened, I cannot undo what had been done. I still struggle to live with this and I can only imagine how hard it is to cope, for EO and MT. I have taken full responsibility for my actions and I am truly sorry for how everything went down especially towards the girls. I have been working hard to turn my life around, to learn from my wrong doing and to become a better person. I only hope that someday they will find it in their hearts to forgive me.
[29] G22/239. See also G14/84.
The Police notes record that the police spoke with MT and EO who “provided a version to police and showed police their injuries and damage to the unit”. The ‘version’ recorded by the Police is as follows[30].
About 11:20pm that night, [the applicant] and EO were arguing about their relationship.
[The applicant] became agitated and EO asked [the applicant] to leave. [The applicant] refused and continued to argue with EO. After a few minutes of [the applicant] yelling, MT stood up and asked [the applicant] to leave.
[The applicant] struck MT with a closed fist to the right side of her face, causing immediate pain to her jaw. [The applicant] struck again with a closed fist striking her in the mouth. MT felt immediate pain, and tasted blood in her mouth.
EO tried to intervene and [the applicant] punched her twice with a closed fist, the first time in the forehead and a second time in the mouth. EO was in shock at being punched but tasted blood in her mouth from the punch.
MT was feeling dizzy after the hits, and pushed past [the applicant], entering the unit.[The applicant] followed behind her, yelling at both MT and EO. In the kitchen, [the applicant] has picked up a kitchen knife. Holding it by his side. MT has seen the knife, and grabbed it from [the applicant].
[The applicant] grabbed hold of MT by her biceps and violently pushed her across the living room, throwing her into the wall near the top of the stairs. MT’s right shoulder and head struck the wall. MT has a number of scratches and redness to her arms from this assault. A large hole was caused in the living room wall where MT which MT was thrown into.
The knife was thrown down the stair case. At no time was it used to threaten or hurt anyone.
[30] ST9/37.
After hearing from the women, the applicant was arrested and taken to the police station where he was interviewed with a Body Camera activated for this conversation. When the police put to him the women’s version of events, according to the police statement he said he did not remember “any of that”.[31]
[31] ST9/38.
Initially, he agreed to a formal interview, but then said that he did not remember anything and was content that this had been recorded by the Body Camera and he did not wish to be interviewed.
At the hearing, the applicant said that he had no memory of the physical altercation. He remembered being at the apartment and drinking but no recollection of any physical violence. He did not remember arguing with anyone. He did not remember assaulting the women. However, he did not dispute the police version, which was based on the account provided by EO and MT, and accepted full responsibility for his actions, even though he could not remember salient details. He said that he did not realise what he was alleged to have done until he read the police report.
The scuffle on 10 December 2017
The police notes record the following incident which occurred on 10 December 2017[32]. For clarity, I have replaced the letters VIC1 with EO, and PN with ‘the applicant’.
About 4:15am 10/12/17, EO, the applicant and VIC2 were walking back from a house party at an unknown location in Revesby. At this time, EO and the applicant started arguing about EO smoking because the applicant does not want her to smoke. The applicant got EO's handbag to get the cigarettes out, at this time, VIC2 took the handbag off the applicant and gave it back to EO. The applicant and VIC2 had a scuffle and bumped into EO, EO twisted her knee and fell to the ground and screamed in pain. As a result, police were called. This happened outside number (number missing) which has CCTV footage of the incident. About 4:25am police attended and spoke with all parties who gave different variations of events. Police viewed the footage from number 11 and came up with the above version. An assault was disclosed to police by VIC2, he stated that the applicant punched him during the scuffle, however he did not wish police to pursue the matter or supply his details. .........
[32] S22, 62.

The applicant was asked whether this was an accurate account and said[33]:
[33] Transcript, 21 April 2022, p 40-42.
Like, not really because we were still at the place. At the party when all this happened.
Okay. So what happened?‑‑‑Well, that is, what, like, you know, I did not approve her, like, you know, smoking cigarettes. And, yes, all I did was, you know - because I - I'm not very sure who had the handbag at the time and I - because I did, like, you know, knock his, like, cigarette in there and I tried to actually remove it. But yes, with this - because then it said, like, we were walking back from somewhere and then we were arguing, like, we weren't even walking back from somewhere (indistinct) you know, we were still in the vicinity, like, at the place of the party. And then, yes, like, this couple, like, it actually happened, like, you know, outside. Yes, it actually happened outside and yes, like, it actually happened in like - we actually bumped in - you know, in, like - I'm pretty sure, like, you know, I didn't actually, you know, throw punches or whatever but we did actually bump into EO. I do remember that, like, you know, she bumped and then she fell and yes, I - from the time I didn't know, like, you know, she actually had twisted he(r) knee. But, yes, like, you know, I was still, like, present there, like, I tried, you know, to even help her.
Do you know who called the police?‑‑‑No. I have no idea. Because I know, like, the ambulance rocked up first. I don't even know, like, who actually called in the ambulance as well. But yes, so - I have no idea who made the calls. Yes, but - yes, the police came in after and was, like, you know, questioning everyone. I was also questioned and yes, I, you know, gave them, like, part of my story that, you know, we were arguing and, yes, I didn't actually know the extent to the injury, you know. The only thing I knew was that, you know, while the police were questioning me, she had been taken in the ambulance to the hospital.
Yes. So what was the extent of her injuries?‑‑‑Well we went home, like, straight after that. It was just a knee injury that she sustained from it. Like, it was - because, like, she had a past injury I think on that knee which she had, like, surgery with, some time ago.
So how long did it take her to recover?‑‑‑I'm not too sure because I actually - where I was, like, living at that time, I actually got her to stay with me for a week I think it was. Yes, because, you know, I was the one who was, like, taking care of her then. But she - when she was living with her family.
Okay. Did she have to any ongoing treatment or anything like that?‑‑‑No.
Was she - did she have to wear a cast or a brace or anything like that?‑‑‑She only had crutches, like, from, you know, from when we came back from the hospital. Like, she had, you know, surgery. I understand it was on that particular knee and, you know, I think, like to this day, the knee still gave her problems, even before the incidents happened. Yes, she was given crutches and, yes, we went home from there and then, yes, she was with me for a week. But I'm not aware that she had any other, you know, future treatments.
Yes. So just - so you said that there was a scuffle but you said you don't think there were punches thrown. It says there that victim two stated that you punched him during the scuffle. Is that not correct or ‑ ‑ ‑ ?‑‑‑No, I don't think so. Well, victim two was actually - I don't know. If - I'm sorry, like, I don't mean to be rude but he was gay so, yes, like, but I don't remember, like, you know, I didn't throw any punches, like, you know. It was just a scuffle. Like, just, you know, a shove and push. Yes.
How long did the scuffle last?‑‑‑It was - well, for me it was, you know, it was nothing. It was just, like, short, you know. It didn't like, you know, drag on for, like, you know - I don't even think it lasted five minutes because, you know, we just actually, you know, tried to shove and push. That's when we accidentally bumped into EO and that actually caused her to actually fall. But, yes, there was, yes, nothing more that I could recall, like, you know, to a long scuffle or whatever it was.
Do you think it was warranted for the police and the ambulance to show up?‑‑‑No, I don't think so. Like, even like, you know, when we were at the hospital, even EO herself, you know, she had no idea, like, you know, why the police and the ambulance was called… Yes, she had no idea who actually called in the police and the ambulance.
The police call on 30 January 2022
The Police Records record that on 30 January 2022 at about 4 pm the applicant’s current partner, JAY, called the police to her apartment[34]. I have again substituted ‘the applicant’ for ‘PN’, and JAY for VIC.
On the night of the 29th January 2022, the applicant and JAY were drinking together and had an argument. The couple went separate ways that night. About 4:00pm on 30th January 2022, the applicant arrived home to JAY. JAY and the applicant then had an argument about the previous night. JAY did not wish for the applicant to come in to the house, so she called police. Police attended the location shortly after and could not raise the occupants. At 10:10pm, police attended the residence again and spoke to both parties. The couple stated their argument was due to the night before, but they had since made up since he attended this afternoon and did not want police assistance. Police asked clarifying questions about the argument, however both parties refused to give further details. Police suggested that the applicant stayed somewhere else for the night, however JAY stated she needed the applicant there for her mental and emotional support. The couple ensured police they did not want any further help from police. There are no Children in the relationship. There is no access to firearms. Nil offences disclosed. Record only. Q2: Have you viewed the parties DV summary and taken this into consideration? yes. Q3: What police action was taken? no action taken. Q4: Reason for police decision? no offence detected. Q5: Record supervisor details that attended the scene.
[34] S23/63-64.
JAY gave evidence to the Tribunal. She said that she called the police simply because she wanted the applicant to go away. She confirmed that the applicant had not been violent towards her. She said that he had never been violent to her. She was not in any danger because the applicant was buzzing from the downstairs lobby and outside the apartment. Her evidence was as follows:
And so you called the police, is that right?‑‑‑Yes.
Why did you do that?‑‑‑The previous night, [the applicant] and I had a fight when we went to a party and when I came home, I was really upset with him and I came and I packed his stuff and I wanted him to leave. So when he came back that day - when he came back home, I had already packed his stuff and I just called the cops because I wanted them to just take him away because he still wanted to speak about our issues but I didn't want to talk about it. So I had packed his stuff and I - that's why I called the cops because I wanted him to just go.
Okay. Have there been any other occasions where you've called the police?‑‑‑No. I have not needed to.
And why did you feel you needed to on that occasion?‑‑‑Because he still wanted to talk and I did not want to talk.
Did you feel threatened in any way?‑‑‑No. I was just very upset and didn't really want to be around him.
But you've obviously - you've reconciled since then?‑‑‑Yes.
When pressed by the Tribunal for further details, she said:
SENIOR MEMBER: You said that there had been no previous incidents of violence involving your partner but would it be fair to say that you were apprehensive - sufficiently apprehensive that there might be such an outbreak and that's why you called the police?‑‑‑No, it was more on my end. I was really angry and I was also aggressive. Like - and I just was - I just did not want anything to do with him at that time.
So why did you feel the need to call the police to convey that? Why couldn't you just tell him to go?‑‑‑Because he was still waiting there to talk to me. He said that he's going to wait for me to calm down and talk - like, and talk to me and I said no, just leave, otherwise I'm going to call the cops to escort you away from here.
So where was he when you ‑ ‑ ‑ ?‑‑‑He was downstairs.
So you were upstairs and he was downstairs?‑‑‑Yes.[35]
[35] Transcript, 21 April 2022, 48.
In assessing whether there is a risk that the applicant would engage in criminal conduct of a similar kind if allowed to remain in Australia, the Tribunal is required to consider those factors which are relevant to an assessment of the degree of risk.
I note that the applicant continues to drink, although he says “moderately”. He gave the following responses to questioning from the Tribunal.
There's a reference to the quantity of cider that you had that night, and I think it's 10 or 12 bottles of cider?‑‑‑Yes.
Would that sound about right?‑‑‑Yes, that sound about right. Yes.
And is that your - was that common for you at the time?‑‑‑Well, it wasn't common, like, you know, like I said, like, I am a social drinker. Like, I've always, you know, drank socially but, like, whenever I drank socially, you know, sometimes, like, you know, with friends, like, from rugby, you know, we'll stay up drinking, like, you know, for days and days but, you know, nothing like, you know, violent behaviour. Like, I've, you know, never come to that. So my actions, like, you know, that day was just, you know, unusual. Like, I - even for me, like, you know ‑ ‑ ‑
Sorry, I just need to understand this. Are you saying that during your rugby playing days you were a social drinker, i.e., a moderate drinker. Then there was this incident in October 2019 which was out of character?‑‑‑Yes, sir.
When you drank a lot. Since then, you've reverted to your previous of being just a moderate drinker. Is that how I'm to understand it? Is that what you would say?‑‑‑Yes, I would say that. But, like, you know, even, you know, I haven't, you know, drank, you know, as much as I used to even. Like, I rarely drink now because, you know, my partner doesn't drink as well. So the only time, like, I'd actually be drinking is, you know, when I'm with my friends. [36]
[36] Transcript, 21 April 2022, 37.
I note that the delegate took into account the fact that the applicant did not declare his convictions in his application for a bridging visa,[37] also referring to the applicant’s false protection visa claim.[38] The delegate found that “his conduct in these instances raises concerns regarding the genuineness of his claims and intentions to remaining in Australia”.[39] I do not consider that these incidents are relevant to the question whether the applicant would engage in criminal conduct of a similar nature to that disclosed by the police record were he allowed to remain in Australia.
[37] G5/18, para [30].
[38] G5/18 para [31].
[39] G5/18 para [31].
On the risk reduction side, I take account of the following. First, the applicant participated in five sessions in an alcohol violence reduction program run by Odyssey House in Sydney. I note the letter from Mr Ngo, Assessment Officer, for OHCS. The applicant completed an initial assessment on 31 October 2019 and attended four sessions, on 4, 11, 18 and 25 November 2019. Mr Ng reported that he engaged well during these sessions, was always polite, and supportive and encouraging to younger participants. He was very receptive to feedback and advice from other SMART recovery participants and open when sharing his issues. He displayed a commitment to applying the controlled drinking strategies learned during the sessions.[40]
[40] G15/91.
Second, I take account of the fact that the applicant has expressed considerable remorse for his behaviour and accepted responsibility for it.
In response to questions relating to his attendance at rehabilitation programs, he said:
Okay?‑‑‑I ‑ but I do take full responsibilities to the actions and the behaviour I had caused. And I am very remorseful towards it. I actually took it upon myself to actually go into that SMART program as well, the Self-Management and Recovery Training. I also did my community service with the Bankstown office, so I actually served 400 hours.
…
And do you feel like you got some benefit out of that program?‑‑‑I have. I have, so much. I've learned so much from it. It was a really good, like, lesson for me.[41]
[41] Transcript, 21 April 2022, 13 - 14.
I accept that he attended this program voluntarily and in addition to the community service undertaken as part of his sentence.
Third, I take account of the Sentencing Assessment Report, which provides:[42]
Risk assessment
[The applicant] has been assessed at a low risk of reoffending according to the Level of Service Inventory- Revised (LSI-R).
Supervision plan
Due to [the applicant’s] T1 low risk of reoffending, if the court makes a supervised order, Community Corrections will suspend [the applicant’s]supervision in accordance with clause 1891 of the Crimes (Administration of Sentences) Regulation 2014.
[42] G27/284, at 286.
I treat his claim of intoxicated amnesia with considerable scepticism. The police notes describe his behaviour, and record that he was ‘moderately’ intoxicated. He was apparently able to communicate consent to be interviewed.
In my view the incidents of 10 December 2017 and 30 January 2022 are cause for concern. The incident on 10 December 2017 is especially troubling. The scuffle which resulted from his controlling behaviour (with regard to EO’s smoking) resulted in a serious injury to EO for which she required surgery. He said essentially that he was not to blame and attributed her injury to a pre-existing condition. He told the Tribunal that he did not think that it was necessary to call the police or the ambulance. In my view this is highly problematic. Although it appears that the actual pushing and shoving was between the applicant and the third party present (who the applicant described as ‘gay’), he did not appear to display much insight at all with regard to his behaviour on this occasion.
Moreover, with regard to the more recent incident involving his current partner, I note her evidence that they had had ‘a fight’ the night before and she did not want to see him. She wanted the police “to just take him away because he still wanted to speak about our issues but I didn't want to talk about it”.[43] It is not the Tribunal’s place to find fault with JAY in calling the police under such circumstances, although it is relevant to consider whether her resolute action in calling the police was an indication of her lack of trust and a generalised feeling or insecurity. On the material before the Tribunal, there is insufficient basis for drawing such an inference.
[43] Transcript, 21 April 2022, 46.
The applicant has not foresworn alcohol, even though his excessive consumption caused him, according to his evidence, to inflict violence on two women in a state of diminished awareness. Many persons facing removal from Australia have experienced the mind-focussing effect of immigration detention or prison, serving as a strong deterrence to further misbehaviour. The applicant has experienced neither prison nor immigration detention. The fact that he continues to drink alcohol, even in so-called moderate quantities, is a matter of concern.
I am satisfied that the applicant has acted violently in the past, and on at least one occasion inflicted actual bodily harm whilst in a state of extreme intoxication. He has failed to persuade me that if he were permitted to remain in Australia, he would not engage in further criminal conduct of a similar kind.
I am therefore satisfied that the applicant fails the character test by reason of paragraph 501(6)(d)(i).
THE DISCRETION TO REFUSE A VISA UNDER SUBSECTION 501(1)
I turn to the question whether, despite failing the character test, there is another reason why the discretion should be exercised in the applicant’s favour.
The discretionary question involves an expanded inquiry focusing on the considerations referred to in the Direction.
EXERCISING THE DISCRETION TO REFUSE A VISA
In exercising the discretion under subsection 501(1), the Tribunal is bound to comply with the Direction, which is designed to assist the Tribunal in weighing the various considerations that must be taken into account. The Direction contains rules and principles relating to the weighting of the various considerations. I note the principle that a non-citizen who has committed a serious crime, particularly against women, should generally expect to forfeit the privilege of staying in Australia.
The Direction identifies certain factors, so-called ‘primary’ and ‘other’ considerations. I note that primary considerations should generally be given greater weight than ‘other’ considerations. However, any one factor may be determinative in the particular circumstances of the case, regardless of its classification.
PRIMARY CONSIDERATIONS
Protection of the Australian community: PC1
The first primary consideration is the protection of the Australian community. I note paragraph 8.1, which provides that decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers upon non-citizens in the expectation that they are, and have been, law-abiding, and will not cause or threaten harm to individuals or the Australian community.
Under paragraph 8.1(2) decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen's conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 8.1.1 of the Direction outlines the various factors to which a decision-maker should have regard in assessing the nature and seriousness of the applicant’s conduct to date.
I note specifically subparagraph (1)(a)(ii) which refers to crimes of a violent nature against women. According to the Direction, such crimes should be regarded as very serious, regardless of the sentence imposed. There is no doubt that the offences committed by the applicant should be regarded as very serious. They should be so regarded even though he was not imprisoned and received a community corrections order involving community work and a fine.
I specifically note (d) which refers to the frequency of the offending and whether there is a trend of increasing seriousness. The three offences were all committed at the same time, and it cannot be said that there is a trend of increasing seriousness. There are no other criminal offences in his record.[44]
[44] G6/28.
I also note that (f) requires the Tribunal to consider whether the applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
This matter has been referred to above. While it is not in the Tribunal’s opinion relevant to the question whether the applicant fails the character test, it is relevant to the discretionary issue whether to refuse to grant the visa. It is a factor which counts very much against the applicant, especially in light of the egregious nature of his false protection visa claim.
I note paragraph 8.1.2(1) which seeks to identify the risk to the Australian community should the non-citizen commit further offences. I note the Government’s view that the community’s tolerance for risk decreases in proportion to the seriousness of the potential harm.
I also note paragraph 8.1.2(2) which provides:
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
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.

I have previously identified the nature of harm to individuals and the Australian community should the applicant engage in further acts of a similar nature. It is unnecessary for the Tribunal to restate in emphatic terms the unacceptability of violence towards women.
In terms of the risk factors identified in (b) and (c) above, I consider that while the risk of further assaultive behaviour committed in a state of inebriation cannot be discounted and constitutes more than a minimal or remote risk, it does not amount to a significant or substantial risk. I note the contents of the Sentencing Assessment Report on this issue.
I note that (c) makes reference to whether there are strong or compassionate reasons for granting a short stay visa. I consider that there are such grounds, arising from the accepted fact that JAY is expecting the applicant’s child.
I am satisfied that PC1 weighs heavily against the applicant, despite the compassionate grounds referred to above.
Family violence: PC2
Family violence 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.
I accept the applicant’s evidence that he and EO were in a relationship, but did not live together at any time.[45] There is nothing to suggest that their relationship went beyond that of boyfriend and girlfriend. His evidence was as follows:
Would you say that you were boyfriend and girlfriend?‑‑‑Yes, we were boyfriends and girlfriends. And like, it was ‑ like, it went on for a period of, like, I think, two years.
Okay. So 2016, '17 for three years. So did the relationship ‑ when did the relationship end would you say?‑‑‑You know, we shouldn't ‑ like, on my end, like, I should have, you know ‑ like, looking back at it, I should have ended it, and you know, never went back to it. You know, but I kept going back, because like, you know, I felt like, you know, things would get better as time went. Because you know, it was quite, you know, a few years that we were actually, you know, seeing each other.
Yes, right?‑‑‑And for me, like, personally, like, you know, I was, you know, actually going, like, with age and would have just been, you know, a waste of time for me, like, to actually move on. Like, I know ‑ I know it does sound stupid. I should have ended things, like, even before, you know, this actually happened. [46]
[45] Transcript, 21 April 2022, 17.
[46] Transcript, 21 April 2022, 18.
They were in all probability sexual partners but their degree of sexual intimacy was not canvassed at the hearing, neither was the extent of their day to day interactions or degree of mutual interdependence. There is nothing in the evidence that supports a finding that, despite the lack of cohabitation, their relationship was akin to that of family members.
I have previously decided, based on a consideration of the relevant materials, that a dating relationship by itself is neither a necessary nor a sufficient ground for invoking the family violence provisions of the Direction: Leau and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3090. The question whether the parties were in a family-like relationship is a question of fact to be determined by the Tribunal on a case by case basis.
I find that neither EO nor MT can be considered at any point to be members of the applicant’s family, and therefore his criminal conduct towards them does not constitute family violence. This aspect of the case is distinguishable from those where the perpetrator was or had been married to their victim or involved in a de facto relationship with their victim.[47]
[47] See for example De Silva and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 605; QHRY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 93; Healey and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [ 2021] AATA 4309.
By contrast, JAY is, for the purpose of the Direction, undoubtedly a member of the applicant’s family. She is his current partner, and at the time of hearing, is expecting his child. There is a police report involving JAY’s call to police in February 2022. This incident has been described above. However, I note her clear denials that the applicant had engaged in violence on that or on any previous occasion.
I am satisfied that the applicant has not engaged in family violence as defined by the Direction and that therefore this primary consideration does not apply. The relevance of the applicant’s violent offending against women has been considered in relation to the first primary consideration.
Best interests of minor children in Australia affected by the decision: PC3
This consideration does not apply. The weight of authority clearly supports the proposition that the reference to a child in PC3 does not include a reference to an unborn child.[48]
[48] JNMK v Minister for Home Affairs [2019] FCA 1758, referring to SZRLY v Minister for Immigration and Citizenship [2012] FCA 1459; Kalm v Administrative Appeals Tribunal [2013] FCA 890; (2013) 215 FCR 221; Mehta v Minister for Immigration and Border Protection [2015] FCA 1096; (2015) 238 FCR 439.
The applicant has not included in his application any other minor children who may be affected by the decision not to grant him a visa.
The expectations of the Australian community: PC4
Paragraph 8.4.1 provides that where a person has engaged in serious conduct the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia. Paragraph 8.4.2(d) of the Direction requires the incidents involving EO and MT to be treated as very serious.
It is well established that PC4 cannot weigh in favour of any applicant; the degree to which it weighs against an applicant in any particular case varies according to the seriousness of their offending.[49]
[49] FYBR v Minister for Home Affairs [2019] FCAFC 185.
I find that the applicant’s offending against EO and MT is very serious, and PC4 weighs heavily against the applicant.
OTHER CONSIDERATIONS
Other considerations identified in the Direction relate to:
(a)International non-refoulement obligations: OC1
(b)Extent of impediments if removed: OC2
(c)Impact on victims: OC3
(d)Links to the Australian community OC4
(i) Strength, nature and duration of ties: OC4.1
(ii) Impact on Australian business interests: OC4.2
International non-refoulement obligations: OC1
This consideration does not apply. The applicant admitted that his PV claim was false and made simply to buy time.
Extent of impediments if removed: OC2
Paragraph 9.2 of the Direction states:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen's age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
The applicant has lived in Australia since he was 19 years old. He is now 27 years old and in the prime of life. He is fit and healthy and a talented rugby player. He said that if returned to Fiji he would reconnect with his rugby club and resume his career in Fiji. His mother and two sisters live in Fiji.[50] He is bilingual and speaks both languages (Fijian and English) as required.
[50] Transcript, 21 April 2022, 22.
Apart from the financial disparities of life in Fiji as opposed to Australia, there are no obvious impediments to his return. His work in construction would be transferrable to Fiji, as would his further educational studies.
There is nothing to suggest that the applicant is in poor health. It has not been suggested that his mental state is fragile.
It may be that his rugby career will take a backward step, and that this may affect his mental health. However, he appeared to be very positive about re-engaging with his former club in Fiji. I note the following exchange, which canvassed whether, if his visa were cancelled, he would face a ‘life ban’ from returning to Australia.
So do you think you would be involved in rugby if you went back to Fiji?‑‑‑Definitely, that's the path that I'm planning to take, you know, if - you know, worse comes to worse, like, I go back to Fiji. I will try, you know, to go back into the system and work my way up from there. And because I also understand with the section 501, it's a lifetime ban as I was told.
I don't know if that's right…. It might be a number of years But I don't think it's forever?‑‑‑Yes, because that is what I was told, you know, just from a Legal Aid representative to what that meant. That I may have, like, a lifetime ban. And I was also going to plead, you know, because of my sporting career, you know, if - you know, I could be exempted for that because, you know, I was actually planning going back straight into the Fiji Rugby Academy. I still have connections there. So my former coach for the under 20s, like, he's still the high performance manager back in Fiji. So, you know, every time I go back I go and see him. So, you know, but I haven't been in contact with him, you know, for a few years. But I know he's still, like, you know, in that position and, you know, if I go back, I would go see him and try, you know, to join the academy program - the Fiji Rugby Academy program and then, you know, tryouts for, you know, the Fiji Super Rugby team. I don't know - yes, the Fijian Drua[51].
[51] Transcript, 21 April 2022, 34.
The Tribunal has no basis for knowing whether the reassurance provided by the respondent’s solicitor to the applicant about possible re-entry is well-founded. However, it is clear that the applicant has no intention of walking away from his rugby career. This positive attitude will be of considerable value to him should his visa be cancelled.
The respondent contends that OC2 should be given ‘minimal weight’. I agree that this consideration is neutral.
Extent on victims: OC3
No evidence has been led as to the impact on any victim.
Strength, nature and duration of ties: OC4.1
Paragraph 9.4.1 of the Direction states:
9.4.1. The strength, nature and duration of ties to Australia
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
As noted above, the applicant has lived in Australia for the past eight years, most of his adult life. He has a strong support group emanating from his professional rugby career.
He provided various personal references from administrators and friends from rugby, included with his Bridging Visa application. I have read each of these references very carefully. The references provide a very positive description of the applicant’s character. Some praised his gentle nature and commitment to family values. However, with the exception of the reference by LDM dated 13 April 2020, none of the personal referees address his criminal record or the serious lapse of 12 October 2019. This is surprising. Each of the references appears to have been written in or around August 2020, well after the 12 October 2019. I therefore attach less weight to these references, and more weight to the reference by LDM.
LDM is the Chairman of a local Football Club. He is a senior executive of a software company. Although he was ready to give evidence, the respondent’s solicitor indicated that he did not require LDM for cross-examination. I have read LDM’s reference, which is heavily in favour of the applicant. I accept it at face value, with the exception of the assertion that the applicant is now a teetotaller. This is not borne out by the applicant’s oral evidence, in which he described himself as a “social drinker”, drinking only on weekends and in moderate quantities.[52]
[52] Transcript, 21 April 2022, 14.
The applicant’s current partner is a citizen of New Zealand. She has a right to remain in Australia indefinitely, and therefore the Tribunal is required to consider the impact of his removal upon her.
She said she is pregnant and her condition has been verified by medical evidence.[53] The paternity of the child was not raised at the hearing but the respondent did not question that the applicant is the father of her unborn child.
[53] Transcript 21 April 2022, 45.
When asked about her attitude to relocating to Fiji she said:
Yes. So JAY, are you aware that if the tribunal were to find - make adverse findings against [the applicant], there's a prospect that he may need to return to Fiji?‑‑‑Yes.
Okay. And have you considered what that might mean for you?‑‑‑Yes. Yes, it will be very complicated for our situation now, so I'm not sure what our plans ahead. We're just waiting to see what the decision is and then go from there.
So have you contemplated the possibility that you might go to Fiji?‑‑‑Not really because [the applicant]and I are both from similar backgrounds. I'm Samoan and to me, moving back - moving to Fiji is like going back to my own country, so, you know, and I do plan on doing that in the future when I'm older and I'm more settled and especially with a child. I don't really plan on raising the kid in in the islands. Like, I'd much prefer to do it here but if worst comes to worst, then we'll have to see other options for both of us or, you know, we'll see from there.[54]
[54] Transcript 21 April 2022, 46-47.
It was apparent that although she had not completely ruled out the possibility of relocating with the applicant, neither had she embraced the idea. I note that she has family, her mother, sister and brother, in Samoa.
I have no doubt that the future of both the applicant and JAY and their unborn child will be profoundly affected if he is required to leave Australia.
There is no guarantee that JAY will decide to follow the applicant from Australia. JAY was not sanguine about the prospect of joining him in Fiji. Originally from Samoa, she will have no support in Fiji apart from the applicant’s family. The Tribunal has no evidence as to her eligibility to settle in Fiji.
JAY said she would deal with the issue when it arose. Depriving her unborn child of access to his natural father will be a very hard choice. Depriving him of his home country will be also a difficult thing to do. These are very weighty matters that will press upon these young expectant parents.
I find that that overall OC3 weighs very heavily in favour of the applicant.
Impact on Australian business interests: OC4.2
This consideration is not relevant to the present proceedings.
CONCLUSION
My conclusion in weighing the primary and other considerations is that two of the primary considerations (PC1, PC4) weigh strongly in favour of refusing to grant the visa. The remaining primary considerations (PC2 and PC3) have no relevance.
One of the ‘other’ considerations (OC4.1) weighs strongly in favour of granting the visa. The remaining other considerations (OC1, OC2, OC3 and OC4.2) are of neutral weight.
On the metrics, the case falls against the applicant. But the discretionary judgment to be made by the Tribunal does not turn on arithmetic considerations. The Tribunal cannot avoid the task of grappling with the demands of the particular case.
It really comes down to this. Should the applicant be given a chance to raise his child in Australia, despite his appalling behaviour on a single occasion towards an ex-girlfriend and her friend almost three years ago, and given his otherwise clean criminal record, as well as his positive contributions to the community, through his rugby? I have no doubt that opinions would vary on this basic question. The Tribunal has not found this core issue an easy one.
The Tribunal is required to give effect to the Direction. The impact upon his unborn child of his removal from Australia is not a primary consideration, unlike the protection of the Australian community especially women and children, from violence.
I also note that his decision to try to ‘beat the system’ by making a wholly fraudulent protection visa claim tilts the scales against him. The Tribunal has remarked on many occasions that false protection visa claims not only undermine Australia’s humanitarian program but impact directly on the processing of legitimate claims.
It should not be assumed that a decision to refuse his visa application will spell the end of his football career. As noted above, the applicant was very positive about his capacity to reconnect with his rugby roots in Fiji. The respondent’s solicitor was emphatic that a visa refusal decision in these proceedings was not a life ban, although he conceded that there is no hard and fast rule.
A decision to refuse to grant the visa will no doubt be a setback to the applicant. He has said that he takes responsibility for his actions and, regrettably, that must include the refusal to grant him a visa to remain in Australia.
I find that the applicant fails the character test in paragraph 501(6)(d)(i). Moreover, the nature of his offending and the risk of further offending require me to exercise the discretion to refuse to grant the visa, taking into account the primary and other considerations in the Direction.
I therefore affirm the decision by the Minister’s delegate to refuse to grant a bridging visa to the applicant.
DECISION
The decision under review is affirmed.

I certify that the preceding 119 (one hundred and nineteen) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

...............................SGD........................................
Associate
Dated: 10 May 2022

Dates of hearing: 21 and 28 April 2022

Applicant: In person

Solicitors for the Respondent: Mr L Dennis, Minter Ellison

Dates of hearing:	21 and 28 April 2022
Applicant:	In person
Solicitors for the Respondent:	Mr L Dennis, Minter Ellison