XFKR and Minister for Immigration and Border Protection (Migration) - [2017] AATA 2385

XFKR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2385 (29 November 2017)
Division:GENERAL DIVISION
File Number: 2017/5373
Re:XFKR
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Deputy President Dr Christopher Kendall
Date:29 November 2017
Place:Perth

The decision under review is affirmed.
..................[sgd]......................................................
Deputy President Dr Christopher Kendall
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – best interests of minor children – expectations of the Australian community – other considerations – non-refoulement obligations – concerns regarding risk of mandatory detention – strength, nature and duration of ties – extent of impediments if removed – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) – s 189, s 196, s 197C, s 198, s 499(2A), s 501(3A), s 501(6), s 501(7)(c), s 501CA(4), s 501E(2), s 501K
CASES
Ahori and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 601
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83
Minister for Immigration and Border Protection and BCR16 [2017] HCA Trans 240
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448
Minister for Immigration and Border Protection v Le [2016] FCAFC 120
Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999
SECONDARY MATERIALS
Direction No 65: Migration Act 1958 – Direction under Section 499 – Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA – paras 6.2, 6.3, 7(1), 8(1), 13(2), 13.1(1), 13.1(2), 13.1.1(1), 13.1.2(1), 13.3(1), 14(1)(a), (b) and (e), 14.1, 14.2(1), 14.4, 14.5(1)
Direction No. 75 – Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2C)(b) – Part 2
1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol
Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth)
REASONS FOR DECISION
Deputy President Dr Christopher Kendall
29 November 2017
INTRODUCTION

Pursuant to s 35(3) of the Administrative Appeals Tribunal Act 1975, the Administrative Appeals Tribunal (the “Tribunal”) can restrict the publication of the names of a party to proceedings before the Tribunal and allocate a pseudonym to a party if the Tribunal deems it appropriate to do so.
The Tribunal determined that it was appropriate to restrict the identification of the applicant in these proceedings because the offences for which he was found guilty involved domestic violence against his wife and minor children whose future interests merit protection. The Tribunal also noted arguments in relation various safety concerns for the applicant in relation to his deportation to Myanmar (should that occur). Accordingly, the applicant will be referred to below by the pseudonym “XFKR”. The Tribunal has also determined that it should not disclose the names of any witnesses and those who provided character references for XFKR.
By application dated 6 September 2017 (G1), XFKR seeks review of a decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”), made on 4 September 2017 (G4), refusing, pursuant to s 501CA(4) of the Migration Act, to revoke the mandatory cancellation of XFKR’s visa. XFKR’s visa had previously been cancelled pursuant to s 501(3A) of the Migration Act because it was found that he did not pass the character test by reason of his substantial criminal record and because he was serving a term of imprisonment for a crime against a law of the Commonwealth or a state. On review, the Minister’s delegate determined that there were no other reasons the original decision should be revoked.
BACKGROUND
A summary of the background facts relevant to this matter were provided by counsel for the Minister in a Statement of Facts, Issues and Contentions dated 3 November 2017. These background facts were not disputed and provide as follows.
XFKR is a citizen of Myanmar. He arrived in Australia in 2013 as the holder of a Class XB Subclass 200 Refugee visa (G18).
On 13 September 2016, XFKR was sentenced in the County Court of Victoria to 20 months imprisonment for the following crimes of violence against his wife and children (G7 at 21):

Court
Date Offence Court Result

Melbourne County Court 13.09.2016 Make threat to kill 12 months imprisonment

Make threat to kill 6 months imprisonment. 4 mounts of sentence concurrent

Intentionally cause injury 6 months imprisonment concurrent

Unlawful assault common law assault, assault with weapon (4 charges) 3 months imprisonment on each count. 2 months of each count concurrent and concurrent.

Common law assault 2 months imprisonment concurrent

Assault with weapon, common law assault 1 month imprisonment on each count concurrent and concurrent

On 6 October 2016, as a result of his 13 September 2016 convictions, a delegate of the Minster cancelled XFKR’s visa pursuant to s 501(3A) of the Migration Act. This was a mandatory cancellation as XFKR was serving a sentence of imprisonment.
On 11 October 2016, XFKR made representations to the Minister seeking revocation of the mandatory visa cancellation decision (G9).
On 4 September 2017, a delegate of the Minister made a decision, pursuant to s 501CA(4) of the Migration Act, refusing to revoke the mandatory cancellation of XFKR’s visa because they were not satisfied that XFKR passed the character test or that there was another reason why the original decision should be revoked (G4).
On 6 September 2017, XFKR lodged an application with this Tribunal for review of the decision not to revoke his visa cancellation (G1).
ISSUES
The broad issue for consideration by this Tribunal is whether the discretion in s 501CA(4) of the Migration Act should be exercised in XFKR’s favour having regard to the mandatory considerations identified in Ministerial Direction No. 65 (discussed below).
To determine this broad issue, the Tribunal must decide:
(a)whether XFKR passes the “character test” as that term is used in s 501(6) of the Migration Act ; and
(b)if not, whether the discretion in s 501CA(4) of the Migration Act should be exercised in XFKR’s favour such that the mandatory decision to cancel his visa is revoked.
EVIDENCE
This matter was heard in Perth on 10 November 2017 and 23 November 2017. XFKR appeared in person and was represented, by video link, by counsel Mr Daniel Robinson. Mr Robinson was instructed by Ms Kate Bones of Refugee Legal. XFKR was assisted by a qualified Myanmarese interpreter. The Minister was represented by Mr Gerrard of the Australian Government Solicitor.
The Tribunal thanks these legal representatives for the quality of their written and oral advocacy. The jurisprudence in relation to the issues raised by this matter is complex. The clarity of the submissions and the intellectual strength of the legal analysis provided by both counsel greatly assisted the Tribunal in better understanding and applying what is a challenging and fast changing area of the law. The Tribunal also notes the respect both counsel showed each other and those who appeared as witnesses. Some of the witnesses who appeared have been victims of violence. The advocacy style shown by both counsel when addressing these witnesses was of a sort that other lawyers would do well to emulate.
The evidence before the Tribunal consisted of:
(a)XFKR’s Statement of Facts, Issues and Contentions dated 20 October 2017 (A1);
(b)a Statutory Declaration made by XFKR, dated 19 October 2017 (A2);
(c)a Statutory Declaration made by XFKR’s wife, Ms Z, dated 19 October 2017 (A3);
(d)a Statutory Declaration by XFKR’s son, dated 19 October 2017 (A4);
(e)a Psychiatric report dated 12 October 2017, annexing a letter of instruction (A5);
(f)relevant extracts from XFKR’s visa file, obtained from the Department under Freedom of Information (A6);
(g)letters from XFKR’s three younger children (A7);
(h)a report by a clinical psychologist, dated 23 May 2017, concerning family counselling with XFKR’s wife and children (A8);
(i)a letter from a facilitator for Alcoholics Anonymous & Narcotics Anonymous, dated 9 June 2017 (A9);
(j)a letter from a local pastor dated 18 October 2017 (A10);
(k)Photos of XFKR with his children, taken at a church event in late 2014 (A11);
(l)a certificate issued by a refugee organisation, dated 13 February 2013 (A12);
(m)a letter from the Secretary of … Community Victoria, dated 10 March 2013, appointing XFKR as 'Advisor for 2013’ (A13);
(n)a 131 page set of G-Documents (G1 – G23) received by Tribunal on 22 September 2017 (R1);
(o)the Minster’s Statement of Facts, Issues and Contentions dated 3 November 2017 (R2); and
(p)Department of Foreign Affairs and Trade (“DFAT”) Country Information Report on Myanmar received by the Tribunal on 10 November 2017 (R3).
The Tribunal also heard oral evidence from XFKR, Ms Z and XFKR’s eldest son. These witnesses were assisted by the interpreter as required.
The Tribunal has reviewed all of the material before it and highlights relevant materials below.
CONSIDERATION
(i) Does XFKR pass the character test?
The Tribunal must first consider whether XFKR passes the “character test” as that term is defined in s 501 of the Migration Act.
Section 501 of the Migration Act deals with refusals or cancellations of visas on character grounds. Subsection 501(3A) provides that the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a),(b) or (c); or
... and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory.
Section 501(6) of the Migration Act provides that a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)).
Section 501(7) of the Migration Act relevantly provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
...
(c)the person has been sentenced to a term of imprisonment of 12 months or more.
It is common ground that:
·as a consequence of receiving a sentence of imprisonment in excess of 12 months, XFKR has a “substantial criminal record” and, as a result, does not pass the character test in s 501(6) of the Migration Act; and
·as XFKR was serving a sentence of imprisonment, on a full-time basis in a custodial institution, he was liable for the mandatory cancellation of his visa pursuant to s 501(3A) of the Migration Act.
On the evidence before it, the Tribunal finds that XFKR does not pass the character test as defined in the Migration Act.
(ii) Should the Tribunal Revoke the Decision to Cancel XFKR’s Visa?
Having determined that XFKR does not pass the character test and was liable for the mandatory cancellation of his visa, the Tribunal must now consider whether the mandatory cancellation of XFKR’s visa should be revoked by the Tribunal standing in the Minister’s shoes.
Section 501CA(4) of the Migration Act provides that the Minister (and the Tribunal) may revoke the mandatory cancelation of an applicant’s visa 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.
[Emphasis added].
The central question before the Tribunal is whether there is “another reason” to revoke the decision to cancel XFKR’s visa.
When considering XFKR’s request to revoke the decision to cancel his visa, the Tribunal must comply with Ministerial Direction No. 65 (“Direction No. 65”) (as per s 499 (2A) of the Migration Act).
Direction No. 65 was issued by the Minister on 22 December 2014 and is binding on the Tribunal from that date.
Paragraph 6.2 of Direction No. 65 provides “general guidance” to the Tribunal in relation to the character test and the exercise of the Tribunal’s discretion to revoke a decision to cancel a visa. It provides:
6.2 General Guidance
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501 CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No. 65 then sets out a number of “Principles” to be applied by the Tribunal, including the following:
6.3 Principles
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
...
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1) of Direction No. 65 provides guidance to the Tribunal on how to determine whether mandatory cancellation of a non-citizen’s visa should be revoked.
Paragraph 7(1) states:
How to exercise the discretion
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
...
(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 8(1) of Direction No. 65 further states:
8. Taking the relevant considerations in account
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. ...
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of the visa.
(4)Primary considerations should generally be given more weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
Part C of Direction No. 65 sets out considerations that are relevant when determining whether to exercise the discretion in s 501CA (4) of the Act.
Primary Considerations
Pursuant to paragraph 13(2) of Direction No. 65, the following are “primary considerations” that the Tribunal must take into account in deciding whether to revoke the cancellation of an applicant’s visa:
i.Protection of the Australian community from criminal or other serious conduct;
ii. The best interests of minor children in Australia; and
iii. Expectations of the Australian community.
(i) Protection of the Australian Community
Paragraph 13.1(1) of Direction No. 65 provides that decision-makers considering the protection of the Australian community should have regard to the principle in paragraph 6.2(1) (set out above). Paragraph 13.1(2) then identifies two other factors to which consideration should also be given:
(a)The nature and seriousness of the person’s conduct to date; and
(b)The risk to the Australian community should the person commit further offences or engage in other serious conduct.
(a) The nature and seriousness of the conduct
Paragraph 13.1.1(1) of Direction No. 65 gives a non-exhaustive list of factors to which decision-makers must have regard in considering the nature and seriousness of a person’s criminal conduct. Relevantly, these include:
(1)In considering the nature and seriousness of the person’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that, without limiting the range of offence that may be considered serious, violent and/or sexual crimes are viewed seriously;
(b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(c)The sentence imposed by the courts for a crime or crimes;
(d) The frequency of the person’s offending and whether there is any trend of increasing seriousness..

In assessing the seriousness of XFKR’s criminal offending, the Tribunal first turns its attention to XFKR’s criminal record, as outlined in paragraph 6 above.
In this regard, it is noted that in sentencing XFKR for a range of domestic violence against his wife and children committed between December 2014 and October 2015, His Honour Judge Gamble stated that XFKR’s conduct was “disturbing” and “very serious” (G8 at 42). His Honour further stated (G8 at 42 - 43):
These offences represented a serious breach of the trust that each of the victims placed in you. They were each very vulnerable and that fact must have been patently obvious to you.
There are a number of aggravating features to your offending. The use of a weapon in the form of the pair of scissors to inflict the injury on your wife. The fact that some of your offending against your wife was witnessed by one or more of your children. The fact that your offending against the children was undertaken either in the view of your wife or in her immediate presence. The use of a homemade garrotte, a frightening looking weapon, to reinforce and heighten the level of fear occasioned by the threat to kill your wife. The fact that some of your offending against your wife occurred in humiliating circumstances and in the presence of other people outside the family unit.
I have no doubt that it was your intention at the time you did what he did to your family, to cause each of them great fear. In that regard, your actions powerfully speak for themselves.
…
I am satisfied that you knew at the time that your behaviour was unlawful and very serious.
[Emphasis added]
In sentencing XFKR to a term of imprisonment for his offences, His Honour described the events in question as follows (G8 at 25-30):
There have been a number of previous family violence incidents relating to your wife, which have included serious assaults that have not been reported to the police. The children have also been threatened during a number of these incidents and have witnessed many of the assaults on their mother. Your wife cannot remember specific dates of all the times that she has been threatened, assaulted and injured.
In 2012, while the family were still residing in Malaysia, you threatened to throw your wife off the 17th floor balcony of the apartment you were then living in. Having been dragged to the balcony, she grabbed the railings and pleaded for forgiveness. At that point, you stopped. After returning inside, you then became enraged again. You took that rage out on your wife by punching her in the face and head. You then threatened to burn down the apartment, dragged her to the stove by her hair and then tried to light the gas. Unsurprisingly, your wife was in fear for her life.
Circumstances of the offending
The circumstances of the offending to which you have now pleaded guilty were opened at the plea hearing on 3 May and are contained in the typed prosecution opening, dated 2 May 2016. Briefly stated, they are as follows:
When, in 2014, the family moved to an address in …, you became increasingly jealous and resumed drinking alcohol, after having abstained for some time previously.
On one evening in 2014, your wife was asleep with two of your children. You came into the room and woke her up. You then commenced to interrogate her about her ex-boyfriend and an argument developed. You then went to the kitchen and obtained a pair of scissors. On returning to the bedroom, you used them to stab your wife in the knee as she was lying on the bed next to your youngest son. It caused a quite deep, one inch wound which bled profusely.
However, that did not deter you from continuing with the assault on your wife, or cause you to pause and reflect on your behaviour. Rather than desist, you then punched your wife to the head a few times with your fists. She attempted to cover up as best she could and told you to stop, which you did. It is the combination of those physical assaults which form the basis of intentionally cause injury alleged in Charge 1 on the indictment. I note that your wife did not seek any medical attention for the wound to her knee for fear of being asked how she sustained the injury. She has been left with a scar to her knee.
On a separate occasion in December of 2014, you again became angry at your wife and decided to wake her up at about 1 am, to have sex with her. As she was fully entitled to do, your wife indicated that she was too tired. That simple and polite response on her part enraged you. You responded, not with words, but with significant violence. Using both fists you punched her numerous times to the back of her head and to both eyes. She experienced significant pain as a result. Again she felt compelled to bring an end to the assault by apologising to you, her husband. This assault forms the basis for the offence of unlawful assault alleged in Summary Charge 12.
By 14 October of 2015, the family were living in a house in … On that date you were drinking alcohol. At about 11.30 pm, you entered the bedroom and started interrogating your wife about a boyfriend that she had when she was a teenager. In response, she told you that she wanted to sleep and then turned her back on you. You immediately became angry and responded with violence by punching her to the back of the neck. It is this act on your part that forms the basis for the common law assault offence alleged in Charge 2 of the indictment. During this incident, you also said to your wife, “You cannot lie to me or I’ll kill you”. As she feared for her life and feared being further punched, she felt too afraid to tell you to leave her alone. Throughout the night you prevented her from sleeping by almost continuously pushing her feet. By morning she felt exhausted and remained fearful of you.
At approximately 6 pm on the following day, 15 October 2015, you went and purchased alcohol. When the children saw you return with that alcohol and start drinking it, they retreated to their bedrooms in fear. At about 9 pm, you called your oldest son into the lounge room and directed him to sit on the floor. You then did likewise in relation to the other three children. All of those children were sitting within arm’s length of you, their father. Your wife had a full view of what was occurring in the lounge room from where she was located in the bedroom.
While your children dutifully sat near you, you used a knife to stab and carve crosses into the floor boards. As you did so, you said to your eldest son, “[X], do you want to die?” It is this conduct on your part that forms the basis for the offence of aggravated assault with a weapon alleged in Summary Charge 15.
You then said to the other three children “Are you scared of me? Who am I” They replied “Daddy”. You then pointed the knife at each of them and said “Are you scared of dying?” You then asked them whether they were listening to you, to which they replied. “Yes”. You then said, “I’m not scared of killing people”. Your actions in pointing the knife at your three youngest children, in the circumstances that you did, forms the basis for the remaining three offences of aggravated assault with a weapon, Summary Charges 17, 19 and 21 respectively.
Following that, you told the children to stand up and cross their arms, which they did. They then obeyed you when you told them to go to their bedrooms. Shortly afterwards you called them back to the lounge room. Despite being terrified, they did so.
At that point, once you had all of the children assembled before you, you called your wife to the room and directed her to sit on the floor next to the children. She duly complied. Almost immediately you told her to go and get “the big knife” from the kitchen. She did so and handed it to you on her return. You then asked her, “Are you scared of me? Do you want to die?” As she moved closer to you at your request, you grabbed her by the back of the neck and pulled her closer. You then pointed the knife at the back of her neck. She could feel the blade against her skin. She felt scared. It is this use of the knife against your wife, in those circumstances, that forms the basis for the offence of threat to kill alleged in Charge 3 on the indictment.
Your wife begged you not to do what you were doing. As she went to stand up, you directed her to sit down, which she did. You then made the children sit in front of you. As you pointed the knife at each of them in turn, you asked in reference to what you had just done to their mother, Did you see this? Are you going to listen to me? Your dad is not scared to kill someone”. Unsurprisingly, all of the children were crying and shaking in fear as a result of what they had been subjected to and witnessed. Despite being told to return to their rooms by their father, the youngest child attempted to stay with his mother. You prevented him from doing so by insisting that he return to his bedroom.
Once the children had left, you took the opportunity to launch a physical assault on your wife. You punched her to the back of her head and to her chest with sufficient force to break the skin. You also punched her to the back several times before making her follow you into the bedroom. This part of your assault on your wife forms the basis for the offence of common law assault alleged in Charge 4 on the indictment.
Under the guise of needing to go to the toilet, your wife sneaked into the children’s bedroom and told them to leave the house. On being called back to the bedroom by you, she asked you to get her a glass of water, which you did. While you were gone she ran to a neighbour’s house, only to return shortly afterwards because she believed the children were still in the house. As it turned out, they had already escaped by jumping out of a window.
You then began yelling at your wife, telling her that she had brought shame on you. A leader of the local Burmese community then attended the house with no success. When you angrily threatened to kill your wife, she ran away. Undeterred, you chased her whilst holding a pair of scissors. You only desisted after you were yelled at by one of the neighbours. At that point, you got into your car and drove away. It is this incident involving the scissors which forms the basis for the offence of aggravated assault with a weapon alleged in Summary Charge 23.
When they had fled, the children ran to the … home of … and ..., who were friends of your family. You arrived at that address at about 10 pm, smelling strongly of alcohol. You told … that your wife was no good and you would beat her. You were then overheard calling your wife and telling her that you would beat her. At that point, … put the children to bed.
Then you, accompanied by Ms … and her son returned to your home in … to get your wife and bring her back to Ms . home. Once you all returned to that home, you threatened to beat your wife in front of the ... family. You then picked up a tin can and threw it at your wife. When you then tried to punch her, you were restrained by two members of that family. Undeterred, you continually threatened to beat your wife. You then humiliated her by demanding that she remove her clothes. When she commenced to do so, the members of that family looked the other way out of respect. Then you attempted to kick and hit your wife. You were prevented from doing so by the intervention of others. It is this combination of conduct towards your wife, after first returning to the ... family’s home, that forms the basis for the offence of common law assault alleged against you in Charge 5 on the indictment.
At this point, you asked your wife to return home with you and your children. When she declined to do so, you left in your car.
At about 6.00 pm on the following day, 16 October 2015, you returned to the … family’s home and banged on the door, while demanding that it be opened. You threatened to kill your wife unless you were let in. Too scared to do so, your wife called the police instead. For whatever reason, members of the … family opened the door for you. When you entered, it was apparent to your wife that you were in possession of a home-made garrotte, which had been fashioned from a knife handle and a guitar string. You immediately removed it from your own neck and showed it to her. As you did so, you said, “This is the string that I’m going to use to strangle you”. After then handing your mobile phone to her and telling her to ring the police, you said to her, “I’m going to cut your neck and drink your blood. I’m not scared to go to gaol”. It is this threat, uttered in those circumstances, that forms the basis for the offence of threat to kill alleged in Charge 6 on the indictment.
Having threatened your wife in that way, you then tried to place the garrotte around your wife’s neck. You were only prevented from successfully doing so by the intervention of two members of the … household. Your actions caused your wife to fear for her life. In short, she was terrified that you were going to kill her.
These comments reflect considerable judicial concern in relation to XFKR’s conduct.
The Tribunal notes that in the Statement of Facts, Issues and Contentions lodged on behalf of XFKR dated 20 October 2017 (A1 at 4), it was conceded that XFKR acknowledged that his conduct was “violent” and “serious” and that he was “clearly deserving of the sentence of imprisonment” he was made to serve.
During cross examination, XFKR was unable to offer an explanation for his conduct because he said that he was unable to recollect his offending. He confirmed, however, that he had read the sentencing remarks of Judge Gamble and accepted that his violent offending had occurred as described.
In a statement of reasons for decision not to revoke the mandatory visa cancellation decision (G5 at 14), the delegate for the Minister correctly identified the vulnerability of victims in domestic relationships and the damaging effect of such actions on family relationships generally. This was expanded on in Ministers Statement of Facts, Issues and Contentions dated 3 November 2017 (R2) who correctly identified that XFKR’s victims (as children and as a physically and emotionally abused wife) are, for the purposes of Direction No. 65, extraordinarily vulnerable members of the Australian community.
Applying the principles in paragraph 13.1.1 of Direction No. 65, the Tribunal agrees that XFKR’s wife and children are indeed vulnerable members of the community. They should not, ever, under any circumstances, live in fear of threat or injury from their father or husband. In this regard, the Tribunal notes the comments made by Senior Member J Sosso in Ahori and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 601 at [53] that:
53.Domestic violence is a very serious matter. In no way can violence in a domestic situation by one partner against another be trivialised or downplayed. The implications of such violence on the children, broader family and friends of the parties involved can be serious and long lasting.
The Tribunal would add that, in a society that adheres to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systemically intolerable. Its harms are threefold. First, it results in direct physical and psychological harm for those women against whom the violence is directed. Second, it psychologically harms the children of these women – children who, as in this instance, witness their mothers being abused, degraded and dehumanised ̶ and sends a message to these children (male and female) that behaviour of this sort is to be tolerated. Third, it normalises those socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated.
Having reviewed the evidence before it, the Tribunal finds that XFKR’s conduct in the commission of acts of family violence can and should be viewed, objectively, as very serious. His criminal behaviour evidences a blatant disregard for the wellbeing of his wife and children and the laws that seek to protect them. Overall, the nature of XFKR’s offending demonstrates a degree of recklessness toward the well-being of the Australian community that cannot be tolerated or dismissed.
All of the above weighs heavily against the revocation of the decision to cancel XFKR’s visa.
(b) The risk to the Australian community should further offences be committed.
Paragraph 13.1.2(1) of Direction No. 65 sets out the principles and factors to which the Tribunal should have regard in assessing whether a non-citizen represents an unacceptable risk of harm to members of the Australian community. It provides:
13.1.2The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In considering the risk 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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In relation to the risk to the Australian community should XFKR commit further offences or engage in other serious conduct, the Tribunal notes the following submissions made on XFKR’s behalf in his Statement of Facts, Issues and Contentions dated 20 October 2017 (A1):
14.Risk is an evaluation not only of seriousness, but also fundamentally an evaluation of probability. The lower the likelihood that he would actually repeat such behaviour, or behaviour of such kind, the less purpose is served by the cancellation of his visa in terms of protecting the community.
15.It is submitted that the Tribunal can have adequate confidence that, undeniably serious as XFKR’s behaviour was, it is unlikely to be repeated. This is not something that can or ought be established by submissions alone, and the Tribunal is asked to form that state of confidence primarily on the basis of XFKR’s own evidence, in his own words, and what those words reveal about his own attitudes, intentions, actions and motivations for the future.
In relation to his risk of reoffending, XFKR in his statutory declaration dated 19 October 2017 (A2) stated that while in prison he was able to undertake a number of rehabilitation courses, which included amongst others, Alcoholics Anonymous, a 24 hour Drug and Alcohol Treatment (G17) course and the course 'Harm reduction'. XFKR also engaged in anger management treatment, completing four weeks before being moved to a different prison. He was, in the circumstances, unable to complete this treatment program.
XFKR has clearly shown a willingness to undertake rehabilitation programs and this weighs in his favour.
In his personal circumstances form (G10 at 62), XFKR said that there was ‘no likelihood to re-offend to maintain a good family relationships to continue to provide for family’.
Judge Gamble found that given XFKR’s age and the lack of previous criminal history, he has 'reasonable' prospects of rehabilitation, assuming he completed appropriate psychological counselling and alcohol and anger management treatment (G8).

In this regard, the Tribunal notes the following comments made by His Honour in his sentencing remarks about XFKR’s pre-sentence report (G8 at 38 and 39):
The authors assessed you to be a medium risk of re-offending and to have a high level of need in relation to your alcohol and your marital and domestic situation. They concluded that you will present a significant risk to your family, were you to lapse back into alcohol abuse. They also note that such a lapse would be able to be responded to immediately if you were on parole, as compared to the lengthier process that would need to be undertaken were he subject to a community corrections order. They also note that a further advantage of parole over a community correction order is that it would provide you with a more suitable intensive supervision regime.
The Tribunal also notes His Honour’s remarks about a report provided by a forensic psychologist (G8 at 38 and 39):
Report of Dr [G]
57At the court's request, you were assessed by Dr [G], a forensic psychologist at … The resultant report was dated 14 July 2016.
58Dr [G] conducted a two hour assessment of you at the … Assessment Prison on … July. He noted that you continued to report memory problems from the relevant period and indicated that you act “out of character” when under the influence of alcohol. In his view, you expressed a genuine desire to receive appropriate treatment relating to alcohol and anger management, with a preference for one-on-one counselling.
59Dr [G] assessed you as falling within the average range of intellectual functioning. On the history given, alcohol use was considered to be a salient risk factor in your past offending.
60While he noted that there were a number of protective factors present, he also observed that your understanding of your risk profile and potential for future aberrant behaviour was somewhat diminished.
61Dr [G] concluded that you represent a low to moderate risk of re-offending violently and a moderate to high risk of re-offending at the present time. Your current circumstances were considered to afford at least a moderate level of protection against a relapse into domestic/general violence. Ultimately, Dr [G] concluded that you currently present with at least a low risk of future general violence, and at most, a moderate risk of intimate partner violence in the future. Any future offending, if it occurred, was considered to be most likely to be similar in nature and associated with alcohol, in combination with cognitive/emotional overload due to self-regulation deficits.
The Tribunal also notes that Dr [G]’s report provides confirmation, based upon his relevant professional expertise, that XFKR is now in a position where his risk of reoffending in a similar fashion ought not be considered ‘as anything higher than low’, provided that he successfully remains sober.
XFKR also provided a range of supporting letters and statutory declarations, including:
·a statutory declaration from his wife dated 19 October 2017 (A3);
·a statutory declaration from his eldest son dated 18 October 2017 (A4);
·letters from his three younger children (undated) (A7);
·a letter from a pastor dated 18 October 2017 (A10); and
·a letter from his local ethnic community group dated 10 March 2013 (A13).
The Tribunal has reviewed all of the above and notes that all speak favourably of XFKR ’s character and the love and support these individuals are willing to provide him. It is also clear from his wife’s oral evidence that she will struggle financially without her husband as she is uneducated and does not speak English.
In his Statement of Issues, Facts and Contentions dated 20 October 2017 (A1) the Minister contended:
27.Whilst the applicant received his convictions on a single date they cover a period of offending between December 2014 through to October 2015. There is also evidence that prior violent conduct occurred in 2012 when the applicant and his family were residing in Malaysia. The respondent submits that there is a reasonably lengthy period of offences and a clear pattern of violent and abusive conduct. Furthermore, the offending commenced shortly after arrival in Australia and the convictions themselves are very recent having only been entered last year.
28.The applicant has provided evidence of undertaking rehabilitation courses whilst incarcerated. Whilst this is encouraging, it is nevertheless the case that the applicant’s rehabilitation remains untested in the community. In this regard, the respondent notes the sentencing Judge’s comments in respect of the pre-sentence provided on 11 August 2016:
The authors assessed you to be a medium risk of re-offending and to have a high level of need in relation to your alcohol and your marital and domestic situation. They concluded that you will present a significant risk to your family, were you to lapse back into alcohol abuse. [G8, p39].
29.The applicant has subsequently filed a report from Dr [T] which notes that:
I cannot accurately predict the risk of future violence, but in this man I can confidently state that it does largely turn on whether he is permanently sober or not. (…p5]
30. Later in his report, Dr [T] states:
If this man successfully remains sober, then I could not see his risk of reoffending in a similar fashion as anything higher than low. Were he to drink, then my own estimation is that his behaviour would be likely unpredictable, though in a direction towards violence. […p 6]
31.The respondent notes, however, that there is evidence that not all of the applicant’s conduct is attributable to his problem with alcohol. In this regard, the respondent notes the views of the pre-sentence report referred to by Judge Gamble in the following terms:
[A]t interview, you blamed your offending behaviour on alcohol abuse, to the point where you claimed that you would not behave in such a violent way if he were sober. The authors relevantly noted that history would suggest otherwise, as at the time of the balcony incident in 2012, you were midway through a two-year period of alcohol abstinence. Notwithstanding that fact, you claimed to have no memory of that previous incident. You explained your relapse into further alcohol consumption by reference to “peer pressure”.
In the author’s view, whilst alcohol was no doubt a contributing factor in your offending, your attempts to blame it for all of his aberrant behaviour demonstrated an inability or unwillingness to take personal responsibility, including for the decision to drink large amounts of alcohol. [G8, pp38-39].
32.Clearly there is a concern expressed that the applicant continues to present a risk of violent offending and that risk significantly elevates if the applicant again returns to alcohol use.
33.Given the violent nature of the offences and the nature of the harm to individuals, including vulnerable persons, should the applicant engage in further criminal conduct of this nature, the respondent contends that the Australian community should not be expected to tolerate such a high risk of recidivism: see paragraphs 6.3(3) and 13.1.2(1) of Direction No. 65.
[Emphasis added]
Like the Minister’s delegate before it, in considering whether XFKR represents an unacceptable risk of harm to the Australian community, the Tribunal has had regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. It is noted that some conduct and harm that would be caused if it were to be repeated is so serious that any risk that it is repeated may be unacceptable. Further, in making an assessment regarding the risk to the Australian community, the Tribunal has had regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
(b)the likelihood of further criminal or other serious conduct, taking into account information and evidence on the risk of the person re-offending
The Tribunal accepts that XFKR has shown remorse for his offending and the negative effect that it has had on his family (G8 at 41, A5 at 2, and A2 at 4). However, this is tempered by the comments made by Gamble J in his sentencing remarks that:
77I accept that you are remorseful to some degree, but there are nuances involved and the finding of remorse comes with some qualifications. You were certainly not fully remorseful immediately after each of these offending episodes and that remained the case when you were interviewed by the police. It is difficult to see how your lack of memory could have been as extensive as you professed it to be and to the extent that you admitted wrongdoing, you down played the nature and extent of it on occasions. You also seemed to have largely, if not entirely, blamed your consumption of alcohol for whatever you did do. It was hardly a full personal and legal acceptance for your criminal wrongdoing.
This is of considerable concern to the Tribunal and the evidence before the Tribunal did little to address this concern.
The evidence before the Tribunal shows that XFKR has the support of his family and friends and that individuals will seek to assist him if he is released from detention. It is noted, however, that this support network did not stop XFKR from offending in the past and the Tribunal has concerns that their ongoing support will not stop him from engaging in illegal conduct again should the opportunity arise.
Further, many of the medical opinions relating to XFKR’s risk of offending rely on him remaining sober. XFKR’s oral evidence is that he has sought to address his alcohol abuse and anger management issues by completing Alcoholics Anonymous, a 24 hour Drug and Alcohol Treatment (G17) and partially completing an anger management course all while in prison. He said that he is currently undertaking a Narcotics Anonymous course and that he has enrolled in two additional drug education programs.
The evidence before the Tribunal shows that XFKR has made efforts to rehabilitate and address his offending behaviour and its causes. However, his conduct was extraordinarily serious and, should he reoffend, the result for the community would again be quite serious and unacceptable. In that regard, it is noted that XFKR has not been able to complete the anger management course undertaken in prison and, further, has never specifically addressed his anger management issues in the context of violence against women specifically. This is of considerable concern to the Tribunal given that much of his violent behaviour was focussed on his wife. When asked by the Tribunal whether he felt there was a need to address issues with violence against women, XFKR did not agree that this was needed, responding that his issue was with violence and alcohol ̶ not women. This reflects an alarming lack of insight on his part and raises concerns about XFKR’s ability to manage his issues with anger and domestic violence.
The Tribunal highlights comments made in XFKR’s psychological report in which Dr [T] indicated that “I cannot accurately predict the risk of future violence, but in this man I can confidently state that it does largely turn on whether he is permanently sober or not” and “Were he to drink, then my own estimation is that his behaviour would be likely unpredictable, though in a direction towards violence” (A5 at 5 and 6).
Before this Tribunal, counsel for the Minister submitted that even though XFKR may have taken some steps to address his offending behaviour, this had not yet been tested in the community. The Tribunal agrees. On his own evidence, XFKR drinks when with members of his ethnic community. He has not been with members of that community while sober in prison or detention. This raises concerns about his risk of reoffending once he again engages with his social network outside of detention.
XFKR has been unsuccessful in his attempts to abstain from alcohol in the past and without demonstrating an ability to do so in the community in the future it remains to be seen whether his drinking and violence problems have been sufficiently addressed. Having regard to the material before it, the Tribunal is led to conclude that XFKR has not adequately resolved the issues which contributed to his offending behaviour. This, in turn, raises concerns about the risk of reoffending.
Overall, XFKR’s conduct was very serious. Should he reoffend, the result for the community (and, in particular, his wife and children) would again be completely unacceptable. The Tribunal is not satisfied that XFKR entirely understands the causes of his past conduct and has concerns about his ability to not harm others in circumstances where alcohol is available and in an environment where he does not fully appreciate the consequences of violent and stereotypical attitudes towards women.
For the reasons outlined above, the Tribunal doubts whether XFKR’s rehabilitation and therapeutic efforts will prove successful long term. While commendable, on the evidence the Tribunal finds that there remains a real risk that XFKR will continue to abuse alcohol if released into the community. This poses an unacceptable risk to the Australian community as there is a risk that he will then reoffend. Given the violent nature of his crimes, directed as they were at his wife and young children, this is an unacceptable risk to the community and weighs against any revocation of the decision to cancel XFKR’s visa.
(ii) Best interests of minor children in Australia
XFKR is the biological father of four minor children residing in Australia.
Paragraph 13.2(4) of Direction No. 65 sets out the factors the Tribunal must consider in determining how XFKR’s children will be affected by any decision not to revoke the decision to cancel XFKR’s visa:
(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 not 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 contact 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 any 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 non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect;
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct. Other considerations
In relation to the best interests of his children, XFKR contended as follows in submissions to the Department (G11 at 74):
[XFKR] is engaged in his children's life and has always contributed to their parenting. It is conceded that the offending includes his children and they are vulnerable members of the community. Nevertheless, it is clear that [XFKR] is an important part of his children's lives, and this is demonstrated by DHHS arranging prison visits. [XFKR] feels a deep remorse and shame for the hurt he has caused his children and this contributes to his commitment to cease drinking alcohol and address the underlying issues of his offending behaviour.
We submit that [XFKR’s] removal would impact adversely upon four minor children. The fact that the index offences involved the children does not justify a conclusion that [XFKR] is unlikely to play a positive parental role in the future. In summary, we submit that the decision maker can properly find that revocation would be in the best interests of his children. These children have experienced the trauma of family separation in the past, currently while their father is in custody, and we submit that further separation would be cruel.
The Tribunal also notes a statutory declaration sworn by XFKR ’s wife dated 19 October 2017 (A3) which relevantly reads as follows:
6.Our children miss him very much. They are not happy at school or church, because they miss him when they see the other families with their fathers. The youngest always asks me, why is dad not back yet. He asks me not to close the door at night when he is going to sleep because his dad is coming back. My older sons accuse me, saying why is he not coming back, you are telling us a lie. This is very hard for me.
7.I am not able to help them with their education because the school curriculum is English and I don't know any of that. [XFKR] knows English and he could help them, he used to help them with their homework before he went to prison. It would be good for them to have their dad back, to help them with their learning again.
8.It is a bad situation for me living as a single mother with four children. There are no other single mothers who I know. It is very difficult economically. It is distressing to see the impact that this separation is having on our children. I cannot live without him. I ask that the government please give [XFKR] his visa back, to take away our suffering and for the future good of our family.
The Tribunal notes a letter from XFKR ’s son dated 28 November 2016 (G13 at 82) which relevantly reads as follows:
I, …, am writing this letter on behalf of my father [XFKR] … I have just found out from my mother that my father’s visa has been cancelled by the Australian Immigration Office. As soon as I heard this I was shocked and surrounded in sadness. I’m writing to you because I wold like you to rethink about cancelling my father’s visa please. I’m not happy about this and I can’t concentrate at school lately. My siblings and I miss my father so much during his time in prison. My mother is struggling from day to day. My youngest brother keeps asking for Daddy and we don’t know what to say. He often waits by the front door waiting for his father to come home. If you sent him back to … we won’t no [sic] what to do without him, he is such a big part of our family. And if he does go out family’s happiness will never be fulfil [sic].
As outlined in paragraph 60 above, XFKR’s three younger children provided letters to the Department expressing their wishes to have their father return home to them.
In his oral evidence, XFKR said that prior to being imprisoned he had an active role in his children’s lives. He would assist them with homework and would take them to the park. He says that he misses his children and that his deportation would have a negative effect on them.
In relation to the best interests of XFKR’s children, in the Statement of Facts, Issues and Contentions lodged on behalf of XFKR dated 20 October 2017 (A1), it was submitted that:
24.Notwithstanding the ultimate decision not to revoke the visa cancellation, the delegate was satisfied that ‘… on balance, it is in the best interests of XFKR’s four minor children for the mandatory visa cancellation to be revoked so that they can continue to have close and personal contact with their father in Australia’.
25.The Tribunal now has further reason to reach the same conclusion, and to give it substantial further weight.
…
28.Second, the Tribunal should also consider the practical and economic hardship that the family now experiences, and will continue to experience without XFKR being able to provide for them, while Mrs [Z] struggles to get by as, in effect, a single mother with four children, and scarce prospects of improving their situation, especially given her minimal knowledge of English and lack of professional qualifications or experience.
29.XFKR’s children have expressed goals for their study and for their future after school, the achievement of which could be made harder in the absence of their father.
…
32.What happens to XFKR will inevitably have an impact on his children. If his visa remains cancelled then they will be left knowing that their father has been left imprisoned indefinitely in immigration detention, with no hope of freedom – save for return to the serious danger from which he fled and the continuous fear that he may be seriously harmed, persecuted or killed.
33.That knowledge would be a lasting, heavy and traumatic burden of grief for his children to live with into the future.
34.It is noted that the delegate also formed a view that ‘the children’s best interests can still be served’ if the whole family were to return to …
35.That is a surprising proposition. To do so would involve uprooting the children from Australia – the two youngest of whom have no memory of Burma and don’t even speak the language – and taking them to a place where XFKR may be seriously harmed and both parents would face the prospect of imprisonment for having illegally left the country and sought asylum. Any hope of a comfortable future for the children, or even a minimally safe and secure future, would be highly dubious.
36.That could not possibly be considered ‘in the best interests’ of children who are settled safely in Australia, and the very possibility of it occurring would also be a factor weighing in favour of the revocation of XFKR’s visa cancellation.

In response, Counsel for the Minister in a Statement of Facts, Issues and Contentions dated 3 November 2017 (R2) contended that:
36.The applicant has four minor children and the respondent concedes, as did the delegate, that it is in their interests for the cancellation decision to be revoked.
37.Nevertheless, this is a difficult consideration to assess given the extremely detrimental effect the applicant’s offending has had upon his children. The offences which were committed either against his children, or against their mother in their presence, would clearly have had a deleterious effect upon their well-being. There is evidence to suggest the children required counselling, a family violence intervention order was put in place and concerns were expressed by the Department of Health and Human Services in relation to their safety.
38.The respondent also notes the following concerns expressed by Judge Gamble:
The continuing support that you receive from your wife and children is a relevant matter in mitigation, as it affects your prospects of rehabilitation. But the forgiveness by a victim can, as in this case, be a very vexed issue. None of these victims have acknowledged the seriousness of this offending or its effects on them. In so saying, I am not in any way being critical of the four children. But, the observations made by your wife are surprising to say the least and suggest very strongly, that she, like you, are either unwilling or unable to acknowledge the level of seriousness involved in this offending. There is a real need to tread very carefully when considering this matter. As was relevantly noted by Neave J in R v Hester, even in cases where there is evidence of forgiveness of the victim of domestic violence, that evidence should be treated with caution. [G8, p41]
39.Of course, if the applicant returns to drinking and commits further offences needless to say the effect upon the children would be serious and obviously not in their best interests. The respondent notes that there remains a risk of this occurring. Whilst the applicant has expressed remorse and provided evidence of undertaking relevant rehabilitation courses, his intention is to return to the family home. There is no evidence of any tangible protections which might be put in place to ensure the safety of the children.
40.The respondent has significant concerns in respect of the welfare of the children should the applicant re-offend. Nevertheless, on balance and not without a considerable degree of reservation, the respondent accepts that their best interests lie with revocation of the cancellation decision.
In his closing submissions, Mr Gerrard for the Minister contended that, although the best interests of XFKR’s children may well be a consideration that weighs in favour of setting aside the decision to cancel his visa, this consideration is outweighed by the other primary considerations – in particular, the protection of the Australian community from harm and the expectations of the Australian community.
The Tribunal agrees. The Tribunal is mindful of XFKR’s conduct and the guidance provided in subparagraphs (g) and (h) of paragraph 13.2(4) of Direction No. 65. The Tribunal finds that given the undeniable negative effect of XFKR’s offending on his children it is inclined to give less weight to this consideration. The Tribunal has also found that in the event XFKR is unable to abstain from using alcohol and fails to address his issues around domestic violence, his children risk further harm.
Based on the evidence presented, the Tribunal accepts that it is in the best interests of XFKR’s children for the decision to cancel XFKR’s visa be set aside and XFKR’s visa to be reinstated and that this conclusion weighs in XFKR’s favour. However, this consideration is tempered by the effect that XFKR’s offending has had on his children, which lessens its weight. Overall, and in any event, this consideration in his favour does not outweigh the nature and seriousness of XFKR’s crime and the risk, which is significant, to the Australian community and his family should XFKR reoffend.
(iii) Expectations of the Australian community
The third consideration listed in Direction No. 65 refers to the expectations of the Australian community. In this regard, paragraph 13.3(1) of Direction No. 65 states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to cancel the visa held by such a person. Visa cancellation 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 continue to hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
In relation to the expectations of the Australian community, the Tribunal notes submissions made on XFKR’s behalf in a Statement of Facts, Issues and Contentions dated 20 October 2017 (A1 at 8 and 9) as follows:
38.Other Tribunal members have assumed, for present purposes, that the ‘Australian community’ would expect ‘that the Act would be administered in a fair and humane way’ and that its expectations should be viewed ‘from the point of view of reasonable members of the community who hold middle-of-the-road views as to migration issues and who do not hold extreme views one way or another’.
39.Another important assumption is that the expectations of the ‘Australian community’ would be informed by, and based upon, all of the relevant facts about the individual.
40.Much of what can be said about ‘the expectations of the Australian community’ is already reflected in the more practical and concrete considerations set out elsewhere in the Ministerial Direction.
41.To the extent that it adds anything to the enquiry, the following can reasonably be considered relevant ‘expectations’ that the ‘Australian community’ would have:
a. The very existence of the discretion in s 501CA(4) reflects the expectation that some people whose visas have been cancelled should, in light of their individual circumstances, be able to remain in Australia.
b. It places a very high value on families as the fundamental group unit in society, and especially on the interests and wishes of children, and expects that to be a ‘primary consideration’ in a decision of this kind.
c. It would expect that the punitive consequences to XFKR for his past criminal actions are fully encapsulated and discharged by the judicial sentence imposed for those actions, which he has already served, and that people who have served their sentence should not be further punished.
d. It would expect that people whose visas are cancelled will then re-establish themselves in another country – this expectation implicitly underlies the Ministerial Direction.
In relation to this issue, the Minister contended as follows (R1 at 13);
42.Whilst the Australia community may well have a greater tolerance for persons who arrive with traumatic experiences, there are limits to that tolerance. The applicant has committed violent offences which the Australian community would view as particularly repugnant, only shortly after arrival in this country. The respondent again refers to the stated principles in paragraph 6.3 of Direction No 65 and in particular the principles that the Australian community expects the Australian Government to cancel the visas of non-citizens who commit serious crimes and non-citizens who commit serious crimes should generally expect to forfeit the privilege of staying in Australia.
In assessing the expectations of the Australian community, regard should also be had to the principles in paragraph 6.3 of the Direction as they reflect community values and standards (para 6.2(1)). Further, in Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999, Deputy President Forgie noted (at [72]) that any assessment of the expectations of the Australian community is “ultimately a matter for judgment” and “the facts of which that judgment is made must be made on the basis of facts established by the evidence”.
The Tribunal is of the view that women and children have the right to live without fear of violence and that the majority of Australians would find domestic violence to be a most disturbing crime with far reaching negative consequences. In the circumstances of this matter, the Tribunal considers that the expectations of the Australian community are that a non-citizen, such as XFKR, who was convicted of very serious domestic violence offences, who has shown disregard for the laws of Australia and who has shown a lack of insight into the nature and consequences of his conduct should expect to lose his visa.
OTHER CONSIDERATIONS
Paragraph 14(1) of Direction No 65 states:
14       Other considerations – visa applicants
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)       International non-refoulement obligations;
(b)       Strength, nature and duration of ties;
(c)       Impact on Australian business interests;
(d)       Impact on victims;
(e)Extent of impediments if removed.
It is agreed that in relation to this matter, (a), (b) and (e) are relevant. It is noted that the integers in paragraph 14(1) are not closed. Based on the evidence currently available, another consideration that may be relevant in the present case relates to the risk of permanent detention in Australia should XFKR’s visa remain cancelled.
International non-refoulement obligations
Direction No. 65 provides as follows in relation to Australia’s non-refoulement obligations:
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2)The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5)If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48 A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).
(6)In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
Counsel for both parties were recalled for further closing submissions after the High Court handed down its decision in Minister for Immigration and Border Protection and BCR 16 [2017] HCA Trans 240 on 17 November 2017. It was agreed by both parties that the High Court has now upheld the decision of the Full Court of the Federal Court in BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 (BCR16). As such, following the principles outlined by the Full Federal Court, it was agreed that the Tribunal must now assess any international non-refoulement obligations that might arise if XFKR returned to Myanmar. This is so despite the fact that an applicant can apply for a protection visa and regardless of whether an applicant specifically frames his risk of harm as a non-refoulement issue.
In assessing any non-refoulement obligations, however, the Full Court has previously noted that the level of analysis required by the Tribunal is less than that required in assessing a claim for a Protection visa. Relevantly, in Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 in relation to a s 501 refusal, the Court found (at [28]):
An exercise of the statutory power conferred by s 501 of the Migration Act does not require the same analysis to be undertaken as would be required if an application for a protection visa is made and s 36 is invoked. Nor is that analysis to be undertaken even where the Minister does take into account Australia’s non-refoulement obligations.
Nor, it should be stressed, could the Tribunal engage in the sort of evidentiary analysis that would be undertaken if a Protection visa claim were examined elsewhere by those specifically charged with analysing a Protection visa claim. Normally, when a protection visa application is determined, the decision maker has access to an extensive interview with the applicant and, importantly, a detailed International Treaties Obligations Assessment (“ITOA”). That is not the case here. Before this Tribunal, in an expedited hearing that requires the Tribunal to make an assessment in a very short period of time (here, less than four days from final oral submissions), the Tribunal does not have the benefit of an ITOA or the full (and much needed) body of evidence one would expect (and which an applicant deserves) in a protection visa hearing.
In relation to this matter, the only information before the Tribunal regarding XFKR’s country of origin was a recent report from DFAT (R3) in relation to the country information of Myanmar (“Myanmar Report”) provided by counsel for the Respondent at very late notice and dated (and at best sketchy) information from XFKR himself (much of which formed the basis of his original refugee claim). No recent country information was provided by XFKR’s counsel and counsel objected to the use of the tendered DFAT country information on the basis that it had been submitted very late in the piece. While the Tribunal has some sympathy for counsel in relation to the late filing of otherwise relevant country information, the Tribunal was somewhat perplexed at counsel for XFKR’s suggestion that applicants in proceedings of this sort are not required to provide assistance to the Tribunal in relation to the assessment of any harm that an applicant might face if deported. The Tribunal rejects this approach. Nor does the Tribunal accept that an experienced advocate briefed by one of this country’s leading and most respected advocacy groups would be caught off guard by the provision of updated DFAT country information. One would expect all advocates, whether they are representing an applicant or the Minister, to be prepared to assist the Tribunal in determining whether an applicant will be harmed if deported. At a minimum, the relevant DFAT country information is a starting point for an analysis of that sort.
The Tribunal can only assess the often limited evidence before it in determining any risk of harm to XFKR. Here, that evidence was indeed scant. This is less than ideal given the possible negative consequences for an applicant in this context.
Here, XFKR claims, in relation to the harm he believes he will face if he is returned to Myanmar, that he would be immediately imprisoned upon his arrival. He says that he belongs to an ethnic and religious minority and that when he lived in Myanmar, the police exposed him as a teacher of his minority language in a secret school, which is forbidden. As a result, he and his family were forced to flee Myanmar in 2008.
The Tribunal has no reason to doubt this evidence.
XFKR also stated in his representations to the Minister that his life will be in danger if returned to Myanmar and if arrested he may also face the prospect of sentenced to hard labour (G5 at 17).
At the hearing of this matter, the Tribunal asked XFKR whether, if returned to Myanmar, it was likely police would pursue him for teaching his minority language 10 years ago. XFKR said that he feared that he would be imprisoned for having illegally left the country and having sought asylum. He said that the Myanmar authorities do not tolerate those who have claimed asylum outside the country.
It was not disputed by the parties that XFKR is a refugee. The Tribunal accepts that XFKR is legitimately concerned about what will happen to him if he is returned to Myanmar.
The Tribunal notes in the extracts from XFKR’s refugee file, the assessor of XFKR’s refugee status relevantly wrote in their report dated October 2012:
I find that [XFKR] cannot be returned safely to Myanmar at this time, and there is no evidence to indicate that he can be resettled in another country.
The Tribunal has reviewed the available country information in relation to the situation that those who are from ethnic and religious minorities and those who have sought asylum in other countries face in Myanmar. Relevantly, the Myanmar report highlights that:
CHRISTIANS
3.34Three major ethnic groups in Myanmar have significant Christian populations; the Chin, Kachin, and Kayin (also known as Karen). Each of these groups is comprised of numerous smaller ethnic sub-groups. Each also has a home state in which a substantial proportion of its population live, but large numbers of each group live elsewhere in the country, particularly in major cities or in states or regions bordering their own state. In general, Christians are tolerated in Myanmar. Major Christian festivals, including Christmas and Easter, are national holidays and are observed in most parts of the country.
3.35Christians can face low levels of official and societal discrimination in Myanmar. For example, Christians are rarely promoted to senior levels in the government, military or police. Human rights groups in Myanmar told DFAT that Christians find it difficult to obtain land on which to build new churches (although building new churches on existing land is generally possible), and there are reports of isolated attacks on new or repaired church buildings. Credible sources also told DFAT that hard-line Buddhist groups occasionally build pagodas on church property.
…
TREATMENT OF RETURNEES
5.33Myanmar’s Ministry of Labour, Immigration and Population is responsible for conducting interviews of returnees. DFAT is not aware of how often these interviews are conducted and what, if any, information is passed to government security agencies.
5.34In the past, the government has sought to exercise control over the travel and residence of high-profile opposition figures. This has abated following the extensive democratic reforms carried out since 2011. On 17 August 2011 then-President Thein Sein announced that Myanmar would welcome the return of exiles that had fled the country during military rule. Former political prisoners and exiled activists are now typically able to return safely to Myanmar. In preparation for this report, DFAT spoke with a number of political and human rights activists who had been imprisoned or exiled from Myanmar during the period of military rule; these people had been able to freely return to Myanmar in recent years, and have remained politically active. People who are known to have actively and openly criticised the military may face a higher level of scrutiny than other political activists such as LGBTI or democracy activists.
5.35No reliable data are available regarding the numbers of voluntary and involuntary returnees to Myanmar. Voluntary returnees that receive assistance from the International Organisation for Migration (IOM) receive short- and medium-term reintegration assistance, including (where possible) vocational training assistance and medical care.
5.36Returnees to Myanmar who departed the country illegally are technically subject to up to five years imprisonment for having illegally crossed a border. DFAT understands that this provision has not been enforced in recent years. For example, in March 2015 a large number of migrant workers were returned to Myanmar from Malaysia, some of whom had departed Myanmar illegally. The Myanmar Government reached an agreement with the Malaysian Government to allow their return, and the workers gave their consent. The workers were processed in Yangon, and the government provided them with 10,000 Myanmar Kyat (approximately USD 8) to cover transportation costs back to their homes.

Based on the limited evidence before it, the Tribunal finds that XFKR faces at least some risk of harm if returned to Myanmar because he departed the country illegally and is technically subject to up to five years imprisonment for having illegally crossed a border (R3). The Tribunal also holds some concerns about the safety of teachers of his minority language. Myanmar is a country in turmoil. The country information available to the Tribunal is now also arguably dated but on the evidence available it is at least arguable that non-refoulement concerns do arise here.
During the hearing, counsel for XFKR stressed that any affirmation of the decision under review would expose XFKR to either being removed from Australia (regardless of any finding that XFKR was owed non-refoulement obligations) or indefinitely detained in immigration detention. Accordingly, it was submitted, the Tribunal should find that these considerations outweigh all other considerations, and, as such, the Tribunal should revoke the decision to cancel his visa.
Counsel for the Minister, on the other hand, stressed that XFKR could apply for a protection visa, that the Minister would not return any applicant to whom a non-refoulement obligation was owed and argued that, in the circumstances of this case, permanent detention should not be assumed.
The Tribunal addresses these submissions below.
XFKR arrived in Australia as the holder of a Refugee visa. He has not previously had a visa refused or cancelled under section 501, 501A or 501B of the Migration Act. He is, accordingly, able to apply for a Protection visa in accordance with s 501E(2) of the Migration Act.
A decision to affirm the delegate’s decision not to revoke the cancelation of XFKR’s visa will mean that XFKR’s visa will remain cancelled pursuant to s 501(3A) of the Migration Act. Should this occur, XFKR would remain an unlawful non-citizen in the relevant migration zone.
In accordance with s 189 of the Migration Act, XFKR would initially be detained in immigration detention. It is not disputed that he could, at this time, apply for a protection visa and, arguably, a bridging visa. It is noted in this context that any character findings made in relation to XFKR in these proceedings would not negate any protection claims he may have from being assessed. This is so because of the operation of Direction No. 75 – Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2C)(b) – Part 2, which specifically precludes character findings arising from a criminal deportation finding being assessed first (and instead requires any protection claims to be assessed first).
But would XFKR be deported before any such assessment could be made?
Section 198 of the Migration Act relevantly provides:
(2B)An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
(a)a delegate of the Minister has cancelled a visa of the non-citizen under subsection 501(3A); and
(b)since the delegate's decision, the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; and
(c)in a case where the non-citizen has been invited, in accordance with section 501CA, to make representations to the Minister about revocation of the delegate's decision--either:
(i) the non-citizen has not made representations in accordance with the invitation and the period for making representations has ended; or
(ii) the non-citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate's decision.
The introduction of s 197C into the Migration Act is of significance in cases such as this. It provides:
(1) For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(2) An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.
The Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 explains the purpose of adding s 197C to the Migration Act. The Explanatory Memorandum relevantly states:
1132. The effect of new section 197C is to make it clear that in order to exercise the removal powers under section 198 of the Migration Act an officer is not bound to consider whether or not a person who is subject to removal engages Australia’s non-refoulement obligations before removing that person.
...
The Minister's personal power under section 195A provides that the Minister has a non-compellable power to grant a visa to a person who is in immigration detention where the Minister thinks that it is in the public interest to do so... In these circumstances, if the Minister thinks that it is in the public interest to do so, the Minister may grant a visa to a person to ensure that the person is not removed in breach of Australia's non-refoulement obligations.
Unfortunately, BCR16 does not elaborate in relation to the effect of s 197C of the Migration Act, stating simply (at [59]) that “the scope and effect of s 197C can be left for another day”. However, Bromberg and Mortimer JJ did state (at [57]) that the text of the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (which inserted s 197C) at [1132]-[1146] is mostly a policy statement rather than explanatory of the proper construction of s 197C.
Before this Tribunal, counsel for XFKR in a Statement of Issues Facts and Contentions dated 20 October 2017, (A1 at 12) highlighted:
Section 197C notwithstanding, the Ministerial Direction stipulates in terms that ‘Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations’, a commitment that is also reflected in the Explanatory Memorandum relating to the enactment of s 197C itself.
This was confirmed in oral submissions made by Counsel for the Minister, who reiterated that it is not the Minister’s intention to breach Australia’s treaty obligations and re-foule someone in circumstances where they have been identified to be at risk of harm if returned to their country of origin.
This Tribunal accepts this to be the case and finds that any concern that arises here in relation to XFKR being deported if the decision to cancel his visa is not revoked is minimised by a clear commitment from the Australian government not to re-foule anyone who is owed protection once that need for protection is properly assessed. In this context, it is noted that XFKR can now apply for a protection visa. This too goes a considerable way towards addressing any concerns the Tribunal might have about the risk of harm should the Tribunal not revoke the decision to cancel his visa.
But what then would this mean in relation to the risk of permanent detention – an arguably unacceptable result in any circumstance. Without a valid visa, XFKR would initially be detained. But for how long?
Section 196 of the Migration Act deals with the duration of detention and provides that:
(1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until:
(a)he or she is removed from Australia under section 198 or 199; or
(aa)an officer begins to deal with the non-citizen under subsection 198AD(3); or
(b) he or she is deported under section 200; or
(c) he or she is granted a visa.
In relation to the possibility of indefinite detention, the Tribunal notes the comments made in Ayoub as follows:
[18]… it may be accepted that the Minister is obliged when considering the plight of a refugee in immigration detention to take into account the “consequences” of his decision: NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38 at [17] ; (2014) 220 FCR 1 at 6 per Allsop CJ and Katzmann J. In reaching the same conclusion, Buchanan J there said:
[177] … it is sufficiently apparent, in my view, that the Minister gave no thought to, or alternatively regarded as irrelevant or not significant, that the applicant would, as both a legal and practical consequence of the decision, face the prospect of indefinite detention if a visa was refused.
See also his Honour’s comments at [164]–[166].
[19]NBMZ, however, is no authority for the more generally-expressed proposition that the Minister must take into account when exercising the discretion conferred by s 501 the prospect that a claimant may be exposed to “indefinite detention” at some future point of time dependent both upon possible future applications that may or may not be made and upon future, potentially adverse, exercises of the discretion. The task of the Minister in the present proceeding was to resolve the more confined question of the manner in which the discretion conferred by s 501 should have been exercised. Future exercises of discretion and statutory power are to be resolved when they arise. The fact that the prospect remains open to Mr Ayoub by reason of s 501E to make a future application for a protection visa perhaps provides some support for a conclusion that it is at that future point of time that the prospect of “indefinite detention” may have to be confronted.
[20] On no view of the facts of the present case could it be said that the “consequence” of the cancellation of Mr Ayoub’s visa pursuant to s 501 was “indefinite detention”. The “consequence” of the cancellation decision may well be his detention pursuant to s 189 of the Migration Act — but that “consequence” falls well short of “indefinite detention”. A comparable conclusion was reached by White J in Jaffarie v Director-General of Security [2014] FCAFC 102 at [126]–[133] ; (2014) 226 FCR 505 at 538–539.
In relation to the issue of indefinite detention, Bromberg and Mortimer JJ, in BCR16, examined Minister for Immigration and Border Protection v Le [2016] FCAFC 120 and relevantly stated:
84.… In Le at [58], the Full Court said this about the outcome in Cotterill, in the context of emphasising that none of the previous Full Court decisions suggested that “in exercising the power under s 501(2), the Minister must in every such case take into account the prospect of indefinite detention as an aspect of the legal consequences of such a decision” (emphasis in the original):
The facts in Cotterill do not suggest that there was any factual basis for the appellant in that case to make an application for a protection visa either in Australia or elsewhere. The prospect of his indefinite detention in Australia related to his ill-health and not to Australia’s non-refoulement obligations.
85Finally, the Full Court in Le considered AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105; 243 FCR 451, (Allsop CJ, Robertson and Griffiths JJ), which had been handed down after judgment in Le was reserved, and distinguished it because it did not involve the cancellation of a protection visa.
86. It is true that the Full Court in Le then said, at [60]:
To sum up, we do not consider that there is any material inconsistency in the Full Court decisions referred to above. These decisions illustrate the potential complexity of the issues. There is a potentially wide range of factual circumstances which can arise when consideration is being given to the exercise of the significant powers in s 501(1) and (2). Those factual circumstances may relate to the individual’s personal circumstances, which can themselves vary enormously. The matter is further complicated by the possibility that the individual’s legal status as an unlawful non- citizen (which necessarily flows from the cancellation decision and the operation of s 501F) might change because, for example, the person has a right to apply for another visa, including a protection visa. The consideration of any such subsequent protection visa application will require an assessment of Australia’s non-refoulement obligations and the prospects of the person being detained indefinitely. Another relevant factor is whether, at the time of considering the exercise of the powers in s 501(1) or s 501(2), there is any material which is relevant to the likelihood of the Minister exercising his or her personal powers under provisions such as s 195A to grant the person a visa (even in the absence of a visa application) which would have the effect of bringing to an end that person’s detention and displace the duty to remove the person under s 198. Another relevant matter is the operation of s 197C of the Migration Act, which makes plain that Australia’s non-refoulement obligations are not a relevant consideration when an officer comes to discharge the statutory duty imposed by s 198 to remove an unlawful non-citizen as soon as reasonably practicable. Necessarily, therefore, to the extent that that issue is material it must be addressed at an earlier stage in the decision-making process.
87The statement in the middle of that paragraph (“[t]he consideration of any such subsequent protection visa application will require an assessment of Australia’s non-refoulement obligations and the prospects of the person being detained indefinitely”) must be read in the context of the entire paragraph. Arguments such as those put in this appeal were not put to the Full Court in Le, and their Honours’ obiter use of the phrase “will require an assessment” should be understood in that light.
88Further, the context of NBMZ and the cases to which the Full Court referred in Le was whether the exercise of a discretionary power (refusal or cancellation of a visa under s 501(1) or (2)) was conditioned by a mandatory consideration: namely, the legal consequences (and, at least per North J at [107] in Cotterill, the “practical” consequences) for a particular person of exercising the discretion to refuse or cancel a visa. Indefinite detention as a legal consequence was identified, in the particular case, as a real possibility and thus formed part of the relevant consideration.
89The possibility, in some cases, of a further visa application in the form of a protection visa application was raised in the passage extracted from Le at [88] above as a factual circumstance which, in a given case, may affect whether and how the spectre of indefinite detention is to be taken into account as a “mandatory” relevant consideration.
It is clear here that it remains open for XFKR to apply for a protection visa. This goes a considerable way towards addressing any concerns that XFKR will be permanently detained if the Tribunal does not revoke the decision to cancel his visa. Permanent detention is not a “given” here as other avenues are indeed open. These include an application for a protection visa and a bridging visa pending resolution of XFKR’s protection visa application.
Overall, the Tribunal does accept that non-refoulement obligations do arise here and that, accordingly, there is at least some prospect that, at some point in the future, XFKR may face permanent detention. That is not, however, a given and it cannot be determined here on limited evidence whether or not that will indeed occur. It is, however, a relevant consideration and concern.
The question the Tribunal needs to ask here, however, is whether this finding in relation to what is an “other” or “secondary” consideration outweighs the Tribunal’s findings in relation to the primary considerations detailed above.
The Tribunal finds that these findings do not outweigh the primary considerations outlined above. The Tribunal finds that, on the limited evidence before it, XFKR may face harm if returned to Myanmar. He may also equally face hardship if indefinitely detained at some undetermined point in the future. The evidence in support of these findings is, however, scant.
Overall, the Tribunal finds these secondary considerations are tempered by:
·a government commitment not to return an applicant who faces harm once it has been determined that a non-refoulement obligation exists; and
·the prospect of a protection visa application that would allow for a full and detailed analysis of XFKR’s protection claims and which arguably limits the risk of permanent detention.
The Tribunal needs to weigh any concerns it does have in relation to refoulement (which may not occur on the Minister’s statements) and permanent detention (which, again, is not a given on the evidence here because other options still exist) with the very strong concerns outlined above in relation to the seriousness of XFKR’s crimes, the risk of further offending and what this would mean for the Australian community – findings that were based on clear and unequivocal evidence.
Overall, the Tribunal does not accept that these secondary considerations outweigh the primary considerations detailed above. Noting that the primary considerations in Direction No. 65 (based here on very clear evidence) are normally given greater weight than the other considerations (here, based on less than complete evidence), the Tribunal finds that the primary considerations here clearly outweigh any secondary considerations.
None of the above should, however, be seen as a comment by the Tribunal as to the prospects of any future protection visa application by XFKR.
Strength, nature and duration of ties
Paragraph 14.2(1) of Direction No 65 requires the Tribunal to consider XFKR’s ties to Australia as follows:
14.2     Strength, nature and duration of ties
(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, 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, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
In relation to this issue, the Tribunal notes that in the Statement of Facts, Issues and Contentions lodged on behalf of XFKR dated 20 October 2017 (A1 at 12 and 13), it was contended that:
51.The impact that a decision not to revoke XFKR’s visa cancellation would have on [wife] is, incongruously in this case, not among the ‘primary considerations’ set out in the Ministerial Direction. However, it is submitted that it should also be given quite substantial (albeit secondary) weight. By no fault of hers, she would be permanently separated from her husband and left with the anxiety, guilt and practical struggles she is already facing in raising four children on her own.
52.Lastly, the positive benefit that XFKR has previously provided, and would continue to provide in the future for the Australian community and in particular within his local … community, through his voluntary activities and his intended future career as a social worker, is of relatively minor weight as compared to the other matters put forward in support of revocation, but nonetheless a further relevant factor to weigh in the Tribunal’s discretion.
In response counsel for the Minister contended that:
56.In assessing the strength, nature and duration of ties Direction no. 65 requires decision-makers to have regard to the following:
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, including the effect of non-revocation on the non-citizens immediate family in Australia (where those family members are Australian citizens who have a right to remain in Australia indefinitely).
57. The applicant has been ordinarily resident in Australia since arriving in 2013. He has provided evidence of undertaking university studies and engagement with the local community. His wife and children reside in Australia. Balanced against this, though, is the applicant’s history of violent offending and alcohol abuse. His criminal record clearly does not reflect a positive contribution to the Australian community. Furthermore, his offending began shortly after his arrival in Australia.
58. The respondent concedes that the applicant has some ties to Australia, albeit not to the extent that they should outweigh the protection of the Australian community.

In his statutory declaration dated 19 October 2017 (A2), XFKR relevantly outlined the strength and nature of his ties with Australia as follows:
24.After arriving in Australia, I joined the … Community of Victoria, and the committee appointed me as Advisor. I have been actively involved with the committee's activities. We have contact with the Migrant Information Centre, teaching people things like what to do in a bushfire or saving an animal's life. We also help people learn about using the bank and saving money. I am also good at cultural dance, and so I teach. A lot of people do not know about … culture or dance. I want people to have education, because without it, our nation will be lost.
25.I was also a member of … Church, and was previously the church's Secretary. There was focus on our youth to growing up with a good Christian faith and having good behaviour for the future to serve the community and country. I am looking forward to continue where I left as a member of … Church, if I am allowed to return to the community.
26.If I am released from immigration detention, I want to continue my study and finish my education. I know that without good English and study, I can't do anything. This is my first aim and ambition in my life. After finishing my education, I want to work with our … community, for future better relationships within my community. I really like to help people in the community.
XFKR and his wife have been married for 16 years. They have four children, all of whom live in Australia. He also has relatives here and has friends associated with his ethnic community and his church. He is active in his community through his church and has a group of friends who support him and speak of the positive impact he has had in their lives.
On the evidence, the Tribunal finds that XFKR has contributed to some degree to the Australian community. The Tribunal also accepts that XFKR’s wife and children will be negatively affected if the Tribunal does not revoke the decision to cancel his visa. All of this weighs in favour of revoking the decision to revoke XFKR’s visa. Balanced against this, however, is XFKR’s history of domestic violence. As correctly stated by counsel for the Minister, XFKR’s criminal record does not reflect a positive contribution to the Australian community. While the Tribunal finds that XFKR does have ties to the Australian community, the Tribunal is not convinced on the balance that the nature and strength of his ties with Australia outweigh the primary considerations referred to above
Extent of impediments if removed
Paragraph 14.5(1) of Direction No 65 requires the Tribunal to consider the extent of any impediments if XFKR is removed from Australia as follows:
14.5Extent of impediments if removed
(1) 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.
This issue was not formally raised in the Statement of Facts, Issues and Contentions lodged on behalf of XFKR.
At the hearing of this matter, Mr Gerrard for the Minister asked XFKR about the obstacles he will face if returned to his village in Myanmar. XFKR explained that his mother still lives there and, although he cannot contact her directly, he can do so through his friends who also still live there. He said that it would be very difficult to get sufficient employment in his village and that he would face significant financial hardship if returned.
In relation to this issue, counsel for the Minster contended in a Statement of Facts, Issues and Contentions dated 3 November 2017 (R2) that:
62.The respondent accepts that the applicant’s transition back to Myanmar is likely to be difficult. However, the applicant speaks the language and is familiar with the culture. He would have equal access to health services as other citizens, although it is accepted that he will face challenges in this regard. He could also utilise his employment skills to find a job. The difficulties the applicant would face do not outweigh the other factors set out in the Direction
In relation to the requirements of paragraph 14.5(1) of Direction No. 65, the Tribunal accepts that XFKR may face impediments if removed to Myanmar. It is clear that life will be challenging for him if he is returned to Myanmar, given that he has not lived there since 2008. He will face very limited job prospects and has limited family support in Myanmar.
The Tribunal also notes and repeats its comments above in relation the risk of possible physical harm for XFKR if he is deported. As above, the Tribunal finds that any risk of harm is minimised by the fact that XFKR can apply for a protection visa and will not be returned if he is found to be owed protection.
Overall, although the Tribunal considers that this consideration weighs in XFKR’s favour, this consideration does not outweigh any of the primary considerations outlined above.
CONCLUSION
On 13 September 2016, XFKR was sentenced to 20 months’ imprisonment for a range of domestic violence offences.
Having received a sentence of a term of imprisonment in excess of 12 months, XFKR has a “substantial criminal record” and does not, as a result, pass the character test in s 501(6) of the Migration Act. Further, as XFKR was serving a sentence of imprisonment on a full-time basis in a custodial institution, he was liable for mandatory cancellation of his visa pursuant to s 501(3A) of the Migration Act. His visa was mandatorily cancelled on 6 October 2016.
In determining whether there is any reason why the decision to cancel XFKR’s visa should be revoked, the Tribunal has attached significant weight to the seriousness of XFKR’s offending. As outlined above, his crimes of violence, committed against his wife and young children, are very serious.
In this regard, the Tribunal has taken account of the following factors provided in paragraph 13.1.1 of Direction No. 65:
(a)the sentence imposed by the courts for crimes – noting that in XFKR’s case a custodial sentence was ordered based on the seriousness of his offending despite an early guilty plea and despite the fact that he had no prior offences; and
(b)violent crimes are viewed seriously – noting that XFKR was convicted of a particularly violent crime that left his wife and children terrified and traumatised.
In these circumstances, XFKR should, as per paragraph 6.1 of Direction No. 65, expect to be denied the privilege of staying in Australia.
The Tribunal also finds that there remains an unacceptable risk that XFKR may engage in further criminal conduct if he remains in Australia and that the Australian community will, as a consequence, be at risk. In making this assessment the Tribunal has considered the nature of the harm to individuals or the Australian community should XFKR engage in further criminal or other serious conduct and the likelihood of further criminal or other serious conduct, taking into account relevant information and evidence on the risk of XFKR re-offending.
XFKR’s prospects of avoiding further offending are highly dependent on his ability to deal with his alcohol abuse problems and his attitude towards women. On the evidence, the Tribunal finds that XFKR has failed to fully recognise the gravity of his offending or the reasons for it. Despite some rehabilitation efforts, XFKR has not been tested in the community and fails to understand the reasons for, and harms of, domestic violence. Overall, the Tribunal finds that there is a risk that XFKR will engage in violent behaviour if released into the community. Given the nature of his crime this is an unacceptable risk to the community and weighs heavily against any revocation of the decision to revoke XFKR’s visa.
Given the nature of the crime committed and the prospect of future offending, the Tribunal is also of the view that the Australian community would expect that XFKR’s visa would remain cancelled. This is despite the difficulties his family will face if he is returned to Myanmar.
There are considerations that weigh in favour of revocation of the decision to cancel XFKR’s visa. These include his ties to the Australian community, the best interests of his children and the extent of the impediments he may face if returned to Myanmar. The Tribunal also finds, on the rather limited evidence before it, that Australia may owe non-refoulement obligations to XFKR.
The Tribunal finds, however, that these countervailing considerations do not, on balance, outweigh the other primary considerations referred to above. The Tribunal notes that any concerns XFKR has in relation to non-refoulement obligations or risks of harm he may face if returned to Myanmar can be addressed via a protection visa application and the detailed review that occurs when an application of that sort is assessed. In this context, any concerns that arise in relation to refoulement and the risk of mandatory detention are clearly outweighed by the primary considerations detailed above – findings which are based on the unequivocal evidence before the Tribunal.
Overall, the Tribunal finds that having regard to all of the primary considerations and other relevant considerations required to be taken into account by the Tribunal under Direction No. 65 the correct and preferable decision is to refuse to revoke the cancellation of XFKR’s visa.

I certify that the preceding 153 (one hundred and fifty three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall

................[sgd].......................................................
Administrative Assistant
Dated: 29 November 2017

Dates of hearing: 10 and 23 November 2017

Counsel for the Applicant: Mr D Robinson

Representative of the Applicant: Ms K Bones

Solicitors for the Applicant: Refugee Legal

Representative of the Respondent: Mr A Gerrard

Solicitors for the Respondent: Australian Government Solicitor

Court	Date	Offence	Court Result
Melbourne County Court	13.09.2016	Make threat to kill	12 months imprisonment
		Make threat to kill	6 months imprisonment. 4 mounts of sentence concurrent
		Intentionally cause injury	6 months imprisonment concurrent
		Unlawful assault common law assault, assault with weapon (4 charges)	3 months imprisonment on each count. 2 months of each count concurrent and concurrent.
		Common law assault	2 months imprisonment concurrent
		Assault with weapon, common law assault	1 month imprisonment on each count concurrent and concurrent

Dates of hearing:	10 and 23 November 2017
Counsel for the Applicant:	Mr D Robinson
Representative of the Applicant:	Ms K Bones
Solicitors for the Applicant:	Refugee Legal
Representative of the Respondent:	Mr A Gerrard
Solicitors for the Respondent:	Australian Government Solicitor