XLML and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

XLML and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1657 (9 June 2020)
Division: GENERAL DIVISION
File Number(s): 2020/1580
Re:XLML
APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs And
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:9 June 2020
Place:Brisbane

The decision under review is affirmed.
................................[SGD].......................................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
Children, Youth and Families Act 2005 (Vic)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Mendoza and Minister for Immigration and Border Protection [2018] AATA 686
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Contents
Reasons for Decision
Introduction and Background
Issues
Does the Applicant pass the Character Test?
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
Primary Consideration A – Protection of the Australian Community
The Nature and Seriousness of the Applicant’s Conduct to Date
Application of the Factors in Paragraph 13.1.1(1) of the Direction
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
The Nature of the Harm to Individuals or the Australian Community were the Applicant to engage in further criminal or other serious conduct
The Likelihood of the Non-citizen Engaging in Further Criminal or Other Serious Conduct
Conclusion: Primary Consideration A
Primary Consideration B: The Best Interests of Minor Children in Australia
The Applicant’s Written Evidence
Written Submissions of the Applicant
The Applicant’s Evidence in Cross-examination
Application of Factors in Paragraph 13.2(4) of the Direction
Conclusion: Primary Consideration B
Primary Consideration C: The Expectations of the Australian Community
The Relevant Paragraphs in the Direction
Factual Circumstances Relevant to this Primary Consideration C
The Evolution of the Australian Community’s “Expectations”
The Applicant’s Contentions
Analysis – Allocation of Weight to this Primary Consideration C
Conclusion: Primary Consideration C
Other Considerations
(a) International non-refoulement obligations
(b) Strength, nature and duration of ties
(c) Impact on Australian business interests
(d) Impact on victims
(e) Extent of impediments if removed
Conclusion
Decision
Exhibit list
REASONS FOR DECISION
Senior Member Theodore Tavoularis
9 June 2020

INTRODUCTION AND BACKGROUND

XLML (“the Applicant”) is a 37 year old citizen of New Zealand.[1] Movement records indicate that the Applicant first arrived in Australia on 8 February 2008 and has left Australia on numerous occasions with his most recent arrival date being 7 December 2014.[2] His movement history is as follows:
- Initial arrival: 8 February 2008;
- Departure: 5 September 2011;
- Return to Australia: 23 September 2011;
- Departure: 11 July 2012;
- Return to Australia: 17 July 2012;
- Departure: 4 December 2014;
- Return to Australia: 7 December 2014.
He resided in Australia on a Class TY Subclass 444 Special Category (Temporary) Visa (“the Visa”).[3]
[3] Ibid, G2, page 15.
The Applicant has, in terms of his age and the number of offences he has committed, a relatively short offending history. That history (in terms of appearances in courts for sentencing in Australia) spans the period February 2016 to May 2019. He also has a brief offending history in New Zealand relating to a traffic offence for which he was convicted in September 2002. Briefly and chronologically stated, his offending history comprises:
·     Palmerston North District Court, 27 September 2002 (for offending that occurred on 11 August 2002) – convicted for “Operated A Vehicle Carelessly” – convicted and sentenced: Fine - $1,500;
·     Werribee Magistrates Court, 15 February 2016 – for “Criminal damage (intent damage/destroy); Contravene family violence safety notice” – without conviction, adjourned to 14/02/2017 and ordered to pay $500 to the Court Fund;
·     Melbourne County Court, 14 December 2018 – convicted for (1) “Aggravated burglary”; (2) “Theft”; (3) “Contravention of family violence intervention order intending to cause harm/fear”; and (4) “Assault with weapon” – convicted and sentenced: “Aggregate 30 months imprisonment”;[4] and
·     Melbourne Magistrates Court, 14 May 2019 – convicted for “False imprisonment (common law)” – convicted and sentenced: Fine - $2,000.
[4] With a non-parole period of 15 months, see sentencing remarks, G2, page 40, paragraph [51].
During the hearing before me, one would have expected the Applicant’s non-parole period in custody to have concluded and for him to have then been taken into immigration detention. However, while there is nothing determinative in the following observation, it transpired that the Applicant was still in criminal custody at the Ravenhall Correctional Centre in Victoria.
While serving his term of imprisonment (i.e., criminal custody), a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister” or “the Respondent”), pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”), decided on 21 February 2019 to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test.[5]
[5] Exhibit G1, s 501 G Documents, G2, page 16, paragraph [1].
On 1 April 2019, the Minister’s Department received a letter from the Applicant (dated 13 March 2019) requesting revocation of the decision to mandatorily cancel his visa.[6] The delegate of the Minister decided on 6 March 2020, pursuant to s 501CA(4) of the Act not to revoke the cancellation of the subject visa.[7]
[6] Ibid, G2, pages 46-48; Exhibit R2, Respondent’s SFIC, page 4, paragraph [19].
[7] Ibid, G2, pages 15-29.
The Applicant lodged an application with this Tribunal on 18 March 2020 seeking a review of the abovementioned decision dated 6 March 2020 not to revoke the cancellation of his visa.[8] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.[9]
[8] Ibid, G1, pages 6-11.
[9] For the Tribunal to have jurisdiction to review the decision, the Applicant must also have lodged the application for review with the Tribunal within nine days after the day on which he or she received notification of the decision – see s 500(6B) of the Act.
The hearing of the instant application proceeded on 28 May 2020 and received oral evidence from the Applicant as well as from his father and former employer. The Tribunal also received written evidence. This written evidence was categorised into an exhibit list, a true and correct copy of which is attached hereto and marked “A”.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this sub-section provides that:
(4)       The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
There is no question that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[10]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[11]
[10] [2018] FCAFC 151.
[11] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·Whether the Applicant passes the character test; and
·Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[12] I will address each of these grounds in turn.
[12] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
In December 2018, the Applicant was convicted at the Melbourne County Court, Victoria, for “Aggravated burglary”, “Theft”, “Contravention of family violence intervention order intending to cause harm/fear” and “Assault with weapon”. He was sentenced to an aggregate term of imprisonment for 30 months. The sentencing court imposed a non-parole period of 15 months.[13]
[13] Exhibit G1, s 501 G Documents, G2, page 40.
As mentioned, the Applicant’s criminal history is relatively short in terms of the number of offences committed. The totality of custodial time imposed for his offending is 30 months. From the date of his final arrival in Australia (7 December 2014) until his removal from the Australian community on 14 December 2018 comprises a period of approximately four years. The 30 months of custodial time he received for the four offences in December 2018 comprises approximately 23% of his time in the general community of this country.[14]
[14] That is, the Applicant arrived in Australia in February 2008. He went into criminal custody in December 2018. This gives a total of approximately 130 months, from which I have deducted one month representing the approximate period of one month the Applicant has spent outside of Australia, according to his movement records.
In his written material, the Applicant did not deny his offending and said these things:
“…
5. The applicant concedes that he fails the character test, by reason of a sentence of imprisonment for 30 months,…The applicant accepts that this offending engages the statement of principle in Direction 79 that the government considers it to be “very serious”.”[15]
[15] Exhibit A1, Applicant’s SFIC, page 1.
At the hearing, the Applicant did not cavil with the contention that he did not pass the character test due to the application of s 501(7)(c) of the Act and its definition of “a substantial criminal record”. In submissions, his Counsel[16] said:
“…we accept that the applicant has engaged in some offending, including violent offending and that past offending can be probative of a future risk.“[17]
[16] Mr A Aleksov, Barrister-at-law; Counsel for the Applicant.
[17] See Transcript, 28 May 2020, page 29, lines 26-30.
As mentioned, the custodial sentence imposed on the Applicant involved early release on parole after serving a custodial period of 15 months. What matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served or are ordered to serve.[18]
[18] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416; See also s 501(7A) of the Act which relevantly provides: “(7A) Concurrent sentences For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms. Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.”
I am consequently satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) has application.[19] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:[20]
(1)…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.
[19] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[20] The Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
a)    Protection of the Australian community from criminal or other serious conduct;
b)    The best interests of minor children in Australia;
c)    Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a
non-exhaustive list in paragraph 14 of the Direction. These considerations are:
a)    International non-refoulement obligations;
b)    Strength, nature and duration of ties;
c)    Impact on Australian business interests;
d)    Impact on victims;
e)    Extent of impediments if removed.
While these further five considerations are noted as “other” considerations, they are not to be regarded as “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[21]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
[21] [2018] FCA 594 at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(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;
(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 women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(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;
(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;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(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 for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, this paragraph stipulates an expectation that those non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

In determining whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (b) that those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The totality of the Applicant’s offending and other serious conduct can be gleaned from the following documents[22] now before the Tribunal:
[22]    The following list includes documents directly relating to the Applicant’s offending as well as ancillary documents.
(a)his criminal history which appears in a document titled “Check Results Report” from the Criminal Intelligence Commission;[23]
[23]    Exhibit G1, s 501 G Documents, G2, pages 30-31.
(b)the Applicant’s offending history in New Zealand;[24]
(c)the Respondent’s Supplementary s 501 G Documents (numbered pages 171-956)[25] which contain:
(i)material produced under summons from Victoria Police;[26]
(ii)material produced under summons from Children’s Court of Victoria;[27]
(iii)material produced under summons from Magistrates Court of Victoria;[28]
(iv)material produced under summons from Corrections Victoria;[29]
(v)material produced under summons from Werribee Magistrates’ Court;[30]
(vi)material produced under summons from Werribee Magistrates’ Court;[31]
(vii)material produced under summons from County Court of Victoria (including the sentencing remarks of His Honour Judge O’Connell).[32]
[24]    Ibid, page 42.
[25]    Exhibit R1, Supplementary s 501 G Documents.
[26]    Ibid, SG1, pages 171-294.
[27]    Ibid, SG2, pages 295-850.
[28]    Ibid, SG3, pages 851-864.
[29]    Ibid, SG4, pages 865-882.
[30]    Ibid, SG5, pages 883-894.
[31]    Ibid, SG6, pages 895-904.
[32]    Ibid, SG7, pages 905-954.
As mentioned earlier, the material discloses that (in Australia) between February 2016 and May 2019 the Applicant came before the courts for sentencing on three occasions and that he has convictions recorded for seven offences broadly capable of characterisation as offences against the person and property of others. As mentioned earlier, the Applicant has minimal history in New Zealand for a traffic offence committed in 2002, involving careless operation of a vehicle which saw him convicted and fined the sum of $1,500.
Further, the Applicant’s conduct while in criminal custody has resulted in several interventions by the prison authorities. While not necessarily determinative of anything, two of those specific instances relate to:
(i)An incident (on 8 November 2019) involving “possess weapon” whereby the Applicant was found to be in possession of a “sharpened butter knife”;[33] and
(ii)An incident (on 1 February 2018) involving a search of the Applicant’s cell, whereby the prison authorities “…found prongs, razor blades and a desk fan that had signs oof [sic] tampering…”[34].
[33] Exhibit R1, Supplementary s 501 G Documents, SG4, page 879.
[34] Ibid, page 881.
The Nature and Seriousness of the Applicant’s Conduct to Date
As mentioned earlier, there is a ready concession from the Applicant that his offending “…engages the statement of principle in Direction 79 that the government considers it to be “very serious”.”[35] Further, “The applicant acknowledges the seriousness of his offending, understands the seriousness of the consequences of this conduct…”[36] In closing submissions, the Applicant’s representative said “…we accept that the applicant has engaged in some offending, including violent offending…”[37]
[35] Exhibit A1, Applicant’s SFIC, page 1, paragraph [5].
[36] Ibid, page 2, paragraph [7].
[37] Transcript, 28 May 2020, page 29, lines 28-29.
The Respondent contends that “…the Applicant’s criminal activity should be viewed as very serious…”[38] upon an application of the factors appearing in Paragraph 13.1.1 of the Direction. What has thus emerged is a convergence of views between the parties such that the nature and seriousness of the Applicant’s offending is to be viewed as “very serious”. Upon an application of the abovementioned factors appearing in Paragraph 13.1.1 of the Direction, I concur with this convergence of those respective views.
Application of the Factors in Paragraph 13.1.1(1) of the Direction
[38] Exhibit R1, Respondent’s SFIC, page 5, paragraph [28].
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), are the following factors from paragraph 13.1.1(1) of the Direction:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed.
(c)…
(d)Subject to paragraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)…
(h)…
(i)…
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction extends that principle to the commission of crimes of a violent nature committed against women or children. Sub-paragraph (b) relevantly provides that violent offending against women and/or children is to be viewed “very seriously” regardless of the sentence imposed for such offending.
The nature of the Applicant’s offending reveals a predisposition towards violent offending in a domestic context. In particular, his unlawful conduct has caused him to commit very serious crimes against his former spouse. These offending episodes have, regrettably, drawn innocent parties – primarily the infant children of the Applicant and his former domestic spouse – into its orbit. There can be little or no dispute with the contention that neither this Tribunal nor the public more generally have any tolerance for the commission of violent crimes against women. This Tribunal has previously noted that such conduct is “…unacceptable at any time – in any place – in any circumstances.”[39]
[39] Mendoza and Minister for Immigration and Border Protection [2018] AATA 686 at paragraph [48], per Senior Member Puplick.
The Applicant’s pattern of conduct towards his former domestic spouse is both concerning and appalling. She sought refuge from his unacceptable domestic conduct via the usual path of obtaining legislative protection against it in the form of a “Family Violence Safety Notice”. As will be seen, the imposition of such instruments upon the Applicant had little or no effect in curbing his predisposition towards very seriously offending in a domestic context.
On 3 October 2015, the Applicant became involved in a domestic dispute with his former partner about domestic finances. The relevant Victorian Police Report into the subject incident says these things:
“Today 03/10/2015 at about 1300 hours the AFM and the RESP[40] became engaged in a heated verbal argument in relation to money. The RESP asked the AFM for money to go to the TAB and “get more money” so they could do something as a family. The AFM refused to give the RESP and [sic] money out of fear he would gamble same. The RESP has become enraged and told the AFM to “fuck off” in front of the children. The AFM has then left the house and visited the local laundromat to speak with the RESP’s father. The AFM returned home a short time later where she was again confronted by the RESP. The RESP stated “what the fuck are you doing back here, fuck off”. The RESP has then picked up a nearby baby cot and threw it towards the AFM and the children, causing the cot to smash, whereby the legs and base fell off. The AFM feels that if the RESP doesn’t leave the household somebody may get hurt and end up in hospital. It is for these reasons police hold significant concerns for the welfare of the AFM and her children and have subsequently applying [sic] for a Family Violence Safety Notice, to exclude the RESP from the family home.”[41]
[40] “AFM” refers to the Applicant’s former spouse. “RESP” refers to him.
[41] Exhibit R1, Supplementary s 501 G Documents, SG1, pages 188-189.
Despite the imposition of the Family Violence Safety Notice, the Applicant nevertheless returned to the domestic residence and caused further fear and apprehension in the mind of his former domestic spouse. The Victorian Police Record further reveals:
“At 1908 hours 03/10/2015 [name of officers redacted] served the RESP with a copy of his Family Violence Safety Notice including a comprehensive explanation of the same. At approx. 2000 hours the AFM re-attended the NWM900 to collect her copy of the FVSN. Upon returning home the AFM noticed the RESP sitting around the corner from their house on [address redacted]. The AFM returned home, about five minutes later the RESP arrived at the house and came through the front door. The RESP asked the AFM where his clothes and phone were. The AFM informed the RESP he was breaching his order by being there and she had dropped his thing [sic] off to the Wyndham North Police Station for him to pick up. The RESP has dialled triple zero from phone and asked the AFM to tell police he was at the address. The RESPs uncle has arrived at [address redacted] and picked the RESP up. The RESP and his uncle attended the NWM900 where the RESP was cautioned and a field interview was conducted at the Wyndham North Police Station in relation to breaching his FVSN by attending the address.”[42]
[42] Ibid, page 189.
The Applicant was granted bail for this breach of the Family Violence Safety Notice and directed to appear at the Werribee Magistrates Court on 15 February 2016. In cross-examination, the Applicant accepted the truthfulness and accuracy about his offending as recorded in the relevant Victorian Police Report.[43]
[43] See Transcript, 28 May 2020, page 13, lines 8-46 and page 14, lines 1-12.
On 26 November 2017, the Applicant’s offending against his former domestic spouse continued. On this occasion, his conduct involved his false imprisonment of her. The relevant Victorian Police Summary says these things:
“…
After the victim returned home at approximately midnight, the accused turned up to her house. She was using her iPad browsing Facebook. The accused walked into her room and…said “what are you doing here? It’s my uncle’s house.” He took the iPad from the victim and said “what are you doing?” She told him that she was on Facebook. The accused replied “no you’re not, show me.” The victim then said to the accused, “No. I don’t have to show you anything. I’m just on Facebook.” The accused then took the iPad off the victim and asked for the PIN. The victim refused to give the accused the PIN to the iPad and told him to leave, and to leave her alone. The victim walked outside and the accused followed her out and wouldn’t leave her alone. The accused asked the victim for two favours then he would leave her alone. He asked her to take his car back to his place, which was at the victim’s house, and to bring her car back. The victim thought this was how she was going to get rid of the accused, so she agreed. When they both were on the way back [sic]the victim’s address, the accused kept driving and didn’t take the victim home. She kept telling him to take her home but he refused and said to her that “we need to talk”.
The accused drove to the Altona Boat Club and locked the victim in the car and wouldn’t let her go. The victim tried three or four times to get out of the car, and when she managed to get out of the car, the accused grabbed her and dragged her back in.
The accused then drove to the Altona Roosters Rugby League Club, and parked in the car park around the back. He kept telling the victim that “we need to talk”. The victim’s window was slightly open and she tried to yell to another car that was parked in the car park for help, but they didn’t hear her. The accused then put his hands over her mouth to stop her yelling.
The accused then drove out towards Geelong, near the off ramp to Little River. He pulled over on the side of the road and kept telling the victim that she better give him the iPad PIN. The victim told the accused that she needed to go to the toilet so she could try to get out of the car, but he wouldn’t let her go. He eventually let her out where they were parked, and she walked about 10 metres to pretend to go to the toilet, and the accused came up to her, but she kept telling him to get away from her. He said to her “you better not take off”, and then took her back to the car. The victim then tried to run, but only got as far as where she tried to go to the toilet and the accused dragged her back into the car.
The accused then drove not far away from where they were. He parked near a sign so that the victim couldn’t open her door. The victim managed to open the door and squeeze out of the car, but the accused was trying to pull her back in. She tried to wave down passing cars, but the accused managed to grab her again and pull her back into the car.
The accused drove back out to Altona and the same thing happened again. He then said to the victim, “give me your password and I’ll let you go.” The victim pleaded with the accused, saying, “I’ll give you my password, just let me go.” She gave him the password and he read what he wanted to read on the iPad.
At approximately 5 or 6 am, the accused wouldn’t take the victim home, so they went to his house. The accused told the victim to stay, so she did…They slept in the accused’s bedroom because he wouldn’t let her go.
About a week or two prior, the victim had gone for a ride with the accused in his truck to keep him company, but they had been arguing. On their way home, the accused pulled over to the side of Derrimut Road and punched the victim to the mouth and left cheek with his closed fist. He broke the victim’s tooth and she ended up with a bruised and swollen lip, and her nose and mouth were bleeding.
About a week after that, the accused punched the victim a few times to her left cheek after they had been arguing. They were in the accused’s work truck. When the accused punched the victim, she got out of the truck, as she was getting out, the accused pulled her back by the hair.
…”[44]
[44] Exhibit R1, Supplementary s 501 G Documents, SG1, pages 213-214.
At the hearing, during his cross-examination, the Applicant was referred to this specific summary of these offending incidents made by Victorian Police. This is what transpired during cross-examination:
“MR PALFREY:[45] Yes, okay. Then in November 2017 was your next offence. This is the charge of falsely imprisoning [the Applicant’s former spouse], do you recall that?
APPLICANT: Yes.
MR PALFREY: Can I take you to page 213 and 214 of the supplementary T documents, the big bundle, please?
APPLICANT: Yes.
MR PALFREY: So that’s a statement made by the informant in relation to that offence. Have you seen this before, can you remember?
APPLICANT: Yes, I have.
MR PALFREY: And maybe it’s easiest if you read through that and refresh your memory and tell me whether you agree to all of it as being accurate?
APPLICANT: Yes.
MR PALFREY: So you say that’s all accurate?
APPLICANT: Yes.”[46]
[45] Mr Michael Palfrey, Partner, HWL Ebsworth Lawyers.
[46] Transcript, 28 May 2020, page 14, lines 14-26.
With specific reference to this offending incident, the Applicant was then taken to the statement made by his former spouse about it. In particular, he was taken to the portions of her statement that say the following:
“I was scared for my safety and didu’t [sic] want to stay at my place, so my auntie offered me to stay with her, so I am staying with her know [sic]. [XLML] doesn’t know where she is lives [sic].
About a week or two before that happened, I had gone for a ride with [XLML] in the truck to keep him company, but we had been arguing. On our way home in our car, we were on Derrimut Road when he pulled over to the side. He then punched me to the mouth and left cheek with his closed right fist. He broke my tooth and I ended up with a bruised and swollen lip, and my nose and mouth were bleeding.
A week after that, [XLML] punched me a few times to my left cheek after we were arguing. We were in the work truck on Old Geelong Road iu [sic] Brooklyn near ATP. When he punched me, I got out of the truck and he pulled me by the hair. I had no choice and got back in the truck. I stayed with him until he finished his run and we went back to the house.
…”[47]
[47] Exhibit R1, Supplementary s 501 G Documents, SG1, page 228.
These passages of the former domestic spouse’s statement were put to the Applicant during cross-examination. This is what transpired:
“MR PALFREY: Thank you. Can I take you over to page – in the same bundle page 225? That’s the statement that – sorry, XLML, have you got that?
APPLICANT: Yes.
MR PALFREY: Thanks. So that’s the statement that [the Applicant’s former domestic spouse] made in relation to that incident. And you don’t need to – I want to take you over to page 228. Do you see – well, it’s the third paragraph or the second full paragraph on page 228 that starts with:
‘I was scared for my safety.’
?
APPLICANT: Yes.
MR PALFREY: And, yes, and I think that’s didn’t:
‘And didn’t want to stay at my place, so my aunty offered me to stay with her, so I am staying with her now. XLML doesn’t know where she is [sic] lives.’
Is that the place that the further offence that you went to prison for occurred, do you know?
APPLICANT: No. No, it’s not.
MR PALFREY: It’s a different place?
APPLICANT: It’s a different – yes.
MR PALFREY: Okay, that’s fine, thank you. The next paragraph saying, sorry, starting about a week or two before that happened can you read that to yourself and just tell me whether you agree that that occurred?
APPLICANT: No, that didn’t.
MR PALFREY: It didn’t occur at all is your - - ?
APPLICANT: Yes, it didn’t occur at all.
MR PALFREY: Okay. And:
‘A week after that XLML punched me a few times to my left cheek after we were arguing. We were left in the work truck on Old Geelong Road. He punched me. I got out of the truck and he pulled me by the hair.’
Did that occur?
APPLICANT: Yes.
MR PALFREY: That did but the conduct described in the previous paragraph:
‘He broke my tooth and I ended up with a swollen lip and my nose and mouth were bleeding.’
That didn’t – in your evidence that didn’t occur?
APPLICANT: No, that didn’t occur but the one on Old Geelong Road did.”[48]
[48] Transcript, 28 May 2020, page 14, lines 27-47 and page 15, lines 1-25.
The Applicant was then taken to the circumstances resulting in his commission of offences for which he was convicted and sent to prison, initially on 14 December 2018 (at the Melbourne Country Court) and then on 14 May 2019 (at the Melbourne Magistrates Court). He was specifically referred to the “Summary of Charges” document prepared by attending police. This document records six charges which can be stated as follows:
“…
Charge 1 – Aggravated Burglary (Offensive Weapon)
On the 24^th of January 2018 at approximately 4:00am [the Applicant’s former domestic spouse] was asleep at her residential address of [redacted]. [The Applicant’s former domestic spouse] awoke and observed the accused crouching down beside her bed holding two butchers knives in his hands.
…
Charge 2 – Assault with Weapon, Charge 3 – Unlawful Assault, Charge 6 – Contravene Family Violence Intervention Order Intending to Cause Harm or Fear
[The Applicant’s former domestic spouse] got out of bed and the accused came around behind her and put the knives to her throat. The accused told her to be quiet and walked her towards the front door. [The Applicant’s former domestic spouse] complied fearing that he would hurt her. When they reached the front door, [the Applicant’s former domestic spouse] managed to sit down on the first step of the staircase which was across from the front door.
Witness [name redacted] came down the stairs and observed the accused leaning over [the Applicant’s former domestic spouse], holding one knife to her throat and the other in his hand. Witness [name redacted] ran outside in an attempt to find something to help [the Applicant’s former domestic spouse].
Charge 4 – Make Threats to Kill
The accused told [the Applicant’s former domestic spouse] “If you don’t get up and come with me, I’ll kill you.” [The Applicant’s former domestic spouse] was afraid that the accused would follow through with the threat and agreed. [The Applicant’s former domestic spouse] got up off the step and started walking towards the front…The accused still had the knives held to [the Applicant’s former domestic spouse]’s throat. Witness [name redacted] came back inside, yelling out…parents who were asleep upstairs that there was a man with knives in the house. Her mother [name redacted] yelled out, asking who was downstairs, [the Applicant’s former domestic spouse] replied, stating that it was [the Applicant].
As [the Applicant’s former domestic spouse] and the accused were walking to the front door, she grabbed the handles of the knives, cutting her…palm and stated that she would go with him and talk about things. The accused removed the knives from her throat. As they opened the door, [the Applicant’s former domestic spouse] has pushed him outside and struggled with the accused to shut the door.
[The witness’ mother – name redacted] came downstairs and observed [the Applicant’s former domestic spouse] struggling to close the front door. [The Applicant’s former domestic spouse] managed to get the front door shut before falling to the ground and [the witness – name redacted] ran over and locked the door.
[The witness’ mother – name redacted] and her husband [name redacted] went outside to see if anyone was out the front but did not locate any persons. [The witness’ mother – name redacted] called 000.
Charge 6 – Theft
[The Applicant’s former domestic spouse] had her white Telstra mobile phone on charge on her bedside table and realised that the accused had stolen it.
…”[49]
[49] Exhibit R1, Supplementary s 501 G Documents, SG1, pages 237-238.

The very serious nature of the Applicant’s conduct with the butcher’s knives is further detailed in the relevant Victoria Police Report into the incident which says the following:
“The AFM and the RESP are former domestic partners and have six children who reside with the AFMs mother in [address redacted]. The AFM and the RESPs relationship broke down approx. 1 month ago and the AFM now resides with a family friend that the RESP doesn’t know.
On the 24/01/2018, at approximately 0400 hours the RESP has attended the AFMs address and gained entry via an unlocked door. The AFM is staying in a makeshift bedroom in the lounge of the address. Once inside the address, the RESP went to the AFM who [sic] asleep in bed and woke her up. Once the AFM was awake, the RESP has brandished two large butchers knifes [sic] and told the AFM to “Be quiet and come with me”. The AFM denied and the RESP has then grabbed the AFM and got her out of bed and held one of the knifes [sic] to the throat of the AFM and walked her out of the house telling her to be quite [sic].
A 14 year old has then heard banging on the stair case from upstairs and got out of bed to investigate. The 14 year old has then observed the RESP grab the AFM by the hair and hold the knife to her throat. The AFM grabbed the handle of the knife and pleaded [sic] the RESP to “Let’s just talk outside” when the AFM stated that; the RESP has removed the knife from her throat and walked outside. Once outside the AFM has then slammed the door with the RESP on the outside attempting to force the door open. At this point other occupants of the address has [sic] then come down and scared the RESP off. The RESP has then decamped in a vehicle and was later arrested at his home address by police.
There is a small cut on the AFMs right hand in the webbing of her thumb. Nil marks on the AFM’s throat.
The AFM stated to police that the violence only escalated in December 2016, before this there was a lot of verbal arguments.
…”[50]
[50] Ibid, page 177.
The Applicant’s former domestic spouse also made a statement in relation to this episode of the Applicant’s offending. Relevantly, in this statement she says:
“8. I recognised the knives as butchers’ knives that I used in my old work. I gave the knives to him when we lived together.
9. As a result of this incident I fear for my life and fearful for the lives of my children, my friends I live with or anyone else. I fear that he’d hurt people I know just to get to me. Every time I see him do something like this I fear it’s my last day alive and that my kids will have to bury me.
10. I did not give [the Applicant] permission to do any of this to me.
11. I do not know how [the Applicant] knew where I was because this was supposed to be a safe place.
…”[51]
[51] Ibid, page 249.
In cross-examination, the Applicant was taken to the details of his offending, specifically, to the abovementioned document titled “Summary of Charges” and the abovementioned statement of his former domestic spouse. This is what transpired during that portion of the cross-examination:
“MR PALFREY: So in relation to page 237 that’s a summary of the offence for which you were convicted and went to prison for, is that correct?
APPLICANT: Yes.
MR PALFREY: And do you accept, you can take time to read it, do you accept the account that’s in that summary of offence sheet on 237 and over to 238?
APPLICANT: Yes.
MR PALFREY: And then on page 248 a (indistinct) statement of [The Applicant’s former domestic spouse] regarding that offence. Paragraph says:
‘As a result of this incident I fear for my life and fearful for the lives of my children and my friends I live with or anyone else. I feared that he’d hurt people I know just to get to me. Every time I see him do something like this I fear it’s my last day alive and that my kids will have to bury me.’
I think you’ve said in your statement that you accept that she, [the Applicant’s former domestic spouse], feared – was very fearful for her life, is that correct?
APPLICANT: Yes, yes.”[52]
[52] Transcript, 28 May 2020, page 15, lines 30-46.
The level of seriousness of the circumstances surrounding the Applicant’s final episode of offending was clearly apprehended by the learned sentencing judge[53] who imposed the aggregate custodial term of 30 months. Relevantly, Judge O’Connell noted the following in his sentencing remarks:
[53] His Honour, Judge O’Connell, County Court of Victoria.
“7. Once you and the victim were in the hallway you moved behind her and held the two butchers knives to her throat. You told her to be quiet and to walk towards the front door. As you reached the front door the victim sat on the bottom opposite stair. You then said to her “If you don’t get up and come with me, I’ll kill you.” In order to keep you calm the victim agreed to leave with you.
8. The 14 year old daughter of the couple with whom the victim was staying heard some noise and came downstairs to see what was happening. She saw you holding the knives about 1cm from the victim’s throat. The 14 year old girl ran past you and shoved you as she did so. Your former partner seized the opportunity to grab the knives you were holding. In doing so, she sustained a small cut to her right hand. That conduct, in part, constitutes charge 2 being the contravention of the family violence intervention order and the summary offence assault with a weapon.
9. The 14 year old girl yelled out to her mother “Mummy, mummy, there’s a man out there with knives.” As you walked out the door, the victim tried to push the door shut with the assistance of the 14 year old girl. The mother of the 14 year old came downstairs and saw the victim struggling to close the door. She also saw her daughter help close that door and lock it.
…
11. Police attended shortly afterwards and observed some damage to the front door and a cut on the webbing of the victims hand, her right hand. Your partner was visibly distressed and shaking uncontrollably at that time.
…
Impact of offending
14. Turning to the impact of your offending, a victim impact statement was provided by your former partner, which was read aloud in court by the prosecutor. What you did has had a profound effect on the victim. At the time she feared for her life and even now, 11 months on from this incident, she constantly feels frightened and on edge. It has adversely affected her work, her peace of mind and her ability to move on with her life. She has needed to seek professional help in coping with her anxiety and the way that you have made her feel. She still struggles to manage and is only slowly rebuilding her life.
15. You should understand that the impact of what you did to your former partner is an important consideration to be taken into account in formulating the sentence which must be imposed.
…
Findings
48. Ultimately, I have determined that this offending is too serious to be dealt with by imposing a community corrections order in combination with a term of imprisonment. I have come to the view that the only appropriate sentence is the imposition of a term of imprisonment with a non-parole period…”[54]
[54] Exhibit G1, s 501 G Documents, G2, pages 34, 35 and 39.
I have had regard to the specific written material available to the Tribunal and the Applicant’s evidence at the hearing. I am of the view (for the purposes of these sub-paragraphs (a) and (b) of paragraph 13.1.1(1) of the Direction) that the violent circumstances of the Applicant’s offending, perpetrated, as it was, against a female victim, must be viewed very seriously.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) of paragraph 13.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of a given offence committed by an Applicant.
This Applicant arrived in Australia in February 2008. He was in his mid-20s upon arrival. He did not come to Australia either as a child or a very young person having just attained his age of majority. Putting aside his traffic offence in New Zealand that occurred in 2002, his offending history in this country commenced in 2015 and was dealt with by the Werribee Magistrates Court in early 2016. While it can be accepted that this initial sentencing episode was dealt with on the basis of “Without conviction…to pay $500.00 to the Court Fund”, the nature and level of this sentence can be contrasted starkly to the sentence that Judge O’Connell imposed on the Applicant on 14 December 2018, consequent upon the final episode of his offending.
As noted by Judge O’Connell, “Ultimately, I have determined that this offending is too serious to be dealt with by imposing a community corrections order…I have come to the view that the only appropriate sentence is a term of imprisonment with a non-parole period.” Judge O’Connell determined that:
“51. On each of the charges of aggravated burglary, contravening a family violence intervention order intending to cause harm or fear, theft and the related summary offence of unlawful assault with a weapon, you will be convicted and sentenced to an aggregate term of 30 months imprisonment. I will fix a non-parole period of 15 months imprisonment…
…
53. I will also declare, pursuant to s6AAA of the Sentencing Act, that but for your plea of guilty, I would have sentenced to a total effective sentence of 4 years, with a non-parole period of 2 years and 6 months.
…”[55]
[55] Ibid, page 40.
The Applicant is now 37 years of age and, until his placement into criminal custody in December 2018, had been in Australia for roughly 11 years. In terms of weight attributable to this sub-paragraph (d), it cannot be ignored that his offending has been punished by an aggregate custodial term of 30 months, which represents approximately 23% of his time in the mainstream Australian community preceding his placement into criminal custody. This sub-paragraph (d) clearly militates in favour of a finding that the sentence imposed by Judge O’Connell for the crimes of the Applicant is indicative of the very serious nature of the Applicant’s offending.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. The investigatory exercise required by this sub-paragraph (e) largely mirrors that required by the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of the offending is usually analogous to the regime of sentencing imposed for it.
I will deal firstly with the frequency of the Applicant’s offending. He is presently 37 years of age. His offending in this country (in terms of his appearances before lawful authority for sentencing) spans the period February 2016 to May 2019. The period of offending is relatively short, and cannot be said to contain a significant list of offences.
With reference to any discernible trend of increasing seriousness in the Applicant’s offending history, it is difficult to find that his offending in this country commenced with low-level, minor or misdemeanour-type offences. While the sentence imposed upon him at the Werribee Magistrates Court in 2016 essentially involved the imposition of a $500 penalty, the circumstances of his offending were not minor or low-level. A domestic incident with his former domestic spouse that also occurred in front of his five minor children, resulted in him throwing a baby cot at his partner and the children. It also resulted in the imposition of a Family Violence Safety Notice upon him. Later on the same day, the Applicant breached that safety notice.
I have earlier outlined the circumstances of the offending resulting in Judge O’Connell’s imposition of a 30 month custodial term on the Applicant. I do not consider the Applicant’s offending conduct graduated or evolved from low-level offending into very serious offending. His offending conduct in this country has been very serious from its outset and has placed people drawn into its orbit directly into harm’s way.
An application of this sub-paragraph (e) to the present factual matrix leads to a finding that, if not the frequency of his offending, then certainly its level of severity from its outset, surely attract a finding that his offending in this country has been of a very serious nature.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending.
As mentioned earlier, the Applicant’s offending has been primarily committed upon his former domestic spouse. It has also drawn his infant children into its milieu. I further note that his offending with the butcher’s knives was committed in the presence of the 14 year old daughter of the couple with whom the victim of that offending was then residing. I take Judge O’Connell’s sentencing remarks relating to the words yelled out by the abovementioned 14 year old girl to her mother, “Mummy, mummy, there’s a man out there with knives”, at face value. Likewise, I cannot ascertain a single positive outcome involving the Applicant’s conduct of throwing a baby cot at his partner and the children as occurred on 3 October 2015.
I respectfully concur with Judge O’Connell’s observation that the Applicant’s offending has clearly had a deleterious effect on his former domestic partner. Judge O’Connell found that the Applicant’s offending against her had a “profound effect” on her. His Honour found that the Applicant’s conduct caused her to “fear for her life and even now, 11 months on from this incident, she feels frightened and on edge.” His Honour found the Applicant’s offending “has…adversely affected her work, her peace of mind and her ability to move on with her life.” These effects of the Applicant’s offending against his former domestic spouse have caused her to seek professional intervention to assist her in coping with the ill effects of his offending. Judge O’Connell found that “she still struggles to manage and is only slowly rebuilding her life.”
Judge O’Connell recognised that the cumulative effect of the Applicant’s offending should cause the Applicant to “…understand that the impact of what you did to your former spouse is an important consideration to be taken into account formulating the sentence which must be imposed.” I have had regard to the Applicant’s history and pattern of offending. I am of the view that the cumulative effect of the nature and extent of the Applicant’s offending attracts application of this sub-paragraph (f) in favour of a finding that his offending in this country has been of a very serious nature.
The chapeau to the factors at Paragraph 13.1.1 of the Direction reads as follows:
“(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including: …”
[My underlining]
There are several further aspects to the Applicant’s conduct which, although not directly captured by the nine factors at Paragraph 13.1.1(1) of the Direction, may nevertheless constitute “other conduct” relevant to any assessment of the nature and seriousness of the Applicant’s conduct.
First, I have earlier referred to two incidents that have occurred during the Applicant’s time in criminal custody. They occurred on 8 November 2019 and 1 February 2018. The former incident involved the Applicant being found in possession of a sharpened butter knife. The latter involved him being found in possession of prongs, razor blades and a desk fan that had signs of tampering.[56]
[56] Exhibit R1, Supplementary s 501 G Documents, SG4, pages 879 and 881.
Second, much of the Applicant’s violent offending in a domestic context has been committed in the presence of children. His throwing of the baby cot on 3 October 2015 occurred in front of his five minor children. His conduct relating to the holding of the butcher’s knives about one centimetre from his victim’s throat occurred in the presence of a 14 year old child.
While these two further aspects of the Applicant’s offending do not appear in his criminal history, or may not otherwise be strictly captured by the nine sub-paragraphs in Paragraph 13.1.1(1) of the Direction, I am nevertheless of the view that the totality of these particular aspects of his conduct are relevant and are captured as “other conduct” in the abovementioned chapeau to Paragraph 13.1.1(1) of the Direction.
Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs (a), (b), (d), (e) and (f) of paragraph 13.1.1(1) of the Direction are relevant, I am of the view that the Applicant’s conduct is readily capable of characterisation as “very serious”.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
(i)paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The Nature of the Harm to Individuals or the Australian Community were the Applicant to Engage in Further Criminal or Other Serious Conduct
The circumstances and nature of the Applicant’s offending have involved the infliction of both physical and psychological harm to both his victim and other members of the Australian community. It goes without saying that any repetition of such conduct will doubtless result in consequences that, at best, will be adverse to a victim and other people drawn into its orbit. It is not difficult to conclude that were he to repeat his conduct, even in a like manner, in future, catastrophic consequences could result. I am of the view that whether that conduct is repeated at (1) an equal, (2) similar, or (3) greater severity than what he has done to date, the consequences of that offending would be so serious that any risk of similar future conduct would be intolerable to the Australian community.
At the hearing, the Respondent contended that:
“…In terms of the nature of the offending and the fear the victim, the applicant’s partner, was subjected to as a result of the continuing offending because this goes to considering the risk appetite if there were to be any reoffending and Mr Aleksov has said there’s a low risk and even if that’s accepted a low risk of offending of the nature in which the applicant has previously offended is an intolerable risk because of the violent nature of it against vulnerable members of the community and the fact that it’s repeated until his incarceration.”[57]
[57] Transcript, 28 May 2020, page 32, lines 42-47, and page 33, lines 1-2.
Paragraph 6.3(4) of the Direction stipulates that decision-makers should be guided by the principle that criminal offending 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. On the basis of this paragraph 6.3(4), I think the Respondent’s abovementioned submission is correct.
Having regard to the nature and circumstances of the Applicant’s unlawful conduct to date, there is much to suggest that, were he to re-offend if returned to that Australian community, the consequences would be very serious and would, quite conceivably, involve significant, and potentially catastrophic physical and psychological harm to members of that community. Put simply, having regard to the nature of his past conduct, it would be unsafe to find that, were he to re-offend in the realm of domestic violence, the nature of the harm to any victim would be somehow milder than that experienced by his former domestic spouse in the abovementioned offending episodes spanning the period 2015 to 2018.

I am thus of the view that the potential consequences flowing from further similar, identical or more severe offending conduct by this Applicant would be very serious. Were he to re-offend, I am of the view that its effect on a member or members of the Australian community would be very serious indeed and with, quite conceivably, potentially catastrophic consequences.
The Likelihood of the Non-citizen Engaging in Further Criminal or Other Serious Conduct
There was an acceptance on behalf of the Applicant that he has engaged in “some offending” and that this has included violent offending. There was a further acceptance that past offending can be probative of a future risk. According to those submissions, the task for this Tribunal is to “…assess the gravity of the risk in terms of magnitude, as well as the quality of the risk, what might happen.”[58]
[58] See Transcript, 28 May 2020, page 29, lines 28-32.
The difficulty with that submission is that “what might happen” – were the Applicant to re-offend – could result in very serious and/or catastrophic harm to other members of the Australian community. The Applicant’s history and pattern of offending is replete with repeated failures to deal with adverse domestic situations that may confront him. He is not disposed to negotiating an outcome with a domestic partner on equal terms. He demands to have his own way and when that demand is rejected or resisted, very serious and potentially catastrophic offending has followed.
It was further contended that:
“It’s quite apparent, in our submission, from the applicant’s background, that his untreated or poorly treated mental health issues were self-evidently a significant contributing factor to his offending, combined with his drinking and gambling addictions. The applicant now has those three matters under control. He doesn’t drink, he doesn’t gamble, and you should accept that he won’t, if he is allowed to return to the community.”[59]
[59] Ibid, lines 34-39.
It was further contended that:
“In terms of his mental health situation, he has successfully completed a program in prison and doesn’t require counselling anymore and by all accounts, he’s on stable medication which, if released into the community, he’ll be able to self-administer and manage himself.”[60]
[60] Ibid, lines 41-44.
In the final analysis, contends the Applicant,
“When put together, in our submission, the evidence reveals nothing higher than a low risk of further offending and that conclusion is fortified by present lockdowns, because opportunity for offending is diminished. In the resolve,[sic] the need for protecting the Australian community from the applicant is a not at all large and it is indeed, quite small. The Australian community will tolerate some measure of risk, so as not to offend other principles…”[61]
[61] Ibid, page 30, lines 4-9.
In re-examination, it was sought to economically deal with and dispatch the level of the Applicant’s residual risk of re-offending because, according to him, all of the factors had now disappeared or were no longer causative of his offending conduct as they were in the past. This is what transpired during the Applicant’s re-examination:
“MR ALEKSOV: XLML, do you have still gamble?
APPLICANT: No.
MR ALEKSOV: Do you still drink?
APPLICANT: No.
MR ALEKSOV: If you were released into the community do you think you would drink or gamble?
APPLICANT: No.
MR ALEKSOV: Why do you say that?
APPLICANT: It’s because I’ve been – whilst I’ve been incarcerated I’ve been educated on gambling and the effects of alcohol on my mental state.
MR ALEKSOV: I’m sorry, I can’t hear anything. Have you finished your answer, XLML?
APPLICANT: Yes.
MR ALEKSOV: Okay. So you’ve been educated about gambling and drinking, is that right?
APPLICANT: Yes.
MR ALEKSOV: Okay, and what do you mean when you say “Educated”?
APPLICANT: Before I didn’t know what – I had no clue on what the alcohol and the gambling was doing to my mental state. It wasn’t until I got incarcerated that I learnt that.
MR ALEKSOV: Okay. And are you confident now that if you were released you would abstain from gambling or drinking?
APPLICANT: Yes.
MR ALEKSOV: You said that you’re not on counselling any longer?
APPLICANT: No, that’s right.
MR ALEKSOV: When did that stop?
APPLICANT: About November last year.
MR ALEKSOV: And why?
APPLICANT: Because I had left the Tambo Program.
MR ALEKSOV: You left it. Does that mean you completed the program?
APPLICANT: Yes, I completed the program.
MR ALEKSOV: Did you complete it successfully?
APPLICANT: Yes.
MR ALEKSOV: So is it the case that you no longer require counselling?
APPLICANT: Yes.
MR ALEKSOV: And the medication that you described that you’re taking do you self‑administer that?
APPLICANT: Yes.
MR ALEKSOV: And do you manage it yourself?
APPLICANT: No, the prison manages it at this stage. They tell me when and when not to take my medication.
MR ALEKSOV: Okay. If you were released into the community how would that medication be managed?
APPLICANT: Well, I’d have to manage it myself.
MR ALEKSOV: And do you think that you could do that?
APPLICANT: Yes.
MR ALEKSOV: Why?
APPLICANT: Because I understand my mental health now.
MR ALEKSOV: So you said that you could manage the medication. How would you do that?
APPLICANT: I’d set my alarm for a certain time of the day that I need to be able to take it. I’d have supports around me to make sure that I’m taking my medication every day.
MR ALEKSOV: No further questions, thank you, Senior Member.”[62]
[62] Ibid, page 18, lines 6-47, and page 19, lines 1-14.
The Applicant purports to understand the seriousness of his offences and the consequences that arose from them. He says he is “extremely remorseful” for what he has done and that he takes “full responsibility” for his “mistakes”.[63] As I understood the evidence, the primary drivers behind the Applicant’s past offending may be broadly stated as: (1) gambling and resulting gambling debts; (2) alcohol abuse; (3) the death of his niece (for which the Applicant is still the subject of an ongoing police investigation) that has apparently “created a huge amount of pressure on [his] shoulders + [his] mental state”[64]; and (4) the breakdown of his marriage.
[63] Exhibit G1, s 501 G Documents, G2, page 49.
[64] Ibid, page 67.
The extent of the medical assistance and rehabilitation the Applicant has sought and obtained for those causative factors predisposing his past offending has involved him in:
(i)being an inpatient of the forensic mental health service at the Ravenhall Corrections Centre and participating in a rehabilitative program known as “Moroka”; and
(ii)completing several other rehabilitative courses during his period of incarceration that included modules on mental health, managing behaviours and developing life skills.
The relevant document in the evidence confirming the Applicant’s participation as an inpatient as part of the Moroka program comprises a relatively short letter (dated 7 November 2018) from Dr Greg Shinkfield, who is described as “Program Manager Moroka”.[65] Dr Shinkfield confirms that the Applicant was accepted into the Moroka program “…which is a twelve-week voluntary therapeutic program aimed at providing participants with skills and resources to managing challenging behaviour.” Dr Shinkfield confirmed that the Applicant had been in the program since July 2018 and that he had been provided with individual psychology and therapy sessions as well as “many group programs.”
[65] Ibid, page 70.
Dr Shinkfield said that the Applicant “…has attended groups that include:
·Managing emotional regulation
·Developing and maintaining positive relationships
·Anger management and conflict management
·Understanding and optimizing mental health
·Understanding trauma and managing the long-term effects
·Drug and Alcohol groups,
·Planning for the future
·Relaxation and self-soothing techniques
·Recreational skills
·Living skills”.[66]
[66] Ibid.
Dr Shinkfield concluded his letter by saying the Applicant “…has been an enthusiastic member of the program, attending all groups and doing all homework required. He has demonstrated to the treating team that he has learned a lot of worthwhile skills, and has been practising utilizing them. He has been a positive role model for other patients, and a model prisoner.”[67]
[67] Ibid.
Dr Shinkfield’s letter goes no further than to confirm that the Applicant participated in the Moroka program and to describe the nature of topics covered during both individual and group therapy sessions in which the Applicant participated. However, it is necessary to look further into the Applicant’s participation in the Moroka program and to have regard to the specific findings and recommendations of Dr Ashley Dunne, Psychologist, FMH Moroka Unit. In Dr Dunne’s report, which appears in the “Discharge Summary” component relating to the Applicant’s participation in the Moroka program, the following, and to my mind, significant, comments appear:
“The following future treatment recommendations have been identified:
·     Once [the Applicant]’s criminal and family court matters have been finalised, it is recommended that he engage in further psychological intervention to address his grief symptoms. This will enable [the Applicant] to speak openly about the circumstances surrounding his niece’s death, the removal of his children from his and his partner’s custody, the breakdown of his romantic relationship, and imprisonment. This could be achieved via Complicated Grief Intervention, which is an intervention that may assist [the Applicant] to process the multiple losses experienced, reduce symptoms of painful intrusive memories/nightmares and behavioural avoidance, and re-establish relationships and connections with valued goals.
·     [The Applicant] has identified anger management as an ongoing treatment need. It is recommended that he engage in an anger management program during the present incarceration or when released into the community to assist him to identify triggers to and learn adaptive ways to cope with his anger experiences.
·     [The Applicant] would benefit from continued work targeting his ability to communicate his emotional distress. This should focus on teaching him to develop (a) greater awareness of his emotions, (b) a vocabulary to assist him to communicate his internal experiences with others, and (c) additional coping skills to manage his distress.”[68]
[My emphasis and underlining]
[68]    Ibid, page 74.
These findings and recommendations of Dr Dunne do not square with the Applicant’s self-reported answers to questions in re-examination that (1) he no longer gambles, (2) he no longer drinks, and (3) if released back into the community, he would no longer drink or gamble. I do not accept the Applicant’s evidence in re-examination to the effect that he no longer requires counselling. I similarly reject the contention that he can effectively self-manage the psychological symptoms previously driving his offending “because I understand my mental health now”. This is not what Dr Dunne has identified and recommended in terms of the need for ongoing treatment and intervention to manage the factors previously causative of his very serious offending conduct.
In terms of the Applicant’s purported completion of several other rehabilitative courses during his incarceration, the material contains a series of certificates indicating his participation in and/or completion of rehabilitative programs. They comprise:
·Certificate of completion of the Moroka Program dated 9 November 2018;[69]
·Certificate of achievement – dual diagnosis drug and alcohol group program – introductory, dated 31 August 2018;[70]
·Certificate of completion – positive relationships – between 6/9/18 and 24/10/18;[71]
·Certificate of completion – Moroka: ‘Putting the Wheels Back On’ granted 23 October 2018;[72]
·Certificate of achievement (part completion) – “Coping Better” dated 8 November 2018;[73] and
·Certificate of attendance – ‘Coping Better’ Group – undated.[74]
[69]    Ibid, page 80.
[70]    Ibid, page 93.
[71]    Ibid, page 94.
[72]    Ibid, page 95.
[73]    Ibid, page 96.
[74]    Ibid, page 97.
Commendable though the Applicant’s participation in these courses may be, these certificates, even when read together with the Applicant’s self-reported evidence about his apparent total rehabilitation from all past causative factors behind his previous offending, does not displace the findings and recommendations for ongoing treatment, management and control of those symptoms as identified by Dr Ashley Dunne.
I therefore have significant difficulty in accepting the Applicant’s submission to the effect that “When put together…the evidence reveals nothing higher than a low risk of further offending…”[75]. Respectfully, the evidence reveals nothing of the sort. On the contrary, the evidence reveals that the Applicant has been adversely impacted by the causative factors or drivers behind his historical offending. I accept that those causative factors are genuine and that they have adversely affected him. What I do not accept is that those factors are the subject of any kind of ongoing remedial management and control to the extent that this Tribunal can safely find that “the evidence reveals nothing higher than a low risk of further offending…”
[75] Transcript, 28 May 2020, page 30, lines 4-5.
A further contention is pressed on the Tribunal to the effect that “the need for protecting the Australian community from the Applicant is not at all large, and it is indeed quite small.”[76] Again, with respect, there is nothing “quite small” about the nature of the Applicant’s violent offending in this country. There is nothing “quite small” about what he did, nor is there anything “quite small” to be taken from any future harm that a repeat of his offending may cause. It is not illogical to say that the more serious an offender’s conduct has been, the greater the need for convincing and definitive medical and clinical evidence that the factors driving that offending are under effective remedial management and control.
[76] Ibid, lines 7-8.
As Dr Dunne has amply demonstrated, the state of the evidence goes nowhere near reaching that threshold. Accordingly, it is not safe to conclude that “the evidence reveals nothing higher than a low risk of further offending…” Further, in my respectful opinion, the Australian community should not be reasonably expected to “tolerate some measure of risk” arising from the conduct exhibited by the Applicant to date, being repeated and perpetrated upon members of the Australian community. This is especially the case in circumstances where all rehabilitative steps apparently taken by the Applicant have been undertaken in the controlled environment of criminal custody. His asserted resilience towards a relapse into criminal conduct, alcohol dependency and gambling are yet to be tested in the broader community.
While not necessarily determinative of anything, the two incidents referred to above that occurred while the Applicant has been in criminal custody (8 November 2019 – being found in possession of a sharpened butter knife, and 1 February 2018 – being found in possession of prongs, razor blades etc.) do not bode well for a future free of further offending were he to find himself released from the confines and strictures of a custodial environment.
In terms of his risk of re-offending, a further contention is made on behalf of the Applicant to the effect that “…he will have immediate residence and Mr [redacted – the Applicant’s former employer]’s business, which is a tremendous protective factor…”[77] against his risk of re-offending. The Applicant’s former employer provided a written statement[78] and also gave oral evidence at the hearing. He confirmed that the Applicant worked for him for around 10 years, until he went to prison. This is what transpired during cross-examination:
[77]    Ibid, page 29, lines 45-46.
[78]    See Exhibit A4, Witness statement of Applicant’s employer.
“MR PALFREY: Yes, and he worked for you for over 10 years, until he went to prison?
THE APPLICANT’S FORMER EMPLOYER: It’d be around 10 years, yes.
MR PALFREY: Yes. When he offended and was arrested, that was the first you knew about it, was it?
THE APPLICANT’S FORMER EMPLOYER: I knew nothing about it, until he didn’t turn up for work.
…
MR PALFREY: Yes, and you’d been – was he living with you then as well?
THE APPLICANT’S FORMER EMPLOYER: No.
MR PALFREY: No?
THE APPLICANT’S FORMER EMPLOYER: No.
MR PALFREY: But you saw him every day at work, I guess?
THE APPLICANT’S FORMER EMPLOYER: I did see him every day at work, yes.
MR PALFREY: And it was a complete shock to you, I guess, was it?
THE APPLICANT’S FORMER EMPLOYER: Definitely, definitely. He wasn’t – he’s not that sort of a person. He’s a very quiet and honest bloke, you know, that’s why I’m trying to help him.
MR PALFREY: Yes. Did you know about any of his drinking or gambling problems?
THE APPLICANT’S FORMER EMPLOYER: Drinking, I never seen him drinking, because I – you know, we have a drink, but he’ll have one drink with me on his days off and that and if he spent half a day with me, he never mentioned any gambling or anything, you know, and no.”[79]
[79]    Transcript, 28 May 2020, page 26, lines 29-35, 40-45, and page 27, lines 1-9.
Having regard to the evidence from the employer, it is difficult to comprehend how returning to work with him and residing with him would somehow result in the lowering of the Applicant’s risk of re-offending. Clearly, the Applicant’s connection and relationship with his former employer did not prevent him from engaging in very serious criminal behaviour in the past. The former employer’s evidence is not indicative of him playing any kind of “fatherly” or overseeing role in the Applicant’s affairs. Put at its highest, the former employer played little or no role in how the Applicant conducted himself. He only found out the Applicant was in some kind of legal trouble when he failed to show up for work. He apparently knew little or nothing about the Applicant’s very serious problems with drinking and gambling, other than to say that “…we have a drink, but he’ll have one drink with me on his days off, and if he spent a day with me, he never mentioned gambling or anything…”
In the absence of any independent and expert evidence corroborating the Applicant’s own evidence about resolving his issues with (1) alcohol, (2) gambling and (3) other emotional trauma, very little, if any, weight can now be allocated to his contentions about now being rehabilitated and being in a position to somehow control the causative factors behind his past offending. In short, the evidence goes no further than the Applicant saying he has rehabilitated himself from each of these three factors.
In assessing the Applicant’s risk of re-offending, a decision-maker is required to “take into account available information and evidence on the risk of the non-citizen re-offending…”[80] There is no such independent and expert evidence before the Tribunal. On the contrary, the expert and clinical evidence of Dr Dunne confirms that any rehabilitation now asserted by the Applicant remains a work in progress.
[80] See paragraph 13.1.2(1)(b) of the Direction.
The inevitable conclusion to be reached about the Applicant’s risk of re-offending is best informed by an application of Principles 6.3(3)-(4) and paragraph 13.1.2(1) of Direction 79. The combined effect of those provisions is that the harm resulting from any return by the Applicant to his offending ways may very well be so serious such that any risk of similar conduct in the future is unacceptable. I so find.
I am also mindful of the comments made by a previous President of this Tribunal, His Honour Justice Davies, who said the following about the risk of reoffending:[81]
“The likelihood of recidivism is a strong factor in favour of the deportation when the Tribunal is not satisfied that the criminal is unlikely to offed again…And even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.”
[81] Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81.
Conclusion: Primary Consideration A

FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld FYBR, confirming Justice Perry’s reasons and approach to the expectations of the Australian Community.[104]
[104] See FYBR v Minister for Home Affairs [2019] FCAFC 185.
Thus, the Full Court’s decision, along with the existing authority of Afu establishes that:
(a) the “expectations of the Australian community” cannot be measured or determined as in the case of a provable fact. It is an assessment of community values made on behalf of that community;[105]
(b) it is not for the Tribunal to determine for itself what such “expectations” are by reference to the Applicant’s circumstances or evidence about those expectations;[106]
(c) the Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks are the “expectations of the Australian community”, and the Tribunal should have due regard of those statements, if made;[107] and
(d) in assessing the weight attributable to this Primary Consideration C, decision-makers can have regard to the principles in paragraph 6.3 of the Direction, in particular, sub-paragraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision-maker.[108]
[105] Afu at paragraph [85].
[106] FYBR at paragraph [42].
[107] FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[108] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).
The Applicant’s Contentions
During submissions, the Applicant’s representative made reference to the Respondent’s Reply[109] and said:
“Paragraph 6, the first two sentences are fine. The third sentence about FYBR and paragraph 13.13 working as a deemed community expectation has to be qualified or refined, in that it is a deemed community expectation, but the deeming is the government’s view. It does not deem what should be your view about the weight to be placed on the government’s view and the first sentence at paragraph 7 is, with respect, a mischaracterisation of the operation of this item of the Direction. No one is asking you to substitute your own assessment of the community’s expectations. You are being told, this is what the government thinks are the community’s expectations and you are required to form an opinion about how much weight to place on that.
It would be erroneous, in my respectful submission, for you simply to say that the government’s view of the community expectations must weigh against the applicant. It might be neutral if you place no weight on it and whether or not it should weigh against the applicant or should operate neutrally in the review is a decision for you to make.
…
The existence of ministerial control over this tribunal in the national interest is a powerful factor tending to suggest that you should not place any weight on the government’s opinion of community expectations. Finally, the last sent [sic] at paragraph 8 of the reply suffers from the same misconception affecting 6 and 7. It is not - the direction does not tell you what are the expectations of the community.”[110]
[109] See Exhibit R4, Respondent’s Reply.
[110] Transcript, 28 May 2020, page 31, lines 1-17 and lines 25-30.
I do not propose in these Reasons to have recourse to the provisions of paragraph 13.3(1) of the Direction and to simply find that the government’s view of community expectations are somehow “templated” and that such template automatically weighs against this Applicant. It is not open to this Tribunal to substitute its own assessment of the community’s expectations. To the extent there is flexibility, it can be found in the premise that the deemed community expectation predicated by the comments of Judge Charlesworth in FYBR should generally be afforded greater weight than the “Other Considerations” at paragraph 14 of the Direction, but that the Tribunal ultimately has flexibility to determine whether or not it is appropriate to do so.
The allocation of weight to the abovementioned deemed community expectation is augmented by reference to paragraph 6.3(3) of the Direction, which provides that non-citizens who commit crimes of a violent nature against women “should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.” The very serious criminal offending of the Applicant also attracts application of paragraph 6.3(2) of the Direction, such that “The Australian community expects that the Australian government…should cancel the visas [of non-citizens] if they commit serious crimes in Australia…”
Analysis – Allocation of Weight to this Primary Consideration C
The Applicant does have a demonstrated history of participation in the Australian workforce. He has described it thus:[111]
“From - to 24/1/18 – Truck driver – [Name of business redacted]
From - to – Truck driver – [Name of business redacted]”
[111] Exhibit G1, s 501 G Documents, G10, page 64.
In terms of contributions he has made to Australian community and cultural life, the Applicant has listed the name of the business that employed him up to 24 January 2018 and a Rugby League Club local to him.
Having regard to the nature and totality of the Applicant’s very serious unlawful domestic violence conduct from 2015 to 2018, and his resulting criminal history, he has surely breached the expectations of the Australian community. During this phase of offending, he has very seriously failed to abide by the laws of Australia. In ascertaining the weight attributable to this Primary Consideration C, I take into account the following factors and/or findings:
(i)the marginal level of the Applicant’s positive contributions to the Australian community;[112]
(ii)that the Applicant has lived in Australia for approximately 10 years from February 2008 until February 2018, when he went into custody;[113]
(iii)the removal of the Applicant may have an adverse impact on the relevant five minor children in Australia;[114]
(iv)the very serious nature of the Applicant’s offending to date in a domestic violence context towards his former domestic spouse;[115]
(v)the nature of the totality of his conduct in this country, involving, as it does, a lack of respect for the lawful authority governing the personal and property rights of those around him, especially in a domestic context;
(vi)the lack of current, independent and expert evidence supporting a finding that the causative factors behind his offending are the subject of remedial management and control, such that there can be a finding that his future risk of re-offending is low;
(vii)my finding of a strong and convincing likelihood that he will engage in further and, most likely, very serious conduct if returned to the Australian community; and
(viii)my assessment of the quite significant risk of substantial and even catastrophic harm to the Australian community were he to re-offend.
[112] The Direction, paragraph 6.3(7).
[113] Ibid, paragraph 6.3(5).
[114] Ibid, paragraph 6.3(7).
[115] Ibid, paragraph 6.3(3).
Conclusion: Primary Consideration C
I am of the view that the above factors, read as a whole in the context of this case, militate in favour of not revoking the cancellation of the Applicant’s visa. I accordingly find that this Primary Consideration C is of heavy weight in favour of affirming the non-revocation decision under review.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant has not claimed to fear harm if returned to New Zealand. None of the evidence suggests a risk of harm in those circumstances. This consideration is not relevant to the determination of this application.
(b) Strength, nature and duration of ties
The Applicant is 37 years of age. He came to Australia in February 2008 aged 25 years old. He has thus spent the majority of his life in New Zealand. His offending history commenced 7-8 years after his arrival in Australia and ran for a period of about two years. In my view, the provisions of paragraph 14.2(1)(a)(i) of the Direction should not be applied against the Applicant because he did not begin offending soon after arriving in Australia.
Conversely, the Applicant does have a strong work history in this country as a truck driver and, accordingly this attracts some weight in his favour pursuant to paragraph 14.2(1)(a)(ii) of the Direction due to his time spent contributing positively to the Australian community.
A greater (but not determinative) measure of weight in favour of the Applicant pursuant to this Other Consideration (b) can be found in paragraph 14.2(1)(b). In Australia, there is evidence to suggest the Applicant has strong ties to his father.[116] In addition to the five relevant infant children and his father, the Applicant has two brothers, a sister and a niece who reside in Australia. In terms of close members of his extended family, the Applicant has an uncle, two aunts and four cousins who reside in Australia.[117] It is difficult to support the Applicant’s contention about his having strong level of his ties to Australia because of the five biological children here. This is because, by virtue of externally imposed orders for the care and parenting of those children, his involvement with all five of the children has been severely limited since 2016.
[116] The Applicant’s mother passed away in 2015: see Exhibit A2, Statement of Applicant, page 2, paragraph [9].
[117] See Exhibit G1, s 501 G Documents, G2, page 62.
Having regard to the totality of the Applicant’s family/social links with members of his immediate and extended family in Australia, a moderate measure of weight is attributable to this Other Consideration (b) pursuant to paragraph 14.2(1)(b) of the Direction.
Accordingly, having regard to the totality of evidence, I am of the view that this other Consideration (b) weighs moderately in favour of revocation, but is outweighed by Primary Considerations A and C, which favour non-revocation.
(c) Impact on Australian business interests
There is no evidence before the Tribunal that cancellation of the Applicant’s visa would have an impact on Australian business interests. This consideration is not relevant to determination of this application.
(d) Impact on victims
For the purposes of the instant application, the Respondent has not called any evidence relating to the impact that the Applicant’s continued presence in Australia would have on his victim – his former domestic spouse. It is, therefore, not possible to make any finding about any impact that the Applicant’s continued presence in Australia would have upon her.
In the absence of such evidence, it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact that the Applicant’s continued presence in Australia would have on the victim of his offending. However, I have had regard to the abovementioned sentencing remarks of Judge O’Connell. His Honour says the following at paragraph 14 of the sentencing remarks:
“Impact of offending
14. Turning to the impact of your offending, a victim impact statement was provided by your former partner, which was read aloud in court by the prosecutor. What you did has had a profound effect on the victim. At the time she feared for her life and even now, 11 months on from this incident, she constantly feels frightened and on edge. It has adversely affected her work, her peace of mind and her ability to move on with her life. She has needed to seek professional help in coping with her anxiety and the way that you have made her feel. She still struggles to manage and is only slowly rebuilding her life.
15. You should understand that the impact of what you did to your former partner is an important consideration to be taken into account in formulating the sentence which must be imposed.”[118]
[118] Ibid, G1, pages 34 and 35.
Out of an abundance of caution, and given that no victim impact statement was relied upon by the Respondent in the instant hearing, I will only refer to these sentencing remarks and not rely upon them as the basis for the allocation of any weight to this Other Consideration (d). Accordingly, I cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s visa and is thus neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
Prior to any fulsome discussion of this Other Consideration (e), certain contentions made on behalf of the Applicant should be immediately dealt with. As I understand the Applicant’s contentions, the Tribunal should take into account certain other impediments to the Applicant’s return to New Zealand, which impediments are not mentioned in the language of paragraph 14.5(1) of the Direction.
First, the Applicant contends that the Tribunal should look askance at removing the Applicant to New Zealand because it may displease officials in New Zealand. The contention runs along these lines:
“24. There are strong reports from New Zealand officials, at the highest level, that they are furious with Australia deporting persons to New Zealand once those people have integrated into Australian society. The Tribunal should not contribute to angering our closest friend.”[119]
[119] Exhibit A1, Applicant’s SFIC, page 4.
The displeasure of officials in New Zealand, were an applicant to be removed from Australia pursuant to an adverse decision emanating from an application such as the instant one, is hardly a matter of interest to this Tribunal. The task of this Tribunal is to strictly apply the provisions of the Direction as they relate to a given factual matrix that is before it. Displeasure apparently experienced by foreign officials at the outcome of these types of applications does not appear in paragraph 14.5(1) of the Direction, nor anywhere else in the Direction. Those apparently displeased views of foreign officials are of no relevance to the determination of any aspect of this application. To whatever extent they may be relevant, they come nowhere near displacing the very significant weight I have allocated to Primary Considerations A and C that both determinatively favour non-revocation.
Second, there is a contention on behalf of the Applicant that this Tribunal should look askance at removing the Applicant to New Zealand because (1) in the event of an adverse outcome for him, he will remain in immigration detention for a prolonged period due to current travel restrictions, and that this is expensive to the Australian government, and (2) the expense of retaining the Applicant in immigration detention during the period of “lock-down” or greater control over social movement during the current pandemic is better applied to other sectors of the Australian economy.
It is not the role of this Tribunal to take into account governmental economic benefits or detriments resulting from a determination of an application such as this. These contended factors do not appear in paragraph 14.5(1) of the Direction, or elsewhere in the Direction. To whatever extent such economic factors may be relevant, they come nowhere near displacing the very significant weight I have allocated to Primary Considerations A and C that both determinatively favour non-revocation.
The Applicant is a man of 37 years of age. In response to question in his “Personal Circumstances Form” about “Do you have any diagnosed medical or psychological conditions?” the Applicant ticked the “Yes” box. He described his condition as “Major Depressive Disorder with Psychotic Features”.[120] He referred to medication that he is taking for that condition as (1) “Aripiprazole – an antipsychotic medication” and (2) “Escitaloprame – an antidepressant medication”.[121] It is reasonable to find that the level of medical care and governmental social support in New Zealand[122] is at or about the same level as that available to the Applicant in Australia. The Applicant will have access to those medications and any necessary treatment for those conditions in the context of what is generally available to other citizens of New Zealand. Thus, the Applicant’s age and state of health are not factors that attract any measure of weight to this Other Consideration (e).
[120] Exhibit G1, s 501 G Documents,, G2, page 65. See also Section 14.5(1)(a) of the Direction.
[121] Ibid, G2, page 65.
[122] Section 14.5(1)(c) of the Direction.
I note there are no significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in New Zealand.[123] New Zealand is culturally and linguistically similar to Australia. It cannot be said that the Applicant will face significant linguistic or cultural barriers were he compelled to return there. To the extent he may face some difficulty in re-establishing himself in New Zealand, this would only present as a short-term hardship and would not preclude his successful re-settlement there.[124]
[123] Section 14.5(1)(b) of the Direction.
[124] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly.
In his Personal Circumstances Form, the Applicant speaks of adverse outcomes were he to be returned to New Zealand as follows:
“Do you have any concerns or fears about what would happen to you if you were to return to your country of citizenship?
[The Applicant did not tick the ‘Yes’ or ‘No’ box]
If yes, please describe your concerns and what you think will happen to you if you return.
I believe if I were to return back to New Zealand my illness would decline significantly as I would be without my children and family. I would spiral out of control.” [125]
[125] Exhibit G1, s 501 G Documents, G2, page 66.
As mentioned, the Applicant also has an employment history in Australia. He has worked as a truck driver in this country. There is little evidence in the material to cavil with the contention that the Applicant would not be able to find similar work in that field upon his return to New Zealand.
Having regard to the totality of the evidence, I am thus of the view that this Other Consideration (e) is of slight weight in favour of revocation.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C, which respectively weigh very heavily and heavily in favour of non-revocation. The application of the Other Considerations to the determination of the present matter can be summarised as follows:
·International non-refoulement obligations: not relevant;
·Strength nature and duration of ties: moderate weight in favour of revocation;
·Impact on Australian business interests: not relevant;
·Impact on victims: neutral; and
·Extent of impediments if removed: slight weight in favour of revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.

In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs very heavily in favour of non-revocation;
·Primary Consideration B weighs slightly in favour of revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·I have outlined the weight attributable to the Other Considerations. I do not consider that any of them, even when combined with each other and/or with Primary Consideration B, outweigh the significant and determinative weight I have attributed to Primary Considerations A and C; and
·A holistic view of the considerations in the Direction, therefore, favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

191. I certify that the preceding one-hundred and ninety (190) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

............................[SGD]............................................
Associate
Dated: 9 June 2020

Date of hearing: 28 May 2020

Counsel for the Applicant:

Solicitors for the Applicant

Mr Angel Aleksov

Condello Lawyers

Solicitor for the Respondent: Mr Michael Palfrey
Partner, HWL Ebsworth Lawyers
“A”
EXHIBIT LIST

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents

(pages 1-170)

Resp

Various

6 APR 20

R1

Supplementary s 501 G Documents

(pages 171-956)

Resp

Various

23 APR 20

R2

Respondent’s SFIC

Resp

23 April 2020

23 APR 20

R3

Respondent’s List of Authorities

Resp

Undated

23 APR 20

R4

Respondent’s Reply

Resp

20 May 2020

20 May 20

A1

Applicant’s SFIC

App

15 May 2020

15 MAY 20

A2

Statement of Applicant (XLML)

App

Undated

27 MAY 20

A3

Applicant’s Certificates (x6)

App

Various

15 MAY 20

A4

Statutory Declaration of Applicant’s Former Employer

App

21 May 2020

25 MAY 20

A5

Statutory Declaration of Applicant’s Father

App

Undated

25 MAY 20

[2020] AATA 1657

9 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (pages 1-170)	Resp	Various	6 APR 20
R1	Supplementary s 501 G Documents (pages 171-956)	Resp	Various	23 APR 20
R2	Respondent’s SFIC	Resp	23 April 2020	23 APR 20
R3	Respondent’s List of Authorities	Resp	Undated	23 APR 20
R4	Respondent’s Reply	Resp	20 May 2020	20 May 20
A1	Applicant’s SFIC	App	15 May 2020	15 MAY 20
A2	Statement of Applicant (XLML)	App	Undated	27 MAY 20
A3	Applicant’s Certificates (x6)	App	Various	15 MAY 20
A4	Statutory Declaration of Applicant’s Former Employer	App	21 May 2020	25 MAY 20
A5	Statutory Declaration of Applicant’s Father	App	Undated	25 MAY 20