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

XXBN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4238 (23 October 2020)
Division:GENERAL DIVISION
File Number: 2020/4685
Re:XXBN
APPLICANT

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

DECISION
Tribunal:Member Rebecca Bellamy
Date:23 October 2020
Place:Brisbane

The reviewable decision is affirmed.
.............................[SGD]...................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class BS subclass 801 partner (Residence) 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 – domestic violence – risk of re-offending – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Ahori and Minister for Immigration and Border Protection [2017] AATA 601
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
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
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Rebecca Bellamy
23 October 2020
THE ISSUE BEFORE THE TRIBUNAL

The Applicant is a 28 year old citizen of Lebanon who has lived in Australia since he was 22 years old.
On 27 March 2019, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s Class BS subclass 801 partner (Residence) Visa (“visa”) under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full time custodial sentence. On 10 April 2019, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”). On 29 July 2020, the Respondent decided not to revoke the cancellation.[1]
[1] Exhibit G1, G Documents, G2, page 27.
The Applicant subsequently lodged an application for review in this Tribunal on 4 August 2020. The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
The hearing of this application proceeded on 6 October 2020. The Applicant, his wife, and Alison Cullen, psychologist, gave evidence by video conference. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”. That material included three journal articles relating to domestic violence recidivism that were obtained by the Tribunal. Prior to the hearing both parties were informed that I proposed to inform myself of the parts of the articles that related to the risk and incidence of repeated domestic violence offending as far as that information related to this matter. Neither party objected to that material being admitted into evidence.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
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.
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:[2]
“…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…”[3]
[2] [2018] FCAFC 151.
[3] 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.[4]
[4] 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”.
The Applicant was sentenced to a term of imprisonment of 18 months with a non-parole period of nine 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.[5] Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. He cannot rely on
[5] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
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”) has application.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 6.3 of the Direction contains several principles that must inform a decision maker’s application of the considerations in paragraphs 7 and 8.
Paragraph 7(1) of the Direction provides that:
Informed by the principles in paragraph 6.3 above, a decision-maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[6]
[6] The Direction, sub-paragraph 7(1)(b).
Paragraph 8(1) of the Direction provides that:
Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...
Part C provides for the decision-maker to take into account “Primary Considerations”[7] and “Other considerations”.[8] The Primary Considerations are set out in paragraph 13.(2) of the Direction (contained in Part C) and they are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
[7] The Direction, paragraph 13.
[8] The Direction, paragraph 14.
The Other Considerations are set out in paragraph 14(1) of the Direction (contained in Part C) and they are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[9]
“…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.”[10]
[9] [2018] FCA 594.
[10] Ibid, [23].
BACKGROUND AND OFFENDING
The Applicant was born in September 1992. He obtained a bachelor degree in Mechanics in Lebanon[11] before coming to Australia in March 2015, at the age of 22,[12] on a student visa.[13] His parents and four of his siblings remain in Lebanon while one sibling lives in Dubai.
[11]    Exhibit G1, G Documents, G2, page 98.
[12]    Exhibit G1, G Documents, G2, page 98.
[13]    Exhibit R1, Tender Bundle, page 77.
While studying in Australia, the Applicant met “Ms A”. Ms A had a daughter from a previous relationship, born in August 2015. In October 2016 they married[14] and lived together in a granny flat on Ms A’s parents’ property. Ms A’s mother, step-father and their children occupied the main dwelling. The Applicant started a landscaping business in 2017 and worked in that business full-time. The couple had a son in May 2018 and a daughter in July 2019.[15] By the time he was incarcerated, the Applicant owned two cars, a truck, a bobcat and an excavator.[16] These were all fully paid off.[17]
[14]    Exhibit G1, G Documents, G2, page 121.
[15]    Exhibit A3, Report of Alison Cullen, page 3.
[16]    Exhibit G1, G Documents, G2, page 99.
[17]    Transcript, page 53, line 14; Exhibit A3, report of Alison Cullen, page 4.
In the two years the Applicant lived with Ms A, there were multiple calls to the police with respect to alleged verbal conflict or violence between the Applicant and Ms A. These are recorded in New South Wales Police case notes that were obtained by the Respondent under summons. In addition, there were two episodes of domestic violence that resulted in the Applicant being convicted of (multiple) violent offences. The facts of these are set out in the police case notes and other documents including court sentencing remarks and an appeal decision.
20 January 2017
Around 12.12pm on 20 January 2017, Ms A called triple 0 stating that she wanted an AVO against the Applicant and that she was in Punchbowl. She did not provide further details and the call dropped out. Police attended her home to conduct a welfare check however she was still in Punchbowl. Police contacted her and she said she no longer wanted the AVO and everything was “ok”. She later attended the police station as instructed by police and they did not see any injuries on her.[18]
30 April 2017
[18] Exhibit R1, Tender Bundle page 17.
Police attended the Applicant’s residence on 30 April 2017 in response to a call from Ms A alleging an assault. When police arrived, Ms A told them she and the Applicant were arguing about the amount of money he was spending on motor vehicles. The argument went for some time until Ms A decided to call police out of anger towards him. Both Ms A and the Applicant denied that the argument had escalated “past verbal”. Police did not observe any damage or injuries. When police questioned Ms A about her initial allegation of assault, she said "I was angry at him and exaggerated. I am sorry I lied about what happened."[19]
16 July 2017
[19] Exhibit R1, Tender Bundle pages 16 to 17.
On 16 July 2017, Ms A contacted police. She told them that she and the Applicant had argued and the Applicant had punched her an unknown number of times to the right side of her face. The Applicant had then left. Police observed slight bruising on Ms A’s temple. She told police that after she initially contacted them she had called back to say they were no longer required but she had been told that the police had to attend a report of domestic violence. Ms A refused to make a statement or attend court. When police asked her why she had contacted them she said it was "a scare tactic".
The police told Ms A they would apply for an Apprehended Domestic Violence Order (“ADVO”) on her behalf. Ms A said she did not want an ADVO and would not come to court as she felt that it would ruin her relationship with the Applicant and only cause more problems.
The following day the Applicant attended the police station in relation to the incident. He was cautioned and stated that "nothing happened, it was just an argument". Police served an ADVO on him and explained it.[20] The ADVO’s expiration date was 18 January 2018 and its conditions included that the Applicant was not allowed to do any of the following to Ms A or anyone in a domestic relationship with Ms A: assault or threaten; stalk, harass or intimidate; intentionally or recklessly destroy or damage any property that belongs to or is in the possession of those persons.[21]
[20] Exhibit R1, Tender Bundle, pages 15 to 16.
[21] Exhibit R1, Tender Bundle, page 14.
In the hearing the Applicant denied having assaulted Ms A.[22] He also initially denied having gone to the police station and having an ADVO served on him. He then conceded that he may have gone to the police station, saying it was a long time ago and he could not remember, but that he did not assault Ms A.[23]
[22] Transcript, page 15, lines 13 to 17.
[23] Transcript, page 15, line 28 to page 16, line 25.
Ms A was asked about this incident. She said she had lied to the police about the Applicant hitting her.[24] In relation to the bruising on her face, she said:
“So I actually already had a bruise on my face and I actually just told the police that it was from my husband but it ended up it wasn't. And it wasn't actually a bruise, it was just like a scrape (indistinct).”[25]
[24] Transcript, page 42, lines 9 to 11.
[25] Transcript, page 42, lines 15 to 19.
She gave the following additional evidence about her call to the police:
TRIBUNAL: Did you say that you had got them out as a scare tactic?
WITNESS: Yes. Like I was saying earlier I used to use it as like a power tool against my husband.
TRIBUNAL: The police records say that you said you would not come to court because you thought it would ruin your relationship with your husband?
WITNESS: Yes, because then we won’t be able to live together and (indistinct), you know, happily married. Why would I want to jeopardise that over an AVO that I never wanted (indistinct).
TRIBUNAL: I see, so you thought it was – that being physically separated from each other would ruin your relationship?
WITNESS: Yes, (indistinct) why I didn't end up going to court, so I think I would still live with him but for (indistinct) in mind keep the no harassment stalking [protection] the number 1 on the AVO orders.
TRIBUNAL: But you didn't think calling the police on him and making a false allegation might ruin your relationship with him?
WITNESS: Well, at the time I was very – I wasn't very clear minded, you know.[26]
31 December 2017
[26] Transcript, page 42, lines 25 to 43.
According to police records and a Facts Sheet that was provided to the court, on 31 December 2017, when Ms A was 21 weeks pregnant, the Applicant breached the ADVO that was taken out in July 2017. This occurred at a New Year’s Eve celebration.
The Applicant and Ms A had been arguing earlier in the day. The Applicant asked Ms A to pick up his belongings in the backyard, which he refused to do. She said "I'm not picking up your stuff." The Applicant threw a child’s plastic chair at Ms A. She ducked and the chair missed her. She picked up the chair and said, "How would you like it if I threw it at you." The Applicant stood up and walked towards Ms A. Other family members, including Ms A’s younger sister, “Ms B”, then intervened. Ms B had her hands extended to assist in separating the Applicant from Ms A. He turned to Ms B and struck her in the face with an open hand, causing her pain. He grabbed her hijab, trying to pull it off. Ms B’s partner pulled the Applicant inside the granny flat. The Applicant walked into the kitchen and picked up a knife. Ms B saw the knife and ran to the front of the property and called police. Her partner restrained the Applicant in a bear hug. The knife came loose and other family members separated all the parties and removed the knife. The events were captured on CCTV footage.
The police arrested the Applicant at the scene and took him to the police station. He claimed that he was only arguing with his wife, that Ms B hit him first, and that he only pushed her in self defence. Police showed the Applicant the video of the incident which contradicted his version. The police noted that the Applicant struggled to keep to his version once the video was shown.[27]
[27] Exhibit R1, Tender Bundle, pages 13 to 14.
The following day, the Applicant pleaded guilty in the Local Court to two offences of common assault and one offence of contravene prohibition/restriction in AVO (Domestic).[28] He was sentenced to a 12 month good behaviour bond for each offence.[29]
[28] Exhibit G1, G Documents, G2, pages 36 to 38.
[29] Exhibit G1, G Documents, G2, page 38.
There are no sentencing remarks before me, but the Facts Sheet provided to the court[30] repeats the facts as set out in the police records.
[30] Exhibit R1, Tender Bundle, pages 63 to 65.
In the present proceedings the Applicant admitted that he threw the chair but said he did not throw it at Ms A but “next to” her.[31] He said:
“It’s a small pink chair for kids. It’s like less than one kilo and my wife was far away. It’s not like next to me, it was like four metre away from me and I chucked that chair and I didn't get her, like it was far away from her….Just to scare her.”[32]
[31] Transcript, page 16, lines 36 to 38.
[32] Transcript, page 33, lines 1 to 8.
The Applicant also maintained that he only pushed Ms B, saying “I said I didn’t slap her, I pushed her away from me with my open hand”.[33]
[33] Transcript, page 17, lines 9 and 10.
Counsel for the Applicant queried the reliability of the police records and the Facts Sheet on the basis that the author was not available for cross examination. The police notes make it clear that the police were not present when the assaults occurred and that they obtained accounts from witnesses and CCTV footage. An application to the court for a Provisional AVO stated that police had taken statements from Ms A, Ms B and Ms B’s partner.[34] Even if it were possible and practical to have the author of the police record give evidence, that person could only give evidence about what they were told by these witnesses and what they saw on the CCTV footage.
[34] Exhibit R1, Tender Bundle, pages 56 to 57.

Ms A made several statements in support of the Applicant, pleading for his visa to be returned to him, and she gave oral evidence. In relation to this incident, she said:
WITNESS: No, he was just throwing it in our direction but he wasn't actually throwing it at us.
MR REILLY: I'm sorry, he threw it at you and he slapped your sister in the face?
WITNESS: Yes, that is correct. It was more of a defence mechanism, it wasn't really – he (indistinct), you know, be violent towards her.[35]
[35] Transcript, page 41, lines 21 to 27.
As much as Ms A sought to minimise and excuse the Applicant’s conduct by drawing an, in my view insignificant, distinction between throwing a chair in her direction and throwing a chair at her, and characterising a slap to her sister’s face as a defence mechanism, her evidence is that the Applicant threw a chair in her direction and slapped her sister in the face.
Ms B provided a letter of support[36] in which she spoke positively about the Applicant and said:
“The alligations (sic) that were made of [the Applicant] are wrong. I never with my eyes saw a knife and nor does it show on CCTV. I assumed that he had a knife in his hand because he was holding something. I mis-read what I saw and what I thought was a knife was his phone”.
[36] Exhibit G1, G Documents, G17, page 368.
Significantly, Ms B did not deny that the Applicant hit her or that he threw a chair at Ms A.
The Applicant pleaded guilty to common assault and contravention of an ADVO arising from the act of throwing a chair at Ms A, and common assault arising from the act of hitting Ms B in the face with an open palm. I am satisfied that he in fact did those things. These are not matters about which the Applicant could realistically have been mistaken. I am satisfied that he was dishonest to the police and to the Tribunal about these assaults. Further, it speaks to the Applicant’s attitude about domestic violence that when he denied having thrown the chair at Ms A, he said he threw it “Just to scare” her, as though that would have been acceptable.
The Applicant denied that he picked up a knife.[37] I find it highly implausible that Ms B, her partner and the family members who “removed the knife” from the Applicant mistook a mobile phone for a knife. However, the Applicant was not convicted of being in possession of a knife and there is no allegation that he threatened or attacked anyone with a knife, so I do not consider the allegations regarding the knife to be material.
[37] Exhibit G1, G Documents, G2, page 102.
The Applicant denied knowing that he was subject to an ADVO when he committed these assaults.[38] I find that implausible given the police evidence that he went to the police station and the police explained the ADVO to him, and his concession that he attended the police station. Further, the Applicant pleaded guilty to breaching the ADVO. I am satisfied that he knew he was breaching the ADVO when he threw the chair at Ms A and hit Ms B.
[38] Transcript, page 17, lines 38 to 42
Following these assaults, police obtained a Provisional AVO followed by an ADVO listing Ms B as the protected person.[39] The protected persons also included anyone with whom Ms B had a domestic relationship.
[39] Exhibit R1, Tender Bundle, pages 53 to 57 and 66 to 68.
The Applicant said it was not only the argument about picking up his things that he and Ms A argued about. He said they were arguing about his work shoes and later he asked her to turn the music down out of consideration for their elderly neighbour and she did not initially understand his request. Things then quickly escalated.[40] I accept this evidence.
11 July 2018
[40] Transcript, 36, lines 20 to 34; A3, page 4.
On the morning of 11 July 2018, the police attended on Ms A after receiving a triple 0 call which was not answered when the triple 0 operator called back. Ms A told police that she and her husband had an argument the previous night due to the “stress of the new born and about dinner”. She said it did not get physical or involve threats.[41]
22 October 2018
[41] Exhibit R1, Tender Bundle, page 12.
On the evening of 22 October 2018, police attended the Applicant’s residence. Ms A was the informant. She told police that she had a verbal argument with the Applicant and at the height of the argument the Applicant had said “You better shut up before I hit you”. The argument continued and Ms A locked herself in her room while the Applicant left. Police noted that in giving her version of events, Ms A was extremely vague and changed her version several times. The report notes that “Despite being pressed by Police, she never spoke about any shoe throwing.” It appears from this statement that there may have been a mention of shoe throwing in the initial call to triple zero which Ms A then did not back up. Ms A declined to make a statement and did not appear to be injured. The report stated that the police had doubts about the validity of her version. They spoke with the Applicant who said they had a verbal argument but denied threatening Ms A and said she was the aggressor in the argument.[42]
[42] Exhibit R1, Tender Bundle, page 12.
In the hearing the Applicant was asked if he threatened to hit Ms A in the following exchange:
MR REILLY: All right. Now, next the police were called in October 2018, and your wife apparently said that you had told her that she better shut up before you hit her.
WITNESS: Yes, but I didn’t hit her.
…
MR REILLY: …All right. Now I have moved onto October 2018. The police say that they attended the house, and your wife had said that you had threatened to hit her?
APPLICANT: October 2018.
MR REILLY: Can you tell us anything about that?
APPLICANT: You know, it’s just an argument. An argument between me and my wife.
MR REILLY: All right.
APPLICANT: But I never like, pushed - - -
TRIBUNAL: [Applicant] are you saying - did you say that, though? Did you make that threat?
APPLICANT: I didn’t hit my wife. Only the last incident.
TRIBUNAL: No, I am asking did you say that you would hit her?
APPLICANT: No, no, I didn’t.
TRIBUNAL: Are you saying that you didn’t threaten - I understand you said that you didn’t hit her. But I am asking, did you make the threat to hit her?
APPLICANT: Yet, but honestly - honestly, I can’t remember. I can’t remember if I said it or not. But I don’t think so. It’s a long time ago, and I’m not going to - like, I’m not going to remember sentence or - it’s a long time ago. But I don’t think I said that.[43]
[43] Transcript, page 19, line 30 to page 20, line 34.
This incident happened only two years ago, and Counsel for the Respondent was not asking the Applicant to recall the kind of statement that is not particularly memorable. He asked him to recall whether he threatened to hit his spouse. It stretches the limits of credibility that the Applicant does not remember whether or not he made that threat, unless it was not unusual for him to make such threats. Either he did make the threat and likely remembers doing so or it was not unusual for him to make such threats.
Ms A was equally evasive when she was asked if the Applicant had made that threat in the following exchange:
MR REILLY: All right, well, I put it to you that you did tell the police that your husband had threatened you?
WITNESS: Well, he never hit me, there was no actual violence. There was verbal standard I guess in all marriages.
TRIBUNAL: [Ms A], could you answer the exact question, please, that was asked?
WITNESS: Sorry, what’s the exact question?
TRIBUNAL: The exact question was it was put to you that he threatened you, that he said he would – shut up before he hits you?
WITNESS: No, he never said that.
MR REILLY: Well, the police say that that’s what you told them?
WITNESS: Yes.[44]
[44] Transcript, page 43, lines 24 to 34.
Ms A did agree that she locked herself in her room.[45] Less than one month later, the Applicant did hit Ms A and he inflicted other assaults on her.
16 and 17 November 2018
[45] Transcript, page 43, line 16.
On 16 November 2018, when the Applicant’s son was five months old and Ms A was six weeks pregnant, the Applicant assaulted her in their home. This assault breached the ADVO that was in place to protect Ms A’s sister, Ms B, and other persons with whom Ms B had a domestic relationship.
According to the police records,[46] the assaults started at around 4.30pm when Ms A complained of having breathing difficulties and asked the Applicant to take her to the doctor. An argument ensued and Ms A went to her bedroom to calm down. After a short time, she decided to go to the doctor. The Applicant stopped her from taking the family vehicle and took her hand bag to stop her from leaving. Their son was asleep in his bedroom at that time.
[46] Exhibit R1, Tender Bundle, pages 9 to 10.
Ms A subsequently left through the front door, however the Applicant, using both hands, pushed Ms A and she fell to the ground. The Applicant attempted multiple times to lift Ms A up from behind by grabbing her upper arms. He then grabbed her left hand and dragged her toward the front door of the granny flat. This caused bruising on Ms A’s upper arm. A short time later, the Applicant ran from the granny flat toward Ms A and with his right open hand, hit her across her head.
Ms A tried to protect her head by covering it with both of her arms. The Applicant then lifted her by her hair and dragged her toward the front door of the granny flat and struggled to move her inside. I note that the Applicant subsequently denied dragging Ms A by her hair.[47] The Applicant began hitting Ms A with both his open palms. Ms A lay on the ground, and the Applicant dragged her by her left arm inside the granny flat.
[47] Transcript, page 22, lines 10 to 11.
Ms A sat in a room within the granny flat. The Applicant exited the granny flat and walked toward the external window of that room. He engaged in an argument with Ms A, then spat at her through the flyscreen before returning inside.
Once back inside, the Applicant again started to hit Ms A on the head. The Applicant then placed Ms A against a wall in the lounge room and choked her by placing his right hand around her throat for approximately 10 to 15 seconds. Ms A told police that his grip was very hard on her neck and she tried to resist but was unsuccessful. The Applicant let go of her and started to walk towards her daughter’s bedroom. I note that by the time the Applicant was convicted and sentenced in relation to this episode, the prosecution had withdrawn the allegation that the Applicant choked Ms A. However, the sentencing Magistrate found that he had put his hand on her neck with a hard grip.
The Applicant followed Ms A and struck her on the lower right side of her back. He then forced her, face forward, onto the ground and pushed his foot on to the lower section of her back causing her to feel pain and cough repeatedly. As a result, their baby son awoke. The Applicant and Ms A argued about who would comfort him, with Ms A feeling unable to do so because she was distraught and in pain, and the Applicant insisting that she do it.
Ms A then attempted to walk out the front door. The Applicant again grabbed her around the throat applying pressure and attempted to choke her and said, "go to your son!". Ms A did not resist this time due to her attempts at resistance not working the first time. I note, as above, that the allegation of choking was not ultimately pursued by the prosecution. The Applicant then pushed Ms A toward their son's room.
Soon after, Ms A was able to exit the granny flat and run to the road yelling for help, however no one came to her aid. The Applicant followed Ms A onto the street where they engaged in an argument before he returned to the granny flat. The Applicant left the location soon after.
An ambulance arrived to treat Ms A and she was conveyed to hospital where she was treated for bruising to her left upper arm and right side of her throat, and for breathing difficulties. She was discharged later that night. The Applicant went to the hospital but Ms A did not reveal to anyone that the Applicant had inflicted her injuries.
The following day, around 2:20pm, the Applicant, Ms A and their baby son were in their family vehicle with the Applicant driving. Ms A asked to go to the doctor due to breathing difficulties. They argued and Ms A asked the Applicant to stop the vehicle. The Applicant refused and Ms A said she would "jump out". The Applicant again refused to stop. Ms A then opened the vehicle door and jumped from the moving vehicle. An ambulance took Ms A to hospital. Ms A told police she had jumped out of the vehicle of her own volition. She then disclosed the assaults that happened the day before. The police obtained CCTV footage from the house of that depicted the actions of the Applicant toward Ms A while they were between the rear of the main dwelling and the granny flat, which corroborated Ms A’s version. The Applicant admitted to assaulting Ms A but denied choking her.
The Applicant was ultimately convicted of:
·     seven offences of common assault;
·     one offence of assault occasioning actual bodily harm; and
·     two offences of contravening a prohibition/restriction in a AVO (domestic).
The CCTV footage was played to the court and photos of Ms A’s injuries were tendered. The learned sentencing Magistrate sentenced the Applicant to two years’ imprisonment with a non-parole period of 14 months, which was reduced to 18 months imprisonment with a nine month non-parole period on appeal. As the Applicant had breached the good behaviour bond he was subject to for previously contravening a prohibition/restriction in a AVO (domestic), he was “called up” and re-sentenced to a community corrections order for that. The Magistrate also made an AVO with a term of three years protecting Ms A from the Applicant and he advised the Applicant that he could be imprisoned for up to two years if he breached it.[48]
[48] Exhibit G1, G Documents, G2, pages 50 to 52.
In sentencing the Applicant (at first instance on 27 November 2018) the learned sentencing Magistrate made the following relevant findings and observations about the offending:
“Grabbing around the throat's not simply placing his hands there. He is applying a hard grip on her neck, she tried to resist, she was unsuccessful in doing so, it's in my view above midrange.”[49]
“She attempted to walk out the front door and he grabbed her around the throat, applying pressure, and some of that is visible on the footage, and said to her, ‘Go to your son’.”[50]
“There is a very strong need for both general and specific deterrence.”[51]
“In terms of conditional liberty and the offender's criminal record, he was on three s 9 bonds for contravening an AVO and two counts of common assault. I have read the facts in those matters and note that his wife that was the victim of the current matters was a victim in one of the previous common assault matters. The facts in those previous matters are serious forms of the offences, though I note that prior to those matters, the offender had no criminal convictions. The commission of further offences whilst on conditional liberty is an aggravating factor…I note that his partner was pregnant and it appears that the offender was aware of this fact. There is a strong level of violence perpetrated upon a woman who is clearly incapable of defending herself. I note that the offence occurred in the home of the victim.[52]
[49]    Exhibit G1, G Documents, G2, page 45.
[50]    Exhibit G1, G Documents, G2, page 54.
[51]    Exhibit G1, G Documents, G2, page 47.
[52]    Exhibit G1, G Documents, G2, page 54.
In relation to prospects of rehabilitation, His Honour said:
“It is conceded that [the Applicant’s] prospects of rehabilitation are affected by his significant anger issues. I agree with that and would assess his prospects of rehabilitation as being guarded.”[53]
[53] Exhibit G1, G Documents, G2, page 54.
As I have noted above, the Applicant appealed the sentence. The appeal decision includes the following observations by the learned appeal Judge:
“Almost every day in this court I see that those who live in an association with others seem to think that it is alright to act towards them in a way that they would not act to somebody they did not know. The extent of the actions by the offender in this case to somebody whom he professed to be in a relationship and loved shows that nothing that anyone can do about media presentations, advertising, statements by politicians, throwing money at the problem makes the slightest bit of difference when somebody with whom someone is in a relationship decides that they want to act inappropriately…There is not any question that when one looks at the totality of the offending in this case it is a very high level of offending.”[54]
[54] Exhibit G1, G Documents, G2, pages 63 to 64.
The Applicant gave the Tribunal the following version of the events of 16 November 2018.
“As I told you, I told you I got back from work. It was a hard day, stress at work. She said she wanted to go out. I told her I can’t, I’m so tired. Probably tomorrow or after tomorrow. She said no, we should go today… She said - so she said that I have anxiety, I can’t breathe, take me to hospital. I said no, you’re lying. You have nothing. You just told me you wanted to go out. And she said, no, I have anxiety. I want to take the car and get out. I told her no, you can’t. If you have anxiety or if you have problem, call the ambulance and the ambulance will come. She said no, I am taking the keys, and she took the keys and run outside. I followed her. I took the keys off her and I tell her, like, just go inside. After that, and I gave her my phone. I tell her, here, call the ambulance. She looked at my phone and she smashed it in the floor. She broke my phone. I didn’t do anything. Then she went outside. I was like, stressing about work because all my business, all the jobs, everything on my phone. All the emails, everything on the phone. So I lost everything. She went outside and she start screaming. I went - I followed her and I started like, taking her inside, because she was screaming. I don’t want anyone to hear her. Yes, so I dragged her on the floor and she said - I don’t know what she said. She said something, so I slapped her with my open hand. And then I take her inside, but the scarf was - she was wearing a scarf, and the scarf was in my hand. So when I dragged her on the floor, the scarf went off on her hair. So the police said that I drag her from the hair, but I didn’t drag her from the hair. I went inside and I tried to calm her down. She start screaming. She went to - she went to jump from the window. I shut the window and yes, I got charged for spitting. Spitting to her. Yes, I spit on her. And I went outside, I got out from the house, came back, she was asleep.
…
MR REILLY: She was pregnant when you hit her?
WITNESS: Yes, she was pregnant. Yes.
MR REILLY: And you knew that?
WITNESS: I didn’t her on the stomach, nothing. I didn’t do anything. I just slapped her.
MR REILLY: But you knew she was pregnant?
WITNESS: Sorry?
MR REILLY: You knew she was pregnant?
WITNESS: Yes, I know. Yes, I know she was pregnant, but I didn’t hit her hard. I was like, hitting her on the top. I didn’t hit her on the stomach or anything.”[55]
[55] Transcript, page 21, line 30 to page 23, line 10.
The version Ms A gave to the Tribunal was:
“Yes, so me and my husband did get into an argument, it was me being hormonal, I was pregnant. And I wanted to go out, change the scenery. My husband had to come back home from work exhausted. He does long shifts, I think 10 hours. So I wasn't very considerate towards his working for us and I still wanted to take us out on top of it. So then I started, you know, saying “I need to go to doctor”. This was all just for him to take me out, like I wanted him to physically get in his car, sit next to me in the car and just take me anywhere even if it was to the doctor. And he told me “No, stay inside, you’re not having an anxiety attack” and I said to him “I am, I am, I am” and he said “No, you’re not and if you really are call the ambulance here. There’s no need for you to go to the doctor and drive there yourself, if it’s true what you’re saying. You stay here and you call the ambulance in front of me”. So then he gave me his phone and I crashed it. And then that’s when, you know, he started, of course, getting angrier and angrier and then afterwards I wanted to start escaping, so I'd take the keys and then I'd try to run off with them so I could get out of the house. And he said to me – he came and followed me, dragged me back in, like it was just my arm at the first time. And then said to me “Stay inside” and then I said “No, I want to go”, you know, he tried to calm me down and go inside the house and then I didn’t want to calm down, so I went back out again, the same thing happened, he told me to go back in. And then the third time it started getting a bit more aggressive and that’s when I believe he was – he grabbed me by my clothes and pushed me inside. And as he was pushing me inside I was on the ground and that’s when he hit me a few times. It wasn't painful or anything because it was only in the face, like this part of his hand, it wasn't actual punches. And then, yes, that was pretty much – and I was in tears and I called the police.”[56]
[56] Transcript, page 43, line 43 to page 44, line 23.

The Applicant also described what occurred the following day:
“The next day I took her to - I woke her up and I told her, let’s go for lunch. I want to say sorry, you know? So I woke her up, I told her let’s go for lunch. She took my son and we went outside. We went to a restaurant in Guildford and we was eating. I told her like, just eat. I didn’t say anything. Like, I don’t know, I was like thinking, like I meant I don’t want to say sorry, but I am saying sorry in a different way. So I told her just eat, and she starts screaming, you don’t know how to say sorry. And she starts screaming in front of people. She stand up and she went outside, outside the restaurant. I stayed there for like, five minute, and then I followed her to the car. I took her and I drive back to - I drive back home, and on the way she told me I have anxiety, I can’t breathe, I want to go to hospital. (Indistinct) we were going to the hospital, taking her to the hospital. I told her, look, if you want to stay like this, we better separate and I’ll go and marry someone else. She said, you want to marry someone else? And she opened the door and jumped from the car. And I parked on the side of the road and I went out and saw my wife, like, her hand, everything, like her face, scratches, everything. I had my son in the car. We called the ambulance. I waited for the ambulance to come and the ambulance came and took her to the hospital. I took my son to my cousin’s house. He was living around the corner next to the - what happened, the incident that happened. I was staying there, and after like, one hour the police came and dragged me in. I went to gaol from that time.”[57]
[57] Transcript, page 22, lines 16 to 37.
Ms A’s version was:
“Yes, so then the next day he decided to apologise to me in his own way by taking me out to lunch, like a brunch actually. And I was still very closed off, I didn't want to forgive him, which I still had a bit of resentment. And then when we were at lunch he kept telling me “Please eat. I'm sorry”. And then I didn't want to eat and (indistinct) I don’t want your forgiveness whatnot. And then he goes to me “Just eat. This is my way of apologising”. And then I was very stubborn and then I decided to, you know, throw another tantrum, a hormonal one, and I would leave. I left, went back to the car and I didn't have the key with me, so I just waited there and then I waited for him to follow me. And then on the way home we were talking and whatnot and he said “This isn't right, we shouldn’t stay like this, it’s not good” and I was like “What you don’t want me anymore?” And then he’s like “Well, it’s better if we get separated and find our own paths if you are going to stay like this”. And then that’s when I got – no, sorry, prior to that I said to him “No, no, I can’t deal, I need you to take me to the doctor, I'm having an anxiety”. And then he was on his way to taking me there and that’s when he said “If we’re going to stay like this this isn't right, it’s not healthy, it’s not good, that we will need to separate” and then that’s when I threw myself out the car.”[58]
[58] Transcript, page 44, lines 23 to 43.
When Ms A was asked why the Applicant’s threat to break up with her resulted in her jumping out of the car, she said:
“I don’t even understand to this day why I did something like that. It was I guess when you love someone so much you don’t want to imagine yourself without them and it’s either with him or with no one. I don’t know how to explain it, like it’s more about a cause of love. I don’t know how else to put it.”[59]
[59] Transcript, page 45, lines 31 to 36.
Ms A acknowledged that her son was in the back seat of the car at the time.[60] I note that she was also pregnant at the time.
Reports of unprosecuted domestic incidents
[60] Transcript, page 45, lines 37 to 39.
Ms A was asked about her numerous calls to police in the following exchange:
MR REILLY: Well, you obviously had concern for your safety on those occasions?
WITNESS: No, I didn't.
MR REILLY: Well, that’s not true, is it?
WITNESS: My husband and I most of the time were just having verbal arguments and I (indistinct) shut him off because I don’t know how to deal with arguing, I'm very sensitive. I would just find comfort in calling the police. It wasn't anything that needed the police assistance but for some reason I would just find comfort in calling them. I felt like it was my power and I could control him with calling the police on him.
MR REILLY: Well, that sounds rather hard to believe… [Ms A] We know from the police records that on the third time they were called out to your house in July 2017 they said that you had said that you’d been punched and they said that they saw bruising on your face?
WITNESS: So I actually only had a bruise on my face when a different – there was not violence at all, I actually had hurt myself and then I told the police that it was from my husband.
MR REILLY: So you lied to the police?
WITNESS: Yes, basically.
MR REILLY: All right. And you say you’re giving honest evidence today however to the Tribunal?
WITNESS: Yes.[61]
[61] Transcript, page 40, line 37 to page 41, line 15.
I am sceptical of Ms A’s evidence that she did not feel unsafe on the occasions when she called police given her evidence that she “found comfort” in calling them and she did it to control the Applicant when they were arguing. All through her evidence, Ms A sought to minimise or excuse the Applicant’s violent conduct, for example pointing out that “it wasn’t actual punches” to her face. She also denigrated herself for not being prepared to forgive the Applicant when he demanded that she forgive him the day after he attacked her, describing herself as having been stubborn and having thrown a tantrum.[62] The two domestic violence episodes that were prosecuted had been captured on CCTV. There is no evidence that Ms A has ever co-operated with a prosecution against the Applicant beyond making an initial allegation. In relation to the assaults in November 2018, when asked if she cooperated with the police, she told the Tribunal that she just wanted revenge but did not want the Applicant to be convicted and imprisoned.[63]
[62] Transcript, page 44, lines 30 to 33.
[63] Transcript, page 53, lines 34 to 46.
It is quite possible that some of Ms A’s reports to police, that were not ultimately pursued, were genuine. On the other hand, she is not a witness of credit: it is unavoidably the case that she either made false reports to police or, if those initial reports were true, she gave false evidence to the Tribunal. Accordingly, I regard anything she has said with caution. Nor is the Applicant a witness of credit: he has demonstrated a preparedness to falsely deny and/or downplay acts of domestic violence. Weighing all of the evidence, I am not prepared to accept that the Applicant committed any acts of physical violence apart from those that resulted in a conviction. It is however apparent that the Applicant’s relationship with Ms A involved conflict that sometimes left Ms A feeling unsafe, and I am satisfied that he threatened to hit her on at least one occasion.
There is a Corrective Services file note dated 17 January 2019 that purports to record information provided by the Applicant about the offending and other matters. The Applicant disputed the accuracy of the file note[64], and I do not consider that its contents add materially to the evidence before me. In these circumstances I have no regard to it.
Unlicensed driving
[64] Transcript, pages 28 to 30.
On 1 February 2019,[65] the Applicant was driving his truck, used for his business, when he was stopped by police for a licence check. He produced an international driver’s licence despite having lived in Australia for nearly four years. When asked how long he had been in Australia he said "a few years". He said he did not know he had to have a New South Wales driver’s licence in order to drive. The Applicant subsequently pleaded guilty, and was convicted of, “never licensed person driving vehicle on the road (first offence)”. He told the Tribunal that he subsequently obtained a New South Wales Driver’s licence. There is no evidence before me to suggest that the Applicant has a disregard for road rules. I consider this to be a minor infraction that does not affect my application of the Direction.
[65] Exhibit R1, Tender Bundle, page 6.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering 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 in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to 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.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, including:
(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)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or Government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to paragraph (b) above, the sentence imposed by the Court 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) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
The Applicant committed a violent offence against his female partner on 16 November 2018. This alone means the offending must be viewed very seriously in accordance with factors (a) and (b) of paragraph 13.1.1(1) of the Direction. The Respondent’s Statement of Facts, Issues and Contentions directed me to the words of Senior Member Sosso (as he was then) in Ahori and Minister for Immigration and Border Protection [2017] AATA 601:
“domestic violence is a very serious matter. In no way can violence in a domestic situation by one partner against another be trivialised or downplayed. The implications of such violence on the children, broader family and friends of the parties involved can be serious and long lasting”.[66]
[66] at paragraph 53.
I respectfully agree. What is more, the domestic violence in 2018 was a sustained attack in which the Applicant prevented Ms A from leaving, dragged her causing bruising, hit her face several times, hit her in the back, pushed her to the floor and pressed his foot into her back, put his hands around her neck and applied pressure that left bruising, and spat at her. He said he attacked her because she was screaming. He subsequently told a psychologist that he slapped her because she was screaming and making a commotion in front of neighbours and family members.[67] When their baby woke and needed comforting, he did not stop the attack but instead put his hands around Ms A’s neck and then pushed her toward the baby because she did not obey him when he told her to comfort the baby.
[67] Exhibit A3, Report of Alison Cullen, page 9.
At the time, the Applicant was under a court ordered obligation to be of good behaviour following a previous violent offence against Ms A and a previous violent offence against her sister. He had previously been subject to an ADVO listing Ms A as the protected person and, at the time he was subject to an ADVO listing Ms B and any persons in a domestic relationship with her as protected persons. The Applicant knew that Ms A was pregnant at the time of the attack. Yet he pushed her to the ground and pushed his foot into her back. He attacked in her own home, where a person has an expectation of being safe, and he kept her there against her will. Ms A was vulnerable by virtue of being pregnant and at a physical disadvantage.
Ms A had also been pregnant – 21 weeks[68] – when the Applicant committed the prior assault against her. Although the chair was small and plastic, there was obvious potential for harm had it struck Ms A at speed or caused her to fall. This assault is not as serious as the assaults on 16 November 2018 but nor is it minor. The Applicant then hit Ms B in the face with an open palm as she was trying to protect Ms A. Under the Direction these assaults must be viewed as very serious.
[68] Exhibit R1, Tender Bundle, page 13.
A sentence of imprisonment is a last resort in the hierarchy of sentencing options available to a court. When the Applicant appealed the severity of his sentences for the 16 November 2018 offending, the learned Appeal Judge considered whether a sentence other than full-time custody was appropriate and he decided that in the negative.[69] Even having been persuaded that the Applicant “has shown signs that he seeks to reform”[70] His Honour imposed a lengthy term of imprisonment (18 months) and a substantial non-parole period (nine months). The head sentence and non-parole period are indicative of serious offending.
[69]    Exhibit G1, G Documents, G2, page 65.
[70]    Exhibit G1, G Documents, G2, page 64.
The Applicant perpetrated domestic violence resulting in convictions twice in a twelve month period between December 2017 and November 2018. The second episode was markedly more serious than the first, demonstrating a trend of increasing seriousness.
The cumulative impact was that more than one female was physically harmed by the Applicant.
I do not consider factors (g) to (i) of paragraph 13.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 13.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.
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:
·paragraph 13.1.2(1)(a) requires a decision maker 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
·paragraph 13.1.2(1)(b) requires a decision maker 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 re-offending.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The nature of harm should the Applicant engage in further domestic violence offending includes physical injury, emotional harm and psychological harm to the primary victim. Depending on whether the offending is repeated once or many times, there may be others who are harmed psychologically or emotionally including family members who know their loved one is being abused and children who see their parent threatened and abused and/or come to see domestic violence as normal.
Further, I am not satisfied that Ms A is the only potential primary victim. First, the Applicant’s past violent assaults were not confined to Ms A. Second, it is not certain that the Applicant and Ms A will remain together. Their relationship is dysfunctional whichever way one looks at it, and the Applicant has previously considered breaking up with Ms A. On 17 November 2018, he threatened to break up with her and marry someone else. On 28 November 2018, his lawyer told the Local Court on his behalf that:
“He has the intention of, although not having contact with the complainant, but to assist in the financial raising of their current child and the expected child. He will wait to see how things pan out in terms of Family Court proceedings to resolve those issues. He also has family he'll prepare to attend the victim's house on his behalf just to remove all his clothing and things so that there can be a clean separation.”[71]
[Underlining added]
[71] Exhibit G1, G Documents, G2, page 47.
In September 2020 the Applicant told a psychologist that if he and Ms A cannot live in harmony with each other, he is prepared to break up with her, thus prioritising their children over her.[72] Despite the devotion the Applicant has expressed regarding Ms A, the weight of the evidence indicates a real possibility that he will have another, or other, intimate partner/s, and therefore there is potential for him to assault another intimate partner or people associated with that person.
[72] Exhibit A3, Report of Alison Cullen, page 10.
Likelihood of engaging in further criminal or other serious conduct
There is no evidence that the Applicant was under the influence of drugs or alcohol during either of the violent episodes or that he had an alcohol problem or engaged in illicit drug use. I am satisfied that the Applicant did not, and does not, have a problem with drugs or alcohol.
Ms A told the Tribunal that she now rents a three bedroom house with a yard.[73] No evidence was put forward that there are CCTV cameras at the new residence. Ms A seemed positive about the prospects of having the current ADVO varied so that the Applicant could live with her.[74] I am satisfied that if the Applicant is returned to the wider community, he will reside with Ms A and their children in the new home and he will continue to operate his landscaping business.
[73] Transcript, page 46, lines 42 to 47.
[74] Transcript, page 42, lines 35 to 47.
After the first violent episode in December 2017, the Applicant undertook an anger management course. This consisted of one session of three to four hours on 12 June 2018.[75] This course was obviously not effective.
[75] Exhibit A3, Report of Alison Cullen, page 4.
When the Applicant was sentenced in November 2018, his lawyer told the Local Court on his behalf that:
“He tells me he will commit to it, but that he is availed of serious help in learning how to deal with the core issue here, which is his inability to moderate his anger and control himself.”[76]
[76] Exhibit G1, G Documents, G2, page 47.

At that time, the sentencing Magistrate described his prospects of rehabilitation as “guarded”.
In his personal circumstances form, the Applicant said of his offending:
“As I make no excuse nor justify my offending, I can only admit to having anger issues and a very bad day at work. I was dealing with the stresses of running my own business and dealing with difficult customers. I would bring my stresses home which would esculate (sic) due to my anger problems. I recognise that I had anger issues and take sole responsibility.”[77]
[77] Exhibit G1, G Documents, G2, page 93.
The Applicant further said:
“I have completed an Anger Management course and attended counselling before my incarceration. I also intend to engage in other Anger Management courses and counselling whilst in prison.”[78]
and:
“I regretted my appauling (sic) behaviour and was deeply remorseful to all involved by my actions as I immediately sought help to prevent such an occurance (sic) in the future. I engaged in an Anger Management programme and sought counselling.
I addressed my anger issues and learnt new skills and techniques which will aid in the prevention of such illicit behaviour.”[79]
[78] Exhibit G1, G Documents, G2, page 93.
[79] Exhibit G1, G Documents, G2, page 99 to 100.
The Applicant also spoke of the effect of his incarceration on him and his family:
“My wife is heavily pregnant with my second biological child and is expecting to give birth soon. Not being there to support my wife nor assist her in her time of need has an overwhelming effect on all family members and although I know this is a consequence of my offending behaviour, the level of hardship is immense. My family are law abiding citizens who continue to struggle everyday without me. Financial difficulties, depression and stress related health problems are amongst many issues that availed (sic) since my incarceration and will only intensify should I be deported.
I never want to return to gaol again and will strive to make positive changes in my life.”[80]
[80] Exhibit G1, G Documents, G2, page 101.
Since the November 2018 assaults, the Applicant has not had unsupervised contact with Ms A. On 17 November 2018, he was taken into custody and refused bail.[81] He was convicted and sentenced on 27 November 2018. He was granted bail between his appeal being heard on 22 January 2019 and his appeal being decided on 6 March 2019.[82] In that period he was not allowed to have contact with Ms A and he lived with a cousin. Also in that six week period he did three sessions of anger management.[83] He said he tried to do an anger management course in prison but was told he was ineligible because his sentence was less than 12 months.[84] This seems plausible and I accept it. On 23 September 2020, the Applicant did a one-day online course on anger management.[85]
[81]    Exhibit R1, Tender Bundle, page 20.
[82]    Exhibit G1, G Documents, G2, page 142.
[83]    Exhibit A2, Summonsed Documents, page 14.
[84]    Exhibit A3, Report of Alison Cullen, page 5.
[85]    Exhibit A4, Statement of XXBN, paragraph 35.
It was contended on the Applicant’s behalf that he has been able to control his anger and has no record of incidents or charges while in prison or detention,[86] and I accept that is the case. The Applicant said he is more stressed being incarcerated because of his separation from his family.[87] However, this is a different type of stress to the stressors to which he attributed his offending, being the stress of work and raising a family and Ms A behaving in ways he did not like. Further, the targets of his anger and violence in the community were not men, difficult customers or other people outside his family. They were defenseless women in his family circle, and he has not had unsupervised access to such people in prison or detention.
[86] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions, paragraph 29.
[87] Exhibit A3, Report of Alison Cullen, page 5.
In relation to his risk of re-offending, the Applicant said:
“I will be a low risk of reoffending in the future as my offending behaviour is out of character. This is my first time in custody and first time away from my wife and kids which I am finding very difficult to adhere to. I have engaged in counselling and courses and will continue to engage in such programs to prevent any relapse into this offending behaviour. I have already learnt my lesson and deeply (sic) remorseful and never wish to return to prison again.”[88]
[Underlining added]
[88] Exhibit G1, G Documents, G2, page 93.
Given the Applicant’s convictions relating to two separate incidents of domestic violence, I do not accept that his offending was out of character.
Ms A provided numerous letters and statutory declarations in support of the Applicant. In a statutory declaration dated 2 April 2019,[89] she said she knew that the Applicant regrets his mistakes and is very sorry, and she is positive he will never repeat them again. She said before she met the Applicant she had nothing and was about to be homeless, she was in debt and suffering depression and anxiety, and she had no one. She said that if she loses the Applicant she will lose everything.
[89] Exhibit G1, G Documents, G2, page 128 to 129.
In another statutory declaration dated 29 April 2019, she said that the AVO had been varied allowing the Applicant and her to contact each other, and they had been speaking daily through the Correctional Centre telephone.[90]
[90] Exhibit G1, G Documents, G2, pages 130 to 131.
In an undated letter that appears to have been received in August 2019,[91] she asked that the Applicant not be judged “based on one mistake”. She described him in very positive terms including that he has a strong sense of duty, is a kind person and “a good man inside and out”. She said the Applicant had a large and committed support system consisting of her and his entire family and that they would be there for him to ensure he returned to a positive lifestyle.
[91] Exhibit G1, G Documents, G2, pages 139 to 141.
In a statement made on 18 September 2020,[92] Ms A said that over the past few years she had seen the Applicant change as a person and she could see how willing he was to become a better father and an even better husband. She said she knew from her conversations with him and from watching him how he had changed. She said he worked every day to make sure he stuck to the principles and methods he learnt during counselling sessions to better his behaviour and reactions in stressful situations. She further said the Applicant “has even considered that we do marriage counselling once we are back together so that we can continue to improve on our relationship”.
[92] Exhibit A5, Statement of Ms A.
One of the Applicant’s younger sisters, “Ms M”, provided a statutory declaration, dated 5 April 2019, in which she said the Applicant was of good character, a very good father and husband, and he had proven that he was remorseful and learned from his mistakes.[93] Ms M did not state how the Applicant had proven to her that he was remorseful and had learned from his mistakes. In the absence of that information, and in circumstances where the Applicant has been incarcerated for all but six weeks since he last offended and was not allowed to have contact with Ms A or her family during that six weeks, I find this evidence unconvincing.
[93] Exhibit G1, G Documents, G2, pages 180 to 181.
Ms B provided a letter of support in which she said the Applicant is like a role model to her and that due to his incarceration she no longer has a brother figure. She did not state how he is a role model or how she reconciles his assaults on herself and Ms A with him being a role model or someone she wants as a brother figure. She said:
“My sister gets slepless nights and i cant see her like that… The worst possible feeling of not having a father figure and a husband my sister can lean onto. Me seeing this brings tears to my eyes i love my sister and also appreciate her husband he lifted the household up now its affected without his presence.”[94]
[Errors in original]
[94] Exhibit G1, G Documents, G2 pages 192 to 195.
Ms B’s support of the Applicant appears to be influenced by Ms A’s dependence on him which undermines the weight I am prepared to give it.
One of the Applicant’s cousins provided a statutory declaration, dated 5 April 2019, stating that the Applicant is a well-respected person, a very hard worker, and always strives to provide and support his family.[95] A Mr N who claimed to know the Applicant personally and professionally said he believes the Applicant is remorseful for the domestic violence offending, but he did not say what that belief was based on. He said the Applicant had been under the stress of establishing a business and raising a family and that he had experienced personal and marriage difficulties.[96] There are a few other statements by people who speak positively about the Applicant, including statements from his cousin, his barber and an employee of his barber.[97] I have no doubt that the Applicant has positive relationships with, and is regarded well by, some people in the community. His anger management problem is confined to his domestic environment and centres around Ms A. His problem does not appear to have impacted his relationships with other people outside his domestic environment.
[95]    Exhibit G1, G Documents, G2, page 185.
[96]    Exhibit G1, G Documents, G2, page 196.
[97]    Exhibit G1, G Documents, G2, page 201.
Ms A’s mother and step-father did not provide statements. Ms A and the Applicant lived on their property for over two years. The Applicant worked with Ms A’s step-father before starting his own business.[98] Ms A’s mother and step-father must have acquired some knowledge the Applicant’s behaviour and personality in that time. Ms A said her mother was supposed to provide a statement and speculated that she did not because the Applicant’s old solicitor wanted them online and her mother is not very technical.[99] However, that does not explain why she did not provide a hand-written letter, as Ms A did numerous times, especially after the Applicant changed lawyers. Nor does it explain the absence of any kind of statement from Ms A’s step-father. The only direct evidence of Ms A’s mother’s attitude toward the Applicant is a police record that indicates that:
·at 6:30pm on Friday 25th January 2019 police attended Ms A’s residence for the purpose of conducting an ADVO compliance check;
·when police asked Ms A if she intended to have the Applicant back in the house, she said her mother who lives in the main house on the block would not allow him to return even if it was what she wanted.[100]
[98] Transcript, page 26, lines 35 to 40.
[99] Transcript, page 50, lines 8 to 13.
[100] Exhibit R1, Tender Bundle, page 7.
There is no reliable evidence before me about Ms A’s step-father’s attitude. I am not satisfied Ms A’s mother and step-father support revocation of the visa cancellation.
Ms A is primarily motivated by emotional and financial dependence on the Applicant and I have found that she is not a witness of credit. I have found that Ms M’s evidence is unconvincing. Ms B’s evidence about the Applicant’s character appears coloured by her desire to support Ms A. I give some weight to Mr N’s letter as he appears to have reasonably good knowledge of the offending and the Applicant’s circumstances leading up to it. However, he did not provide the basis for his belief that the Applicant feels remorse, which is significant. It is one thing for the Applicant to regret his offending and quite another to regret the legal consequence of being caught. The other persons who have provided letters of support have not specifically addressed the Applicant’s offending or referred to recent, meaningful contact with him so I give their evidence limited weight.
The Applicant expressed remorse for his offending yet he continued to deny and downplay some of it. His remorse appears to be more to do with the consequences of his offending than the offending itself. The Applicant has undergone some anger management counselling but his ability to abstain from domestic violence in the environment in which he committed the offences has not been tested. Further, the Applicant pointed to Ms A’s behaviour as having triggered the assaults. Ms A has not undergone any counselling to address what she described as her “drama queen” behaviour[101] leaving a risk that the Applicant will respond to her in a violent manner if he cannot adequately manage this “trigger”. I have no confidence that she would co-operate with prosecution action if the Applicant were to re-offend, and there is no evidence of any CCTV cameras at the new residence. The Applicant is aware of Ms A’s devotion to him and her reluctance to have him convicted or incarcerated again. This must undermine the deterrent effect of the threat of punishment. Considering all of this, there seems to be a real likelihood that the Applicant will re-offend against Ms A and quite possibly anyone who attempts to intervene.
[101] Transcript, page 53, lines 25 to 33.
I would add that it is impossible to speculate about what a new partner’s attitude may be or what safety measures or support may be available to that person. It certainly cannot be assumed that the Applicant would be deterred from offending against a new partner because of the possibility of criminal sanctions or removal from his family.
Yet, I have before me a report from a Ms Alison Cullen, forensic psychologist, dated 10 September 2020 opining that there is a low risk that the Applicant will re-offend.[102] The report raised many questions in my mind and I am grateful that Ms Cullen was made available to give evidence at the hearing.
[102] Exhibit A3, Report of Alison Cullen.
While Ms Cullen’s Curriculum Vitae indicates that she has some experience in the criminal justice and child protection systems, she does not claim specialist knowledge or experience in relation to domestic violence offenders. Nor did she explain why she did not place any significance, in her assessment, on the fact that the relevant offending was domestic violence as opposed to other kinds of violence.
Ms Cullen interviewed the Applicant for a total of two and a quarter hours and she had access to various written materials. She administered the following actuarial assessment tools designed to evaluate:
·Self-deception and impression management (Pulhaus Deception Scale “PDS”);
·Main and dominant areas of personality (Personality Assessment Inventory “PAI”);
·Psychopathy (Hare Psychopathy Checklist – Revised 2^nd Edition);
·Likelihood of violence (the HCR-2020 Assessing Risk for Violence – Version 2 “HCR-20”); and
·Risks and needs regarding recidivism (the Level of Service Inventory – Revised “LSI-R”).
Ms Cullen ruled out the possibility of any personality disorders and, based on the Hare Psychopathy Checklist – Revised 2^nd Edition, she concluded that the Applicant is not a psychopath. These findings are not inconsistent with the balance of the evidence before me and I readily accept them.
The following extracts of Ms Cullen’s report broadly indicate the matters she took into account and her conclusions:
“[The Applicant] explained that he felt overwhelmed with respect to attending court the first time. He attributed this unfamiliarity, coupled with his limited comprehension (related in part to English being his second language) to not having fully understood the specifics related to the Good Behaviour Bond imposed on him. He explained that, at this time, he had failed to recognise and appreciate the wrongdoings of his behaviour insofar as “a push or a slap” being deemed as criminal, reiterating that in Lebanon it is not. He stated “where I used to live, people used to shoot each other. It’s different. It was different”. [The Applicant] confirmed that he has since come to understand and respect the laws of Australia and now appreciates that “any mistake I make I will be deported straight away”. [The Applicant] asserted that he remains so committed to being law-abiding that he has had discussions with his wife, informing her that he would prioritise the children over marriage if necessary (i.e. if unable to live in harmony with each other). He reiterated that the 20 months (11 months in detention centre and prior to that 9 months in gaol) he has spent away from his dependent family has reinforced his commitment to them.”[103]
“Psychological assessment of [the Applicant] revealed that he grew up, in Lebanon, exposed to violence (from the war), physical discipline from his father and corporate (sic) punishment at school. These experiences, during his formative years, coupled with the cultural acceptance of same, have undeniably predisposed him to normalising aggression.[104]
“…[The Applicant] maintained that he utilises adaptive strategies to combat his anger from escalating, such as walking away, engaging in an enjoyable activity, recognising his wife’s personal tolerances/stressors and challenging some of his unhelpful beliefs. He added that the time away from his family has greatly assisted him in re-evaluating his priorities and values. He stated “I’ve spoken to my wife. We’ve sorted everything out. I was young. We have kids now. We need a good family, no fights in front of the kids. We’ve been talking about it a lot”.[105]
“[The Applicant] has demonstrated sound insight into the (aforementioned) predisposing and precipitating factors that led to both incidents of domestic violence. Specifically, he detailed a trajectory of factors including: cultural considerations (i.e. his lack of understanding around mental health concerns; his lack of knowledge around what constitutes domestic violence by Australian standards/laws); his values and beliefs around self-composure and respect being violated during disputes (i.e. how his thoughts regarding same had been perceived to have been violated, thereby leading to aggressive behaviours – thus demonstrating insight that thoughts typically precede emotions, which in turn govern behaviour/s); comprehension difficulties and unfamiliarity associated with criminal proceedings that resulted in feeling overwhelmed; and pressures associated with navigating a blended and new family unit alongside increasing work demands. It is possible, therefore, that in the absence of one or more of these factors, [the Applicant] may not have offended.
Following the index and subsequent offending, [the Applicant] demonstrated accountability by self-initiating help-seeking behaviours. This therefore denotes that his remorse and acceptance of responsibility is genuine. This assessment has further identified additional protective factors, such as: [the Applicant]’s limited criminal history (i.e. absence of conduct issues); a shift in attitudes, values and beliefs that will likely aid in prosocial/adaptive behaviours; demonstrated strategies to combat his anger from escalating; an appreciation and understanding of the Australian law and community expectations; specific deterrence/’significant disincentive’ related to reoffending; consistent and strong work ethic; supportive relationships with his immediate and extended family units in Australia and abroad; appropriate accommodation; good physical health; the absence of alcohol/drugs/gambling addictions; the absence of any acute psychopathology; a positive attitude and willingness to seek and comply with psychological help (i.e. promising rehabilitation prospects); non-criminal associates and realistic and meaningful future goals. These factors, coupled with the current psychometric assessment of [the Applicant] has consistently (between and across a battery of psychometrics) indicated that his risk of recidivism is low.[106]
[Underlining added]
[103] Exhibit A3, Report of Alison Cullen, page 10.
[104] Exhibit A3, Report of Alison Cullen, page 10.
[105] Ibid, page 5.
[106] Exhibit A3, Report of Alison Cullen, pages 10 and 11.

Ms Cullen reported that the Applicant’s risk of violence was low according to the HCR-20, and that he had low criminogenic needs according to the LSI–R.
I have some concerns about Ms Cullen’s assessment which I will address in turn.
In relation to the PDS, Ms Cullen reported that the Applicant “exceeded the cut-off score on impression management, rendering it invalid”[107] therefore she did not use the results of that test. Her explanation about why the Applicant may have scored so high was vague and unhelpful. Nor was this matter adequately clarified in the hearing. although Ms Cullen said that the Applicant’s score equalled,[108] as opposed to exceeded, the cut-off score.
[107] Ibid, page 6.
[108] Transcript, page 67, line 46.
Her description of the Applicant’s responses to the PAI indicated that the Applicant was engaging in some impression management. The following would appear, to me, to be an example of that:
“[The Applicant] describes his temper (across the PAI) as within the normal range, and as fairly well-controlled without apparent difficulty.”[109]
[109] Ibid, page 7.
Clearly the Applicant’s temper is not within normal range and he requires intervention in order to control it. However, in the hearing Ms Cullen said the Applicant was not engaging in impression management. She was unable to explain how that could be correct given the above statement.[110]
[110] Transcript, page 69, line 45 to page 70, line 5.
The relevance of the extent to which the Applicant was engaging in “impression management”, in other words providing inaccurate information, is that all the assessment tools relied to some extent on information provided by the Applicant. Evidently so did Ms Cullen’s clinical assessment of the Applicant. For example, when counsel for the Respondent asked Ms Cullen for the basis of her opinion that the Applicant had started to address one of the factors that she thought contributed to his offending (gained insight into his own expectations of how his wife should behave), she pointed to her interview with the Applicant, her opinion that he had shown, through his actions in seeking counselling, that he had accepted “responsibility and accountability”, and the “salutary effect” of the consequences of his actions including separation from his family. She added that the Applicant had told her he was prepared to separate from Ms A if they could not “work through their differences” and he had provided examples of how they now manage conflict. She quite sensibly added “obviously that’s different once you’re living under the same roof”.[111] Much of her opinion about that matter, therefore, relied on her acceptance of the truthfulness and accuracy of information provided by the Applicant.
[111] Transcript, page 65, line 39 to page 66, line 1.
Relying on information provided by the Applicant led her into error in relation to the first ADVO about which she said:
“[The Applicant] explained that he had been charged with a “breach AVO” on this occasion as the AVO had been taken out to protect his wife’s sister and that because he continued to live with his wife, this constituted a breach by maintaining contact with the victim’s family ([the Applicant]’s wife)”.[112]
[112] Exhibit A3, Report of Alison Cullen, page 5.
She confirmed when giving evidence that she believed that the first DVO breach arose from the Applicant merely being in the same vicinity as his wife. In fact, it arose from the Applicant throwing a chair at Ms A.[113] Another example is that Ms Cullen did not ask the Applicant about hitting Ms B because she thought Ms B had retracted her allegation.[114] In fact, Ms B did not retract that part of her allegation, and the Applicant pleaded guilty to assaulting Ms B.
[113] Transcript, page 74, lines 4 to 30.
[114] Transcript, page 78, lines 17 to 30.
Ms Cullen made very curious use of some collateral material. She summarised the contents of the non-revocation decision and incorrectly described it as “submissions made by or on behalf of” the Applicant.[115] In addition, she treated some of the findings in the non-revocation decision as fact, for example, she said:
“Remorse and insight were also assessed with the author accepting that [the Applicant] had accepted full responsibility, he has made no attempt to minimise his behaviour…”[116]
[115] Exhibit A3, Report of Alison Cullen, page 8.
[116] Exhibit A3, Report of Alison Cullen, page 9.
It is inappropriate for an expert witness to adopt the opinion of someone else at face value. Similarly, it would be inappropriate for the Tribunal to adopt the opinion of a witness, even an expert witness, without properly engaging with and evaluating the whole of the evidence.
Another concern I have relates to the methodology used. It is well known and uncontroversial that domestic violence is a specific type of violence involving specific dynamics. Most obviously it is significantly under-reported and perpetrators tend to target particular individuals with whom they have a close and/or domestic relationship. Yet the risk assessment did not take those matters into account. When asked if she looked specifically at domestic violence recidivism, Ms Cullen said:
“No. There are no tools for domestic violence per se. There is (sic) only tools for violence. So what I can say however is that in these three papers, they only identify a total of 11 dependent variables. The HCR has 20 variables. As a comparison. So the – what I’m trying to say is the tools I’ve used assess all of those variables and more, that have been identified in those research papers. But there is no tool that I’m aware of that assesses the risk of recidivism in relation to domestic violence per se.” [117]
[117] Transcript, page 71, line 45 to page 72, line 8
To explain Ms Cullen’s reference to “these three papers” identifying “a total of 11 dependant variables”, she was referring to three journal articles that I had included in the Tribunal materials pursuant to s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) and which the Applicant’s legal representative helpfully provided to Ms Cullen prior to the hearing. One paper[118] purports to identify the best indicators of domestic violence recidivism among offenders who were given a non-custodial penalty (which is not the case here) of which there were 11.
[118] Exhibit T3, Robin Fitzgerald and Timothy Graham, ‘Assessing the risk of domestic violence recidivism’ (2016) 189 Crime and Justice Bulletin 1.
Another article[119] discusses the predictive ability of certain factors based on an evaluation of various studies into domestic violence recidivism. It states that one 2016 study found that, using police apprehension data (i.e not convictions), 51% of offenders recorded by police as the perpetrator of at least one family violence incident were involved in another incident within four years. However, studies that used convictions found that only a third of offenders had a proven offence within three years, half of which involved violent offending.[120] The article also reported that offenders aged less than 35 years were at greater risk of re-offending, that there was a strong association between the number of prior offences and re-offending,[121] and it cited one study that found that breaching a protection order was the strongest predictor of repeat offending.[122] There were other strong predictors identified such as gender and socio-economic status and employment. The article asserted that “…a large proportion of domestic violence goes unreported (Australian Bureau of Statistics (ABS) 2017)”.[123] I could not tell from Ms Cullen’s report whether the assessment tools used by her appropriately accounted for the factors that best predict domestic violence. In the hearing I tried to ascertain that with little success.
[119] Exhibit T1, Shann Hulme, et al ‘Domestic Violence offenders, prior offending and reoffending in Australia’ (2019) 580 Australian Institute of Criminology 1.
[120] Ibid, page 10.
[121] Ibid, page 11.
[122] Ibid, page 11.
[123] Ibid, page 4.
The HCR-20 takes into account “previous violence”, and the LSI-R takes “criminal history” into account.[124] I asked Ms Cullen if the assessment tools she used took into account evidence of domestic violence that did not result in a conviction. She said she only included violence that was the subject of a conviction under “previous violence” and “age at first violent issue” under the HCR-20.[125] I question how accurately the assessment tools can measure risk of repeat domestic violence given (1) number of prior offences and breaching a protection order are strong predictors of domestic violence recidivism, (2) domestic violence offending is significantly under-reported, and (3) the tools only take convictions into account.
[124] Exhibit A3, Report of Alison Cullen, page 7.
[125] Transcript, page 58, line 41 to page 59, line 13.
Ms Cullen said her overall methodology took into account the fact that the offending had occurred within a domestic relationship because:
“…then you’ve got the other parts of the methodology which is the clinical side of it, and the collateral side of it. So from that standpoint, it actually does take into consideration that.”[126]
[126] Transcript, page 72, lines 22 to 28.
However, it does not appear that Ms Cullen took into account the dynamic in the Applicant’s domestic relationship in her clinical judgment, as the following exchanges demonstrate:
TRIBUNAL: Okay. Well I’m going to tell you that she partly blames herself for his behaviour. That she desperately wants him back. And she said that she did not want to report – she didn’t want him charged with the incident in 2018 – November 2018. So if you just take my word for that – take the Tribunal’s word for that – I’d like to know whether that affects your risk assessment?
WITNESS: No. Because my risk assessment doesn’t include the attitude, or belief, or the desires of the other party. There’s no area in my assessment for that, to be honest.[127]
TRIBUNAL: Okay. So you’ve named – you’ve said that he doesn’t want to go back to gaol, so you used the word salutary. So he’s learned a salutary lesson?
WITNESS: Yes.
TRIBUNAL: If he knows that his victim is unlikely to report him for further domestic violence, does that affect your risk assessment?
WITNESS: But wasn’t it other people that had reported it in the past, such as the sister-in-law?
TRIBUNAL: I’m not talking about the sister-in-law, I’m talking about – we’ve got a household where we will have children, the Applicant and his wife. So in that situation, does the fact that the wife is reluctant for him to go – to be charged and go back to gaol, does that affect your risk assessment?
WITNESS: Well, not really, because she’s made it quite clear that she’s willing to – she’s done it in the past – she’s – I presume she has - - -
TRIBUNAL: No, no, no, no – answer my question. I’m talking about the future?
WITNESS: It doesn’t affect my risk assessment, because I haven’t assessed her as part of this. I’ve looked at him and I’ve looked at the psychosocial circles, I’ve looked at the precipitating factors, and together if those things are resolved, then no it doesn’t. There is no concern for that family unit to be back together. If this is 100 per cent accurate and he can go and resolve those other issues that led to the factors that were identified in my report, then there shouldn’t be any issue.[128]
[Underlining added]
[127] Ibid, page 71, lines 1 to 8.
[128] Ibid, page 71, lines 9 to 31.
I now turn to the risk factors identified by Ms Cullen in her report, being:
·     the Applicant’s lack of understanding around mental health concerns;
·     his lack of knowledge around what constitutes domestic violence by Australian standards/laws);
·     his values and beliefs around self-composure and respect being violated during disputes (i.e. how his thoughts regarding same had been perceived to have been violated, thereby leading to aggressive behaviours – thus demonstrating insight that thoughts typically precede emotions, which in turn govern behaviour/s);
·     comprehension difficulties and unfamiliarity associated with criminal proceedings that resulted in feeling overwhelmed; and
·     pressures associated with navigating a blended and new family unit alongside increasing work demands.
Ms Cullen considered that it was possible that in the absence of one or more of those factors, the Applicant may not have offended. She opined that the Applicant had “demonstrated sound insight into the (aforementioned) predisposing and precipitating factors that led to both incidents”.[129] However, these apparent risk factors require analysis in terms of whether they really contributed to the offending and, if they did, whether there is determinative evidence that demonstrates that the Applicant has adequately addressed or overcome them.
[129] Exhibit A3, Report of Alison Cullen, page 10.
There is no expert evidence before the Tribunal in relation to Ms A’s mental health. She said she suffers from depression and anxiety. She has engaged in abnormal behaviour (leaping from a moving car) in the last two years. There is no evidence that the Applicant has adequately addressed his lack of understanding of his wife’s mental health concerns, beyond accepting that she has anxiety. Indeed, when asked if he thought Ms A suffered from a mental illness, he said:
“Look, it’s not mental issues, but that trust issues. Like, when someone love someone too much and like, how do you say it? They’d die for you, or whatever they do for you, yes. That’s my wife. It’s not mental issues. It’s just love.”[130]
[Errors in original]
[130] Transcript, page 24, lines 26 to 30.
Turning to the next risk factor, in January 2018, the Applicant was convicted of assault for hitting Ms B. I find it implausible that he did not know that hitting Ms B’s face was unlawful, but even if that were the case, he must have known after being convicted of that assault that slapping or pushing (as he characterised it) was unlawful. Ignorance of Australian law can certainly not assist to explain his November 2018 offending. I do not accept that ignorance of knowledge of Australian law contributed to his offending. It follows that I do not accept that the absence now of such ignorance reduces his risk of re-offending.
During the hearing I asked Ms Cullen to explain what her reference to values and beliefs around self-composure being violated meant, and she answered as follows:
“WITNESS: So he has interpreted her screaming and running around in front of neighbours and family members, as a lack of self-composure. That interpretation has violated his belief that people should self-compose in front of the presence of others. Does that make sense?
TRIBUNAL: Okay, so she behaved in a way that he felt was unacceptable?
WITNESS: That violated his belief, that’s correct. That it was the violation of those beliefs that made him angry and so he’s recognised now that those beliefs were unhelpful in that situation, and those beliefs have typically come from a cultural standpoint that that’s how you should behave in public. But it’s also come – so that’s what has – not only shifted from that cultural perspective, but it’s also shifted from an understanding now around her mental health, ie her anxiety and how that may have played a part in her reported little self-composure. If that makes sense.”[131]
[131] Transcript, page 64, lines 30 to 44.
When asked if she was saying that the Applicant has changed his expectations of his wife and therefore she could engage in that sort of behaviour in the future without him becoming violent, Ms Cullen said:
“There’s less likelihood that…because he now understands it’s unhelpful to have those expectations. So a lot of people will act on those unconsciously or subconsciously without recognising that those beliefs is (sic) actually what’s responsible for their behaviour. He’s now demonstrated insight into that. But insight is a bit (sic) step towards changing one’s behaviour.”[132]
[132] Transcript, page 65, lines 14 to 24.
When asked the following question:
“…you’re saying that part of the trajectory is no longer an issue. And I want to know if in fact it is an issue, if some other belief is violated?”
Ms Cullen said:
“It certainly may be is the short answer. However, it’s only problematic when there’s an interplay of other psychosocial variables which have been identified as part of that trajectory.”[133]
[133] Transcript, page 80, lines 26 to 31.
I take from Ms Cullen’s evidence that she considers that the Applicant has insight into his reaction to Ms A’s failure (in his eyes) to conform to certain expectations he holds, and that he realises those expectation are unhelpful. I do not take her evidence to mean that the Applicant has sufficiently addressed his predisposition to react violently when he feels that Ms A has violated his expectations of her. Realistically, it is quite possible that Ms A or another intimate partner could engage in behaviour in the future that violates the Applicant’s conscious or subconscious expectations in ways that he has not anticipated. In that at case, according to Ms Cullen’s evidence that would be a risk factor.
It is not apparent to me how the Applicant’s unfamiliarity associated with criminal proceedings that resulted in feeling overwhelmed contributed to his offending, unless Ms Cullen was referring to his contravention of the good behaviour bonds. That is not the real gravamen of his offending. Further, I am not satisfied that the Applicant did not understand his obligations under the good behaviour bonds that were imposed.
Ms Cullen also referred to the pressures associated with navigating a blended and new family unit alongside increasing work demands. If the Applicant is returned to the wider community these pressured will remain.
In terms of protective factors, Ms Cullen referred to the following (in her words), which I will address in turn:[134]
[134] Exhibit A3, Report of Alison Cullen, page 11.
·limited criminal history;
·a shift in attitudes, values and beliefs that will likely aid in prosocial/adaptive behaviours;
·demonstrated strategies to combat his anger from escalating;
·an appreciation and understanding of the Australian law and community expectations;
·specific deterrence/’significant disincentive’ related to reoffending;
·a positive attitude and willingness to seek and comply with psychological help (i.e. promising rehabilitation prospects);
·consistent and strong work ethic;
·supportive relationships with his immediate and extended family units in Australia and abroad;
·appropriate accommodation;
·good physical health;
·the absence of alcohol/drugs/gambling addictions;
·the absence of any acute psychopathology;
·non-criminal associates and realistic; and
·meaningful future goals.
I have addressed the Applicant’s shift in attitudes and beliefs above. I am not satisfied that the Applicant has demonstrated strategies to combat his anger from escalating in the environment in which he offended. I have rejected ignorance of Australian laws as having contributed to the Applicant’s offending. I accept that the Applicant has a limited criminal history in the sense that he has not committed other types of offences. In terms of specific deterrence, the threat of sanction is significantly undermined by the improbability that Ms A would co-operate with a prosecution and the uncertainty about whether any subsequent domestic partner would.
I have doubts about the Applicant’s willingness to seek and comply with psychological help, and whether it indicates genuine remorse (as Ms Cullen asserted elsewhere in her evidence). First, it took him six months to participate in anger management counselling after the New Years Eve assaults and he only did a three to four-hour course. Second, there is no evidence that the Applicant requested any kind of intervention when he was imprisoned for the November 2018 offending and serving a non-parole period of 14 months. In the six weeks when he was on bail awaiting the outcome of his appeal against the severity of his sentence, he attended three sessions of anger management counselling, and he got his counsellor to write a letter to the court confirming his participation.[135] I accept that the Applicant was unable to undertake any intervention while in prison serving his reduced sentence. Since entering Immigration Detention on 30 September 2019,[136] he completed a one-day anger management course online on 23 September 2020.[137] He said he has made attempts to see a forensic psychologist and attend the International Health and Medical Services (‘IHMS’) clinic while in Immigration Detention,[138] although he did not state why his attempts to attend the IHMS clinic were unsuccessful.
[135] Exhibit A2, summonsed documents, page 14.
[136] Exhibit G1, G Documents, G17, page 369.
[137] Exhibit A4, statement of XXBN, paragraph 35.
[138] Ibid.

In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Moreover, I should proceed on the basis that the Australian community expects that the Australian government can and should cancel a person’s visa if they commit serious crimes. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. I must have due regard to the Government’s views in this respect and any overarching principles in the Direction.
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of the community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Government’s views in relation to community expectations are to be found in the Direction.[166]
[166] Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
This approach was confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
Paragraph 6.2(1) of the Direction states 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. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.”
Those principles, set out in paragraph 6.3 of the Direction, are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against 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. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age;
(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 in the context of determining whether that non-citizens Visa should be cancelled, or their visa application refused.
Analysis – Allocation of Weight to this Primary Consideration C
Accordingly, in assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following matters:
·the Applicant relocated to Australia relatively recently, in 2015, when he was already an adult;
·he commenced offending only two years later in December 2017;
·his offending is, by its nature, very serious and the second episode was also serious by degree;
·there is a real likelihood that he will re-offend;
·he said his social circle in Australia consisted of his family and relatives. In addition, he appears to have made some contacts in the community through his work. There is no evidence of involvement in community groups;
·he studied for a short period then entered the workforce. However, he said his business did not pay tax, and explained that:
“Once when I start my business, the first year I have [lodged a tax return] once. But because I have got the truck and I got the Jeep and I got everything, so I didn’t like - everything like - even, you know, I didn’t pay tax. But after that I start working, and then I got locked up. I didn’t have the chance to pay taxes. Before I started my business I was studying, so I can’t.”[167]
·he claimed to have employed some people in his business and Ms A referred to him giving work to a handful of people. I accept that he provided paid work to a small number of people. He mentioned doing favours for some people through his business, which I accept, but he did not claim to have performed voluntary work in the wider community; and
·if he is removed to Lebanon, it will adversely affect his wife, her two sisters and her three children (addressed below under Other Considerations, and above under Primary Consideration B). There is no evidence before me that his removal would have any significant adverse impact any other person.
[167] Transcript, page 27, lines 4 to 9.
Conclusion: Primary Consideration C
The Applicant has certainly breached the trust of the Australian community and the courts that serve the Australian community- he committed the more serious offence in breach of an ADVO and in breach of good behaviour bonds. Taking all the above matters into account, Primary Consideration C weighs heavily against revocation of the cancellation of the Applicant’s visa.
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 does not make any claims with respect to Australia’s non-refoulment obligations, and none arise on the evidence. This Other Consideration is not relevant.
(b) Strength, nature and duration of ties
The Applicant came to Australia as an adult at the age of 22 and he has lived in Australia for five years, including three years in the wider community. Based on these matters, he is entitled to very limited weight under paragraph 14.2(1)(a) of the Direction. The Applicant has spent his time in the wider community studying or working. Presumably when he worked for his father-in-law he paid personal income tax but his business never contributed to the tax system. He has done favours for people but has not performed voluntary work in the community. He is entitled to very limited weight under paragraph 14.2(1)(a)(ii) of the Direction.
The Applicant’s ties to his three children and the impact on them is discussed under Primary Consideration B and I take those matters into account. The Applicant and his wife love each other although their relationship is a relatively short one and has been interrupted by his incarceration for offending against her and by the most recent ADVO. She feels emotionally dependent on him, and she feels dependent on him to provide the lifestyle she wants for herself and her children. I have deliberately used the word “feels” because Ms A’s financial dependence on the Applicant is a choice she has made. There is no reliable evidence of any impediment to Ms A undertaking gainful employment. Indeed, she said she did not want to work. The impact of non-revocation on the Applicant’s biological children who will grow up without their father, his step-daughter who will not have the Applicant as a father figure in her life, and Ms A who will be separated from her husband warrants significant weight according to this Other Consideration.
Ms A’s two younger sisters have written letters of support in which they speak fondly of the Applicant and say they will be without a brother figure and role model. In a statement made by the Applicant in July 2020, he said that he and Ms B had “sorted things out” and occasionally talk from time to time if she is with Ms A, and that Ms B looks up to him like a brother and he cares for her as if she is his little sister.[168] On the Applicant’s own evidence, he and Ms B have little contact and what contact they do have is incidental to Ms B being with Ms A. Ms A’s other sister, Ms M, moved overseas for a while which tends to suggest that she did not need the Applicant in her life. I am not satisfied that non-revocation would have much of an impact on either Ms B or Ms M.
[168] Exhibit G1, G Documents, G2, page 102.
The Applicant has several cousins in the local area. He said he socialised with his cousins’ families. When he was on bail for six weeks he lived with one of these families because he was not allowed to contact Ms A. There is no evidence before me about the strength of the Applicant’s relationships with his relatives or the duration of the relationships. For example, there is no evidence of whether the Applicant ever spent time with them before he came to Australia. On the evidence before me, I accept that the Applicant has familial ties to his cousins and their families through socialising with them in recent years whilst in Australia.
Only one cousin has provided a letter of support and he did not claim he or any of his family or relatives would be adversely affected if the Applicant were to be deported. Otherwise, there is no evidence of what his cousins’ views are. The absence of letters of support from any other cousins suggests that they would not be significantly impacted by the Applicant’s deportation. I have already found that non-revocation would not affect the best interests of those cousins’ children and I note that those children are not, by Australian standards, considered to be part of the Applicant’s “immediate family” which is what the Direction refers to under this Other Consideration.
The Applicant has very few non-familial social ties to the community.
Largely on the strength of the Applicant’s familial ties to Ms A, his two children and his step-daughter, I allocate significant weight under paragraph 14.2(1)(b) of the Direction.
Overall, I am satisfied that the strength, duration and nature of ties to the Australian community weighs heavily in favour of revocation.
(c) Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. While he did claim to have employed some people, the impact of the Applicant no longer being able to operate his business in Australia does not rise to the level of disruption contemplated by the Direction.
(d) Impact on victims
This Other Consideration (d) requires a decision-maker to assess the impact of decision not to revoke on members of the Australian community, including victims of the non-citizens criminal behaviour, and the family members of the victim or victims where that information is available and is the non-citizen being considered for revocation has been afforded procedural fairness. Both of the Applicant’s victims have indicated that they will be adversely impacted by non-revocation of the cancellation of the Applicant’s visa. It was contended on behalf of the Applicant that this Other Consideration therefore favours him. This is one possible interpretation of the Direction. However, the fact that the Direction requires the non-citizen to be afforded procedural fairness indicates that this consideration contemplates the allocation of weight against the non-citizen. In any event, I have accounted for the impact of non-revocation on the victims of the Applicant’s offending (and on Ms A’s children) in Other Consideration (b). Accordingly, I do not allocate any weight under this Other Consideration.
(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 the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is a 28 year old man who is able bodied and does not claim to have any medical conditions.[169]
[169] Exhibit G1, section 501 G Documents, page 95.
The Applicant grew up in Lebanon until the age of 22. He completed tertiary studies there in Lebanon. According to his Personal Circumstances Form, both of his parents, a brother and three sisters live in Lebanon.[170] He also has seven uncles/aunts and more than 20 cousins in Lebanon.[171]
[170] Exhibit G1, G Documents, G2, page 92.
[171] Exhibit G1, G Documents, G2, page 92.
The Applicant does not claim that he will face any significant language or cultural barriers and I do not accept that he will.
The Applicant contends that he would be at an economic disadvantage in Lebanon due to the economic and political situation there[172] but has not put forward any supporting evidence. In his Personal Circumstances Form he said would endure hardship in Lebanon because he “definitely” would not be able to create a future for himself there[173] without putting forward any supporting evidence.
[172] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions, paragraph 72(d).
[173] Exhibit G1, G Documents, G2, page 96.
The Applicant has a degree in Mechanics and Energy.[174] In addition, he is sufficiently skilled at landscaping work that he operated a successful landscaping business in Australia. Landscaping is work that can be done as a sole trader and therefore is not dependent on securing employment with a business. Given the Applicant’s age, health, education, skills, business acumen and ability to work in a trade that is reasonably flexible, he has good income earning prospects.
[174] Exhibit G1, G Documents, G2, page 209.
The Applicant further contended that he would have little support from his parents as they are elderly and unemployed. The Applicant’s parents are not elderly: his mother is 50 years old and his father is 56 years old.[175] Three of the Applicant’s siblings in Lebanon (aged 19, 17 and 15) are at school continuing their studies.[176] Presumably they are being supported by the Applicant’s parents. The Applicant’s father supported him financially during his first six months in Australia when he was studying.[177] Contrary to what is contended, what little evidence there is concerning the likelihood of the Applicant’s parents supporting him suggests that they would.
[175] Exhibit G1, G Documents, G2, pages 84 to 85.
[176] Supra, paragraph 72(f).
[177] Exhibit A3, Alison Cullen Report, page 4.
In his Personal Circumstances Form, the Applicant said returning to Lebanon would bring shame upon his family and he would be disowned by them for failing to establish himself in Australia given that, according to him, a new life in Australia is what many Lebanese people dream of having.[178] There is no evidence to support this, including any corroborating evidence from his cousins in Australia. I do not accept this contention.
[178] Exhibit G1, G Documents, G2, page 96.
The Applicant contends that he would suffer “severly” (sic) being away from his wife and children, would not be able to function without his family, would fall into depression and that he would be “immensly (sic) stressed” and “constantly concerned” for their well-being. There is no evidence that the Applicant has not been able to function while separated from his family thus far. Indeed, in prison he worked in the upholstery workshop.[179] There is no evidence of the Applicant suffering depression. I accept that if he is removed to Lebanon the separation will be permanent and that will increase the emotional hardship of separation. However, he will not suffer this alone as he has family and relatives in Lebanon.
[179] Exhibit R1, Tender Bundle, pages 32 and 36.
There is no evidence before me of what social, medical and/or economic support is available to the Applicant in Lebanon. In the absence of any claim or evidence to the contrary, I find that, as a citizen, the Applicant will be able to access such support, including counselling or psychological treatment, to the same extent and in the same manner as other Lebanese citizens.
The extent of any impediments that the Applicant may face if removed from Australia to Lebanon in establishing himself and maintaining basic living standards is very slight.
This Other Consideration (e) weighs only slightly in favour of revocation of the reviewable decision.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction.
The nature of the offences committed by the Applicant are characterised by the Direction as very serious. The second offending episode was particularly serious for the reasons I have given. There is a real likelihood that the Applicant will re-offend. The harm from any repeated offending will not necessarily be confined to Ms A but could impact others.
Of the matters that favour revocation, the most significant is how the Applicant’s removal from Australia will impact his family unit comprising Ms A and their three children. This is important, and I have taken into account the ways in which his family will be affected in the manner required by the Direction.
In weighing the relevant considerations I am mindful that paragraph 6.3 of the Direction stipulates that being able to remain in Australia is a privilege conferred in the expectation that visa holders are law-abiding and will not cause or threaten harm to individuals or the Australian community, the Australian community expects that the Australian Government should cancel the visas of non-citizens who commit serious crimes in Australia, a non-citizen who has committed a serious crime against a woman, should generally expect to forfeit the privilege of staying in Australia, and Australia has a low tolerance with respect to the criminal offending when the non-citizen has been participating in, and contributing to, the Australian community only for a short period of time.

In this case, the factors in favour of revocation are outweighed by Primary Considerations A and C.
Consequently, the Tribunal cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

229. I certify that the preceding 228 (two hundred and twenty eight) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

..............................[SGD]..................................
Associate
Dated: 23 October 2020

Date(s) of hearing: 06 October 2020

Date final submissions received: 02 October 2020

Counsel for the Applicant: Mr N Poynder

Solicitors for the Applicant: Ms L Succar, Nicopoulos Sabbagh Lawyers

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Ms S Sangha, Mills Oakley Lawyers
ANNEXURE A: Exhibit Register

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

G-Documents (G1 to G17 pages 1-370)

R

-

17 AUG 20

T1

Australian Institute of Criminology Report 580

T

SEP 2019

-

T2

Australian Institute of Criminology Report 593

T

MAR 2020

-

T3

UQ Crime and Justice Bulletin Article

T

MAY 2016

-

R1

Respondent’s Tender Bundle (R1 to R13 pages 248-78)

R

-

18 SEP 20

R2

Respondent’s Statement of Facts, Issues and Contentions (16 pages)

R

18 SEP 20

18 SEP 20

A1

Applicant’s Statement of Facts, Issues and Contentions (29 pages)

A

-

4 SEP 20

A2

Applicant’s Summonsed Documents

A

-

30 SEP 20

A3

Psychologist Report of Alison Cullen (15 pages)

A

10 SEP 20

30 SEP 20

A4

Statement of XXBN (7 page)

A

25 SEP 20

30 SEP 20

A5

Statement of Ms A (4 pages)

A

18 SEP 20

30 SEP 20

[2020] AATA 4238

23 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Jurisdiction

Date(s) of hearing:	06 October 2020
Date final submissions received:	02 October 2020
Counsel for the Applicant:	Mr N Poynder
Solicitors for the Applicant:	Ms L Succar, Nicopoulos Sabbagh Lawyers
Counsel for the Respondent:	Mr T Reilly
Solicitors for the Respondent:	Ms S Sangha, Mills Oakley Lawyers

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	G-Documents (G1 to G17 pages 1-370)	R	-	17 AUG 20
T1	Australian Institute of Criminology Report 580	T	SEP 2019	-
T2	Australian Institute of Criminology Report 593	T	MAR 2020	-
T3	UQ Crime and Justice Bulletin Article	T	MAY 2016	-
R1	Respondent’s Tender Bundle (R1 to R13 pages 248-78)	R	-	18 SEP 20
R2	Respondent’s Statement of Facts, Issues and Contentions (16 pages)	R	18 SEP 20	18 SEP 20
A1	Applicant’s Statement of Facts, Issues and Contentions (29 pages)	A	-	4 SEP 20
A2	Applicant’s Summonsed Documents	A	-	30 SEP 20
A3	Psychologist Report of Alison Cullen (15 pages)	A	10 SEP 20	30 SEP 20
A4	Statement of XXBN (7 page)	A	25 SEP 20	30 SEP 20
A5	Statement of Ms A (4 pages)	A	18 SEP 20	30 SEP 20