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

[2020] AATA 1012

Zhang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1012 (9 April 2020)

Division:GENERAL DIVISION

File Number:          2020/0639

Re:Tong Zhang

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:The Hon. Matthew Groom, Senior Member

Date of decision:      9 April 2020

Written reasons:     30 April 2020

Place:Melbourne

The Tribunal sets aside the decision made by the delegate of the respondent dated 19 December 2019 and in substitution decides not to refuse to grant the applicant a Skilled (Residence) (Class VB) visa under subsection 501(1) of the Migration Act 1958 (Cth).

[sgd]................................................................

The Hon. Matthew Groom, Senior Member

Catchwords

MIGRATION – visa refusal – citizen of China – s 501 character test – violent offence against a woman – isolated incident – risk of reoffending – appropriate test – risk of reoffending minimal – decision under review set aside and substituted

Legislation

Migration Act 1958

Cases

Nigro v Secretary to the Department of Justice [2013] VSCA 213

Secondary Materials

Direction No. 79 - Migration Act 1958 - Direction under section 499 Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

The Hon. Matthew Groom, Senior Member

30 April 2020

1. This is an expedited review of a decision made by a delegate of the respondent dated 19 December 2019 to refuse to grant the applicant a Skilled (Residence) (Class VB) visa pursuant to section 501(1) of the Migration Act 1958 (Cth) (the “Act”).

2. The applicant sought review of the decision by application to the Tribunal on 29 January 2020.

3. The hearing in this matter was held on 8 and 9 April 2020. The applicant was represented by Ms Roz Germov of counsel. The respondent was represented by Mr Adam Cunynghame, a solicitor advocate with Sparke Helmore Lawyers. The applicant was assisted by an interpreter in the Mandarin language.

4. On 9 April 2020 the Tribunal decided to set aside the decision under review. Set out below are the written reasons for the Tribunal’s decision.

   BACKGROUND

5. The following factual background information is drawn substantially from the written submissions of the parties together with the direct evidence of the applicant and is accepted by the Tribunal.

6. The applicant is a 33-year-old citizen of China who arrived in Australia on 2 February 2009 as the holder of a Student (Subclass 573) visa.

7. The applicant had obtained a diploma in financial services in China. Following his arrival in Australia, the applicant obtained a degree in accounting and a Masters in Financial Analysis at Latrobe University.

8. The applicant met his former wife, Ms Hu, in 2013 and they were subsequently married in early 2014. Ms Hu is a qualified accountant.

9. On 26 August 2014 the applicant was granted a Skilled Regional Sponsored (subclass 489) visa (the “skilled regional sponsored visa”).

10. On the evening of 18 February and the early morning of 19 February 2015, the applicant was involved in a domestic violence incident at the home he shared with Ms Hu and another housemate.

11. Following the incident, on 27 February 2015 the applicant pled guilty to, and was convicted of, two offences at the Ringwood Magistrates Court, namely, Threat To Inflict Serious Injury and Unlawful Assault (the “2015 offences”). The applicant was fined $1,500 for the first offence and placed on a good behaviour bond for 12 months for the second offence.

12. On 26 February 2016, the Ringwood Magistrates Court acknowledged that the applicant’s 12 month good behaviour bond had been satisfied.

13. Other than the 2015 offences, there is no evidence of the applicant having committed any other offence either before that date or subsequently. The respondent has made no assertion to the contrary.

14. The applicant and Ms Hu subsequently reconciled and in around April or May 2015 the couple moved to remote New South Wales for work. After around three months the couple applied for a release from the conditions of the skilled regional sponsored visa and subsequently moved to Adelaide. While in Adelaide, Ms Hu worked in retail and the applicant worked at a family run business.

15. On 4 May 2017 the applicant applied for a Skilled (Residence) (Class VB) visa which is the subject of these proceedings. The applicant applied for the visa as a spouse/partner on Ms Hu’s application. The applicant disclosed his convictions in the application.

16. On 10 April 2018, the applicant was sent a notice of intention to consider refusal of the grant of the visa, advising that as a consequence of the applicant’s criminal record, he may not pass the character test in section 501(6)(d) of the Act due to an ongoing risk that he may engage in future criminal conduct in Australia.

17. On 14 May 2018 the Department of Home Affairs (the “Department”) was notified that Ms Hu had withdrawn her application for the visa.

18. On 31 May 2018 the Department requested that the applicant provide further information in support of his own independent application. A response to this request was provided to the Department on 26 June 2018. A further response was provided to the Department on 13 September 2019.

19. On or around the end of 2018 the applicant began a relationship with his current wife, Ms Shi. Ms Shi fell pregnant with the applicant’s child in around May 2019.

20. The applicant was assessed by consultant forensic psychologist Mr Patrick Newton on 20 August 2019. Mr Newton subsequently prepared a report dated 12 September 2019 which was provided to the Department, and which concluded that the applicant was a low risk of reoffending.

21. On 19 December 2019 a delegate of the respondent refused to grant the visa under section 501(1) of the Act on the basis that the applicant did not pass the character test by virtue of section 501(6)(d)(i), and the delegate had decided to exercise their discretion to refuse to grant the visa.

22. On 16 January 2020 the applicant and Ms Shi were married.

23. The Department notified the applicant on 28 January 2020 that his visa application had been refused. The applicant was handed the decision in person and taken into immigration detention at the Melbourne Immigration Transition Accommodation on the same day.

24. Ms Shi gave birth to the applicant’s son, Aaron, on 2 February 2020. The applicant was not able to be present at the birth due to his ongoing detention.

    RELEVANT LAW

25. Section 501(1) of the Act provides that the Minister (or the Tribunal acting in their place) may refuse to grant a visa to a person if the person does not satisfy the Minister (or the Tribunal acting in their place) that they pass the character test.

26. The character test is defined in section 501(6) of the Act, which provides relevantly in the context of this case that:

    Character test

    (6) For the purposes of this section, a person does not pass the character test if:

    …

    (d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

    (i) engage in criminal conduct in Australia; or

    (ii) harass, molest, intimidate or stalk another person in Australia…

27. In the event that the Tribunal is not satisfied that the applicant passes the character test as set out in section 501(6) of the Act, there remains a residual discretion regarding the power to refuse to grant the visa. That residual discretion must be exercised by the Tribunal in accordance with Direction No. 79, which was issued under section 499 of the Act on 20 December 2018, and came into effect on 28 February 2019 (the “Direction”).

    ISSUE

28. The issue before the Tribunal is whether it is satisfied that the applicant passes the character test as set out in section 501(6) of the Act and, if he does not, whether the Tribunal should, or should not, exercise its residual discretion to refuse the visa under section 501(1) of the Act, applying the Direction and having regard to all of the circumstances of the case and all relevant considerations including those set out in Part B of the Direction.

    EVIDENCE

    Evidence of the applicant

29. In his evidence before the Tribunal, the applicant accepted the details of his offending as set out in the Victorian Police Preliminary Brief that was used for the purpose of his sentencing for the 2015 offences.

30. In describing the incident, the applicant told the Tribunal that he and his wife had been drinking alcohol during a dinner party while celebrating Chinese New Year with friends. The applicant accepted that he had become upset with his wife because she had left the room to take a phone call and he was concerned about who she might be speaking to.  The incident then escalated into an assault.

31. The applicant told the Tribunal that there had been ongoing issues in his marriage leading up to the incident as a consequence of their different values, attitudes and life plans. The applicant described not being happy as a couple at this time. He told the Tribunal that “we were different people, we didn’t think the same way and we had different attitudes towards money”.

32. The applicant told the Tribunal that his former wife had placed a heavy emphasis on purchasing a house but that it had been difficult to do so because of his inability to secure a home loan. The applicant told the Tribunal that his wife had asked him on a number of occasions to divorce her, but that he did not want to consider divorce due to the significant impact his parent’s separation and divorce had had on him as a young man.

33. There was evidence before the Tribunal that after the applicant’s marriage to Ms Hu, he had become aware that she had been previously married to another man and maintained ongoing contact with him.

34. The applicant accepted that during the incident he had grabbed his wife’s hair and jaw hard while asking her questions about her friends and who she had been talking to. The applicant accepted that he had grabbed his wife around the neck causing her to have difficulty breathing for around 3 to 4 seconds. The applicant accepted that he had grabbed his wife’s wrist and told his wife that he would break her wrist if she divorced him. According to the Preliminary Brief Ms Hu then became scared that the accused might break her wrist and when the opportunity presented, she ran out of the house and sought help at a local police station.

35. In the course of his evidence, the applicant was fully acknowledging of his responsibility for the 2015 offences. He told the Tribunal that he had been “violent” towards his former wife. He told the Tribunal that he had been drinking during the evening but that he did not believe that alcohol was an excuse. He told the Tribunal that he “lost control” of his emotions. He told the Tribunal: “I admit what I did… what I did was very wrong”.

36. The applicant told the Tribunal that within a couple of weeks of the incident the couple had reconciled. Ms Hu withdrew the intervention order that had been put in place following the incident and moved back in with the applicant. The applicant told the Tribunal that Ms Hu had accompanied him to the court hearing for his sentencing.

37. There was evidence before the Tribunal of a reference letter that Ms Hu had provided to the Court in support of the applicant and a further support letter Ms Hu provided to the Department dated 23 August 2017. In Ms Hu’s support letter to the Department she states:

    So I submitted a character reference to the court at the trial on 27 May 2015. After that, our relationship became more and more smooth. Most of time, we tried to think about each other, not just being selfish. It worked well and we really enjoyed our family life. We are happier than before. Now and then Tong surprised me with little gifts and also got me out for dinners in restaurants. Last year he purchased two Comedy Show tickets to celebrate my birthday. I enjoyed the show and we laughed all the way along. Those sweet & tender moments my husband created for me every now and then really warm my heart and I know that he is the man that I want to be with for the rest of my life.

38. The applicant told the Tribunal that the couple then remained together until around the middle of 2018. While describing ups and downs in the relationship during that period, the applicant told the Tribunal that there had been happier times, in particular his time living with Ms Hu in Adelaide. He described that during this period the couple would go out more, including to fashion shows and the zoo, and that he had made a greater effort to do more of the house work. He told the Tribunal that during this period there were occasionally minor issues with his former wife but that he had dealt with them calmly by talking them through with his wife and resolving them.

39. The applicant told the Tribunal that following the incident he had made a real effort to change his behaviour, including by being more responsive to Ms Hu’s wants and needs and also by ensuring that he did not drink to excess. The applicant told the Tribunal that he did not consider that he had a substantive issue with alcohol previously, but that he did on occasion drink more than he should, and that following the incident he had been very careful to ensure that that did not occur again. There was no evidence before the Tribunal of the applicant having a substantive issue with alcohol and the Tribunal accepts the applicant’s evidence in this respect.

40. The applicant gave evidence to the Tribunal in relation to the Positive Lifestyle Program he undertook with the Salvation Army. He described the course in some detail, going through a number of topics that were covered by the course, including how to manage issues, better understand yourself and improve your self-control and self-awareness, and stress management. The applicant described in considerable detail what he believed he had learnt from the course, including about the importance of staying calm in response to stress and thinking things through before speaking or acting. He told the Tribunal that following the course he was determined to make changes to his life consistent with what he had learned from the course and to become a better person. The Tribunal found the applicant’s evidence with respect to his learnings from the course to be particularly impressive and credible.

41. Following his separation from Ms Hu in around the middle of 2018, the applicant left Adelaide to move to Ballarat in Victoria where he took up employment in a massage shop run by his friend Mr Wu. The applicant had worked for Mr Wu as a massage therapist and assistant manager previously while living in Victoria. It was while working with Mr Wu in Ballarat that the applicant met his current wife Ms Shi. They met in around July or August 2018 while she was working as a temporary receptionist at the massage shop. They began dating towards the end of 2018.

42. The applicant described his relationship with Ms Shi as being very loving. He described the significant emotional turmoil that his detention had created for both himself and his wife, given that his son had been born only a number of days after he was taken into detention, and as a consequence he had not been able to support his wife during this time. Despite the applicant’s best efforts to secure permission to be present at his son’s birth he was denied that opportunity.

43. The applicant described the strong bond he felt towards his son and again the significant sense of remorse he feels due to his separation from him at what should otherwise be a very happy and beautiful time. There was evidence before the Tribunal that the applicant maintained daily contact with Ms Shi by telephone and also by videophone when he can.

44. The applicant described in some detail his plans for the future including: his desire to help bring up his son with Ms Shi; to secure work and be able to provide financially for his family; to support his wife in pursuing her career ambitions; his desire to one day get a home; and his desire to one day have a big marriage celebration with his family back in China.

45. The applicant expressed significant regret for his conduct and his strong determination to avoid any repeat of that behaviour in the future. He told the Tribunal “I have learnt that violence does not solve problems, it’s against the law and it can only hurt”.

46. The applicant acknowledged the significant impact his conduct has had not just on his former wife but also on his current wife. He acknowledged the very difficult circumstances his wife currently has to manage, including caring for their son without the applicant’s support and also dealing with her own stress and anxiety. The applicant told the Tribunal that these are significant changed circumstances for him, saying “I now have a wife and child and I want to be there for them”.

47. The applicant expressed particular concern for his wife as she does not have the support of family in Australia and only has limited support from friends as a consequence of the reluctance of people to visit due to the coronavirus. The applicant told the Tribunal that his son was “feeling insecure and he needs to be constantly held otherwise he will start crying”. He told the Tribunal that his wife had become quite depressed since he was taken into detention; that she has mood swings and that she cries a lot on the phone. He told the Tribunal that “it has had a big impact on her”.

48. The applicant told the Tribunal that he did not want to return to China as he has made a life for himself here in Australia. He also told the Tribunal that he did not believe that his wife would want to return to China and that together they wanted their son to grow up in Australia. He described the difficulty of securing support from family back in China as his mother was suffering lung cancer and his wife’s parents are still working full time.

49. The Tribunal found the applicant to be a very credible and persuasive witness and accepts the truthfulness of the evidence he gave to the Tribunal as summarised above.

    Evidence of Ms Shi

50. In her evidence before the Tribunal, the applicant’s current wife, Ms Shi, told the Tribunal that she began a relationship with the applicant towards the end of 2018 and they fell in love. She described the applicant as being her “soulmate”. Ms Shi told Tribunal that they had planned to get married but that she had then fallen pregnant. They were married on 16 January of this year. Ms Shi told the Tribunal that both she and her husband are very happy about having a son but that it has been “horrible” to be separated from husband during his time in detention.

51. Ms Shi told the Tribunal that giving birth to her son while her husband was in detention was extremely traumatic and that it had been very challenging raising her son in his ongoing absence. Ms Shi told the Tribunal that she had very limited support, given that her parents had not been able to travel to Australia due to the coronavirus, her friends had been cautious in attending her house due to the coronavirus and, in addition, the applicant’s mother has been unable to come to Australia due to both the coronavirus and also her ongoing lung cancer concerns. Ms Shi told the Tribunal that taking care of the baby by herself has been very difficult, particularly due to his unsettled nature. She said “I am anxious. I am depressed. I am alone”. Ms Shi told the Tribunal that she had seen a psychologist to help with her mental health concerns but that support had also become more difficult because of the practical constraints in undertaking face-to-face sessions as a consequence of the coronavirus.

52. Ms Shi told the Tribunal that she maintains in very regular contact with the applicant, speaking to him by phone multiple times a day and also by videophone daily. She told the Tribunal that she had visited the applicant four times while he had been in detention but that she was no longer able to do this due to constraints because of the coronavirus.

53. Ms Shi described the strong bond that she has observed between the applicant and their son. She described the applicant holding their son during visits in a very loving and caring way.

1. Ms Shi told the Tribunal that during the time they had been together the applicant had always been “an honest and caring guy” towards her and their son. She described the applicant as being very supportive of her during her pregnancy, and the practical measures he took to reduce her levels of stress during that period. Ms Shi told the Tribunal that the applicant “cooked for me every day”. She also described the ongoing concern the applicant has demonstrated towards her since his detention, telling the Tribunal “he is always on the phone and is concerned for my stress because I am on my own”.

2. Ms Shi told the Tribunal that the applicant had explained his previous offending to her and that the behaviour is not consistent with the person that she has come to know. She told the Tribunal “he loves us and he won’t do anything to hurt us”. Ms Shi told the Tribunal that the couple had focused on the importance of working through any problems that they have together in a calm and considered way, and that so far in their relationship they had not had any significant quarrels.

3. Ms Shi also gave evidence to the Tribunal about her reluctance to travel back to China if her husband was required to return there. She told the Tribunal that she has made a life for herself in Australia and that she would be very concerned about making a decision to take their son back to China, given the significant future consequences that could have for him in terms of his future life opportunities.

4. Ms Shi’s evidence to the Tribunal was consistent with the broader evidence and very compelling. The Tribunal accepts the truthfulness of the evidence she gave to the Tribunal as summarised above.

   Evidence of Billy Wu

5. The applicant’s friend and former boss, Billy Wu, also gave evidence to the Tribunal. The Tribunal found Mr Wu’s evidence to be very frank and considered and accepts the truthfulness of his evidence to the Tribunal as summarised below.

6. Mr Wu told the Tribunal that he first met the applicant in around 2013 when he employed him as a massage therapist in his new massage business. He described becoming “pretty close friends” with the applicant who he valued as a very loyal, professional and hard-working employee, but also someone who he was able to talk through business issues with. He told the Tribunal “we have been through some difficult business times together”.

7. Mr Wu described being very surprised when he learned of the 2015 incident. He told the Tribunal that he believed that “maybe alcohol influenced him” but that he did not believe the applicant had a broader issue with alcohol. He told the Tribunal that the applicant had clearly limited his use of alcohol when drinking in his presence since the incident.

8. Mr Wu told the Tribunal that he had seen the significant impact the applicant’s ongoing detention has had on Ms Shi. He described receiving a text message from the applicant saying that he was being taken into detention just prior to Ms Shi going into hospital for the birth of Aaron. He described the circumstance they both confronted at that time as being “a tragedy” for both of them. Mr Wu described making arrangements to pick Ms Shi up from the hospital after Aaron’s birth as there was no one else to do so. He also described other practical measures he had taken to help support Ms Shi during the applicant’s ongoing detention. He described his relationship with Ms Shi as being a bit like “a big brother”. He told the Tribunal “it’s been very tough and that’s why I have offered to help her”.

9. Mr Wu described the 2015 incident as one which was very much out of character for the applicant. He told the Tribunal that he believed it was an isolated incident and that the applicant had expressed very serious remorse for what had occurred, and has also taken significant steps to ensure it is never repeated, including receiving professional help and also undertaking a course to better understand how it occurred and how can be avoided in the future. Mr Wu told the Tribunal that he was confident that the applicant posed no risk to either his current wife or anyone else. He told the Tribunal “I know him and I trust him”. Mr Wu described the applicant as having a very loving relationship with his current wife and also told the Tribunal that he believed the fact that they now have a son would also be a further positive influence on the applicant given that he knows him to be very much a “family man”.

   Evidence of Patrick Newton

10. The Tribunal also heard evidence from forensic clinical psychologist Mr Patrick Newton. The Tribunal accepts that Mr Newton is a highly credentialed clinical psychologist. The Tribunal accepts his evidence as reliable and places significant weight on it.

11. Mr Newton’s evidence to the Tribunal was that the applicant is a “low risk” of reoffending, noting that in his view the applicant has “developed good insight into issues associated with his conduct, he accepts responsibility for his actions, expressed apparently genuine remorse and has undertaken specific treatment to address these issues”. In his direct evidence Mr Newton told the Tribunal that “low risk equates to minimal risk in all the circumstances”.

12. When asked under cross-examination whether the fact that the applicant has now been in detention and, in addition, now has a newborn son would increase the stressors in his life and potentially pose a risk in that context, Mr Newton told the Tribunal that in his view any such stressors would most likely be managed through mature cooperation and increased bonding with his wife. He told the Tribunal “this relationship is cooperative”. He told the Tribunal these changed circumstances do not alter his overall risk assessment.

13. Mr Newton also told the Tribunal that he was satisfied that the applicant had demonstrated real and genuine benefit from the Salvation Army Positive Lifestyle Program. He told the Tribunal that the applicant demonstrated being “clearly engaged” in the program and having “actively” participated in it, and that the applicant has also demonstrated changed behaviours as a consequence of the program including, for example, his reduced use of alcohol.

    Evidence of Gail Baker

14. The Tribunal also received evidence from social worker Ms Gail Baker. The Tribunal accepts that Ms Baker is a highly credible and professional social worker with extensive practical experience in domestic violence. The Tribunal has placed some weight on Ms Baker’s opinion although not as great a weight as Mr Newton for the reasons explained further below.

15. Ms Baker gave evidence regarding an assessment she had made in relation to the applicant, and told the Tribunal than in her view the applicant represents a minimal or no risk of further reoffending. Ms Baker described a number of protective factors that she considered to be relevant to this assessment, including that the applicant is highly emotionally intelligent, acknowledges his offending behaviour and takes full responsibility for it, accepts the impact his offending has had, has taken positive steps to avoid repeating such behaviour and that he has a good understanding of what he has at risk if he were to reoffend again in the future. Ms Baker also noted that the applicant had not exhibited such behaviour either before or since the incident and that in her view it should be viewed as an isolated incident.

16. Ms Baker told the Tribunal that she considered it to be extremely difficult to make risk assessments of this kind but that she does so based on her “expertise of over 20 years working with individuals and families in the area of domestic violence”. Under cross examination Ms Baker conceded that she did not have a specialist training in relation to violent risk assessments, although she did contend that she had expertise to make such an assessment based on her practical experience.

    Character references

17. There was also evidence before the Tribunal of character references provided by other family members, friends and colleagues of the applicant who attest to his otherwise good character. For example, in a letter dated 20 August 2019, Bin Wang states:

    I wanted to write to tell you about my friend, Tong Zhang, who is one of the best people I have ever met. I am truly lucky to have him in my life, and I can only hope that I’m able to make you see him the way I do.

    My friend Tong is an amazing person, to say the least. He is giving and kind and openhearted, and anyone who comes into contact with him walks away feeling a little better about himself. When I was depressed because of my unsatisfactory academic performance, he was also guiding and encouraging me to overcome it, so that I could actively face and change the difficult status.

    CONSIDERATION

18. The preliminary question for consideration by the Tribunal is whether or not the applicant fails the character test as set out in section 501(6)(d) of the Act.

19. In considering whether the applicant fails the character test under section 501(6)(d) of the Act, it is necessary to determine what is meant by the term “risk” for the purpose of the section.

20. The Tribunal accepts the submissions made by the respondent in their Statement of Facts, Issues and Contentions in respect of the relevant case law and other guidance in relation to the meaning of the term “risk” in this context as follows:

    14. Section 2, paragraph 6 of Annex A to Direction 79 provides guidance on the application of the character test and assessment of risk in relation to future conduct under s. 501(6)(d). Paragraph 6(2) provides that the ground is enlivened if there is evidence suggesting that there is “more than a minimal or remote chance that the person, if allowed to enter or remain in Australia, would engage in [the specified] conduct”. It is noted that it is not sufficient to find that the person has engaged in such conduct in the past; there must be a risk that the person would engage in the specified conduct in the future.

    …

    18. The “risk” required to enliven s501(6)(d)(i) can be gleaned from the language adopted in that provision, namely that of a “risk”. As noted by DP Forgie in QKVH v Minister for Home Affairs [2018] AATA 1855 at [11]–[13], the word risk is not qualified by any adjective such as “significant”, “substantial” or “real”. This understanding of s501(6)(d)(i) is reinforced by the legislative history of s501.

    19. Prior to the enactment of the Migration Amendment (and General Visa Cancellation) Act 2014, the level of risk required to enliven s 501(6)(d)(i) was that of a “significant risk”. The word “significant” was removed by that amending Act. The legislative intent is summarised at [46] of the Explanatory Memorandum as follows:

    The purpose of this amendment is to clarify the threshold of risk that a decision-maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.

21. Accordingly, in the Tribunal’s view, when assessing “risk” for the purpose of section 501(6)(d) of the Act, the question is not whether there is a significant or substantial risk, but rather whether there is a risk that is more than a minimal or trivial risk. Further, it is not sufficient to establish that the applicant has engaged in criminal conduct in the past. Rather, what needs to be established is that there is an ongoing risk of the applicant engaging in such conduct in the future that is more than minimal or trivial.

22. In some parts of the respondent’s submissions the respondent relies solely on section 501(6)(d)(i) as being the basis upon which the applicant fails the character test. In other parts of it submissions, the respondent also appears to rely on section 501(6)(d)(ii) as being an alternative basis for the applicant failing the character test.

23. No substantive evidence was presented to the Tribunal regarding there being a risk that the applicant would engage in behaviour that falls within the description set out in section 501(6)(d)(ii), and the Tribunal is satisfied that there is no basis on the evidence before it to conclude that there exists more than a minimal or trivial risk that the applicant would engage in such behaviour.

24. The Tribunal now turns to the question of whether the applicant otherwise fails the character test under section 501(6)(d)(i).

25. The respondent contends that the applicant’s 2015 offences are reflective of a propensity for the applicant to engage in offending behaviour when confronted with stressors in his life.

26. The respondent submitted that the nature of the applicant’s 2015 offences were very serious criminal offending and the Tribunal certainly agrees.

27. Domestic violence of any kind is abhorred by the Australian community. It can result in very significant psychological as well as physical harm.

28. The Tribunal is satisfied based on the materials before it that the victim of the applicant’s offending was genuinely scared for her safety at the time of the offending, and it is reasonable to infer from this that the incident had an ongoing impact on her.

29. While the Tribunal acknowledges that the applicant subsequently reconciled with his former wife that does not take away from the seriousness of the incident itself. The Tribunal also acknowledges that the offending did not lead to a term of imprisonment, however, again, that does not take away from the seriousness of the offending. The Tribunal’s conclusion in this respect is consistent with paragraph 11.1.1(1) of the Direction which relevantly states that:

    In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to:

    …

    b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed.

30. The Tribunal is also satisfied that if the applicant were to engage in similar offending in the future, it would have the potential to cause very serious psychological and physical consequences for members of the Australian community.

31. However, it is not sufficient for the purpose of the character test that the applicant has engaged in this type of conduct in the past. The question is whether the risk of him engaging it such conduct in the future is more than minimal or trivial.

32. Counsel for the applicant contends that the 2015 offences were an isolated incident that do not reflect the true character of the applicant, and that the risk of the applicant engaging in criminal conduct again in the future is no greater than a minimal or trivial risk. In support of this contention, counsel for the applicant cites the evidence of the applicant himself, the applicant’s current wife, his friend and former colleague Mr Wu as well as the statements of other family members and also the numerous character references provided by friends and former colleagues. Counsel for the applicant further contends that the risk of the applicant reoffending is substantially mitigated by a number of factors including:

    (a)     that the applicant pled guilty to his offending and accepted full responsibility for it at an early stage;

    (b)     that the applicant has demonstrated genuine insight into his offending, understanding of the triggers that gave rise to his offending, and genuine remorse for his offending;

    (c)     that the applicant has had the opportunity to reflect on his offending and consequences that it had for his former wife and also for his broader family including his new wife and young child;

    (d)     that the applicant is now fully aware of the extremely serious consequences that would flow if he were to ever reoffend again in a similar manner;

    (e)     that the applicant has not offended either before or subsequent to his 2015 offences;

    (f)      that the applicant has the strong support of friends and family;

    (g)     the observations of his otherwise good character as presented by friends and family in materials before the Tribunal;

    (h)     that the applicant has undertaken proactive steps to properly understand his offending and ensure that he does not reoffend including undertaking the Salvation Army Positive Lifestyle Program; and

    (i)       the applicant’s changed behaviour as a consequence of his offending including reducing his consumption of alcohol.

33. In addition, counsel for the applicant contends that the assessment of the risk as being no greater than minimal is consistent with the expert evidence provided by Mr Newton and Ms Baker. Counsel for the applicant contends that this fact should be particularly persuasive in the Tribunal’s assessment of risk. In support of this contention, counsel cites the decision in Nigro v Secretary to the Department of Justice [2013] VSCA 213, in which the Court discussed the central role of expert evidence in assessing the risk of recidivism in criminal matters, stating that:

    Predicting the prospect of a person committing a criminal offence in the future is notoriously difficult. The Act recognises that the prediction of risk is in large part a matter for expert opinion which obliges the court to take into account any assessment report filed. The making of a prediction requires expertise which judges do not have. It calls for observation and assessment of those who commit the particular type of offence and a detailed knowledge of the types of factors, both personal and environmental, which increase or reduce the risk of further offending. The necessary expertise combines the ability to make a qualitative assessment of the individual and the ability to utilise the available quantitative risk assessment instruments. A risk assessment report would ordinarily be at the centre of any court evaluation of the level of risk.

34. While the respondent accepts that the risk of the applicant reoffending in a similar manner again is low, it does not accept that it is so low as to amount to a minimal or trivial risk.

35. The representative for the respondent contends that it is likely that the applicant will be subjected to additional stress and challenges in his life. The respondent pointed to challenges such as being married with a newborn son, and also challenges he has faced while in detention. The respondent contends that that while the applicant has taken some steps to address his behaviour, he has not demonstrated a sufficient level of insight into his offending or acknowledgement of responsibility for his offending to suggest that the risk of him behaving in that manner again is so low as to be described as minimal or trivial.

36. The representative for the respondent contends that the expert evidence of Ms Baker should be given less weight by the Tribunal given the fact that Ms Baker has not had any formal training in assessing recidivism in relation to violent offenders. The representative for the respondent accepted the expert evidence of Mr Newton and his assessment of the risk of the applicant reoffending as being low, although the representative did not specifically address the observation made by Mr Newton that in assessing the risk as low he considered that risk to be “minimal”.

37. In addition, the respondent relies on other factors that it says are indicative of a heightened risk of the applicant reoffending including:

    (a)     the applicant has at various times sought to downplay the nature of his offending or shift blame for his offending, demonstrating a lack of full acceptance of responsibility for his offending and also a lack of insight;

    (b)     the applicant has been inconsistent in his explanations for his offending over time and this also demonstrates a lack of full acceptance for his offending and responsibility for it;

    (c)     the applicant ticked “no” to the question concerning criminal convictions in his incoming passenger cards of 19 March 2017, 22 November 2016 and 18 February 2016 which demonstrates a disregard for Australian laws and also a lack of accountability and responsibility for his offending;

    (d)     the applicant harbours jealousy or paranoia in relation to his ex-wife’s ex-husband; and

    (e)     the applicant has not presented evidence of rehabilitation or engagement with any domestic violence services to address his behaviour.

1. Having considered all the evidence, the Tribunal is satisfied that the applicant’s behaviour that led to the 2015 offences can reasonably be viewed as a “one-off” or isolated incident and one that is not reflective of his broader character. This conclusion is strongly supported by the fact that the applicant has no other record of offending, either before or after the incident.

2. The weight of the evidence demonstrates that over the course of the applicant’s life, the applicant has earned a reputation for being intelligent, loyal, hard-working and a person of integrity. This is supported by the evidence of the applicant’s current wife, his friend and former colleague Mr Wu, as well as statements made by other family members and friends and former colleagues. The applicant has a clear record of high achievement, including obtaining substantive professional qualifications from a reputable Australian educational institution. He also has a very strong record of employment as reflected by the ongoing willingness by his former employer Mr Wu to provide future employment if he is released back into the community.

3. The Tribunal is also satisfied that the applicant has expressed genuine remorse for his offending, and took proactive steps to ensure that he properly understood the nature of his offending and what he needed to do to ensure that he did not engage in that type of behaviour again in the future. The Tribunal found the applicant to be a very impressive and credible witness. The applicant made it clear to the Tribunal in his direct evidence that he feels genuine remorse for his offending, and the proactive steps he has taken since to understand the triggers for his offending and how to better deal with his emotions further supports this conclusion.

4. The Tribunal does not accept the contention that the applicant has presented no evidence of rehabilitation or efforts to address his behaviour as submitted by the respondent. In fact quite the contrary. It was clear to the Tribunal that in describing the details of the Salvation Army Positive Lifestyle Program, the applicant had genuinely engaged in the program and taken considerable learnings from it. He spoke about the program with both detail and passion. This observation was further reinforced by the observations of Mr Newton and Ms Baker in their evidence to the Tribunal.

5. The Tribunal also accepts that the applicant has taken practical steps in response to these learnings including by reducing his use of alcohol and making a conscious effort to change the way he addresses stress and personal issues in the context of his relationships. Again, the Tribunal found the applicant’s evidence in this respect to be very persuasive, and it was also further supported by the evidence of the applicant’s wife, Mr Wu and Mr Newton.

6. The Tribunal accepts that the applicant has fully acknowledged the true nature of his offending, shown insight into his offending and taken full responsibility for it. Again, the Tribunal rejects the respondent’s submission to the contrary. In his direct evidence the applicant acknowledged the full extent of his offending. He admitted that he had assaulted his ex-wife in accordance with the Victorian Police Preliminary Brief. He admitted that she had been scared by his behaviour and that it had harmed her. This conclusion is also supported by observations made by Mr Newton in his evidence.

7. The Tribunal is also satisfied that the applicant has a very clear understanding of the consequences his offending had not just on his former wife, but also on his current wife and son. In addition, it was clear from his evidence that the applicant understood the very serious consequences that would flow to him if he were to reoffend again at any time in the future.

8. In the course of his evidence the applicant described in some detail his positive plans for the future, including his desire to spend time with his wife and family, to obtain future employment and also to be able to provide financially for his family. It was clear to the Tribunal that the applicant has a genuine affection for his wife and baby son, and the potential to be denied the opportunity to be with them here in Australia represents a very strong disincentive for any future criminal offending.

9. The Tribunal also accepts that the applicant will have the benefit of the strong support of friends and family on his release. In particular, the applicant’s friend and former colleague Mr Wu who has offered to assist him in his transition including by offering him employment.

10. The respondent submitted that the applicant lacks insight into his offending and has sought to downplay it or shift blame. The respondent cites a number of examples in support of this submission, including that in submissions made on behalf of the applicant to the Department dated 21 May 2018 include the following references:

    (a)     That the applicant’s convictions stemmed from “what could initially be described  as a typical domestic dispute”;

    (b)     The applicant is: “often frustrated by her not infrequent acts of irrationality and stubbornness”;

    (c)     The offending was “understandable given the extenuating circumstances”; and

    (d)     The offending was “due to the consumption of alcohol and their youthful exuberance”.

11. In the Tribunal’s view, great care needs to be exercised in holding the precise wording of a lawyer’s submission against the applicant in the manner suggested by the respondent. English is not the applicant’s first language and it is reasonable to infer that he may not have been fully aware of every nuance in every word adopted in the submissions.  The submissions should also not be used selectively but rather must be considered as a whole. In the same submission dated 21 May 2018 the applicant’s lawyer states:

    [The applicant] acknowledges that his conduct was utterly unbecoming of a husband and he instructs that he was, and is to this date, completely disgusted with the way in which he handled himself and the situation.

12. This view of the applicant’s state of mind is consistent with the direct evidence of the applicant at the hearing. The applicant made clear to the Tribunal that while alcohol consumption may have been relevant, he did not seek to rely on it as an excuse. He accepted that he was emotionally impacted by the circumstances of his ex-wife’s telephone call and questions in his mind about who she might be speaking to, but fully accepted that the manner in which he dealt with those emotions was wrong and that he is responsible for the behaviour.  The Tribunal accepts the applicant’s evidence in this respect.

13. The respondent also referenced an earlier statement made by the applicant where he described pleading guilty to the charges because his lawyer had advised him they were “minor” and would not affect his visa status.

14. The applicant acknowledged that his earlier statement has described his lawyer’s advice that the offences were “minor” but told the Tribunal that the lawyer in question was not a migration lawyer and that he had been wrong in his characterisation of the incident and its potential impact on his visa status. The Tribunal is not satisfied that the use of the word “minor” in the earlier statement reflects the applicant’s assessment of the offence either then or now. At various points through the course of the applicant’s evidence he acknowledged that his behaviour on that evening had been wrong and harmful and was a matter of significant personal regret. He told the Tribunal “I made the guilty plea because I knew it was wrong”. The Tribunal is satisfied that the applicant fully accepts the seriousness of his offending behaviour.

15. The respondent also submitted that the applicant had been inconsistent in his description of his offending and that this also demonstrates lack of insight and full acceptance of responsibility. The respondent cites as an example a statement made by the applicant to the police on the evening of the incident where he is reported to have stated that he grabbed his wife’s “arms, nose and ear with pressure, like treating a baby” which is inconsistent with his later statements where he accepts that he assaulted her.

16. The applicant told the Tribunal that his statement to police on the evening of the incident had been made while he was still impacted by alcohol, but that when he was subsequently shown the Preliminary Brief, which included more specific details of his former wife’s statement of the incident, he realised how serious the incident had been and accepted full responsibility for it. The Tribunal accepts the applicant’s explanation in this respect.

17. Based on all of the evidence the Tribunal is satisfied that the applicant has demonstrated genuine insight into his offending, acknowledges the seriousness of his offending and accepts full responsibility for it.

18. Under cross-examination the applicant maintained the truthfulness of all the statements that he had made to the Department with respect to the nature of his relationship with his former wife. The Tribunal accepts the applicant’s evidence with respect to the accuracy of his statements regarding the nature of his relationship with his former wife. In forming this view, the Tribunal acknowledges that when considered as a whole, it was clear through the applicant’s evidence that he was describing a relationship that had its ups and downs but that fundamentally he had loved his former wife and had made very genuine attempts to maintain his marriage until around the middle of 2018. The Tribunal does not accept the respondent’s contention that any of the statements that had been made by the applicant to the Department were fundamentally inconsistent with the nature of the relationship as described by the applicant in his evidence to the Tribunal. The Tribunal accepts the applicant’s evidence in this respect.

19. The respondent submitted that the risk of the applicant reoffending was also heightened by what it alleged as being incomplete statements made by the applicant on various incoming passenger cards that he had completed following his conviction for the 2015 offences. The Tribunal understood the respondent’s representative to be inferring that the fact that the applicant had ticked “no” to a question on the incoming passenger cards asking whether or not he had any criminal convictions suggests that the applicant cannot be relied upon to be completely truthful and also demonstrates a disregard for Australian laws.

20. The Tribunal rejects any such inference. During the course of his evidence, the applicant conceded that he had ticked “no” to the questions on the incoming passenger cards, but said that he had done so in a genuine belief that he had satisfied the conditions of his good behaviour bond and that in those circumstances he no longer had a recorded conviction against his name. Again, the Tribunal found the applicant’s evidence to be consistent and reliable and accepts it as truthful. In addition, it was clear from the materials before the Tribunal that the applicant fully disclosed his offending when he subsequently applied for his visa in 2017. In these circumstances, the Tribunal is satisfied that the applicant did not have an intention to mislead in completing the incoming passenger cards referred to by the respondent. Further, the Tribunal is not satisfied that the manner in which the applicant completed the incoming passenger cards provides a reasonable basis for concluding that the applicant has a general disregard for Australian law or is otherwise at any heightened risk of reoffending.

21. The respondent also contends that the fact that the applicant now has a new wife and young child will likely present significant additional stress in his life once released back into the community, and that this in turn may present as a trigger for future reoffending. The Tribunal rejects this contention. Both the applicant and Ms Shi were fully acknowledging of the challenges that they will face in the future together, including in relation to raising their son and securing their financial future. The Tribunal found the applicant’s evidence in this respect to be very frank and insightful. In addition, the Tribunal is satisfied that as a consequence of the applicant’s reflections on his offending, the course he undertook to better understand the nature of that offending and the steps he has taken to ensure that he better manages his behaviour in the future, the applicant is well-placed to be able to manage those stressors and challenges in a manner that does not result in the type of behaviour in which he engaged in 2015. For the reasons described above, the Tribunal is satisfied that there are a number of very significant factors which mitigate against any likelihood that the applicant would engage in the type of behaviour that led to the 2015 offences.

22. The respondent also referenced in its written submissions that the applicant is at heightened risk of reoffending due to what it described as ongoing “jealousy or paranoia with respect to his ex-wife’s ex-husband”. There was no substantive evidence presented at the hearing to support this contention and the Tribunal rejects it.

23. In considering this matter the Tribunal accepts the contention put by the applicant that it should have very careful regard to the risk assessment conclusions of the expert witnesses presented to the Tribunal. The Tribunal found both expert witnesses to be extremely credible and persuasive, however the Tribunal does acknowledge the respondent’s point in relation to Ms Baker’s qualifications and has therefore placed a greater weight on the evidence of Mr Newton. Having said that, the Tribunal did not find their evidence to be inconsistent in any material respect.

24. Mr Newton was very clear in his assessment of the risk of the applicant reoffending as being low. He formed that view having applied a number of different diagnostic tools to assess risk as set out in his initial report. Mr Newton made it very clear that other than the fact that the applicant has offended previously, all of the other factors relevant to the assessment of risk are suggestive that the risk of the applicant reoffending is low. These other factors include an absence of a propensity to “act out”, an absence of behavioural dysregulation, an absence of broader psychological dysfunction, good societal function, good employment, good relational function, good communication skills and good mental health. Mr Newton told the Tribunal that in his view, having regard to all of the circumstances of the case, the risk of the applicant reoffending equates to a “minimal” risk. The Tribunal acknowledges Mr Newton’s expertise in assessing recidivism and taking into account of all of the other evidence before it, the Tribunal accepts Mr Newton’s assessment of the level of risk in this case.  

    CONCLUSION

25. For these reasons, the Tribunal is satisfied that the risk of the applicant reoffending or otherwise engaging in criminal conduct in the future is a minimal risk. Accordingly, the applicant does not fail the character test on the basis of section 501(6)(d)(i) of the Act. Further, the Tribunal is satisfied that there is no other basis for concluding that the applicant fails the character test as set out in section 501(6) of the Act.

26. Given the Tribunal’s conclusion in this regard, it is unnecessary for the Tribunal to give consideration to the secondary question regarding the exercise of the residual discretion in section 501(1) of the Act.

    DECISION

27. The Tribunal sets aside the decision made by the delegate of the respondent dated 19 December 2019 and in substitution decides not to refuse to grant the applicant a Skilled (Residence) (Class VB) visa under subsection 501(1) of the Migration Act 1958 (Cth).

I certify that the preceding 117 (one hundred and seventeen) paragraphs are a true copy of the written reasons for the decision of The Hon. Matthew Groom, Senior Member

[sgd]...................................................

Associate

Dated: 30 April 2020

Dates of hearing:

8 and 9 April 2020

Counsel for the Applicant:

Ms Roz Germov

Solicitors for the Applicant:

Cliffords Lawyers

Advocate for the Respondent:

Solicitors for the Respondent:

Mr Adam Cunynghame

Sparke Helmore Lawyers