ZRRD and Minister for Home Affairs (Migration)

[2018] AATA 4185

ZRRD and Minister for Home Affairs (Migration) [2018] AATA 4185 (7 November 2018)

Division:GENERAL DIVISION

File Number(s):      2018/4756

Re:ZRRD

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:The Hon. Matthew Groom, Senior Member

Date:7 November 2018  

Place:Melbourne

The decision under review is affirmed.

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

The Hon. Matthew Groom, Senior Member

Catchwords

MIGRATION – Bridging E (Class WE) refusal under s 501 – whether the applicant passes the character test – where the applicant has a history of family violence offences – applicant does not pass the character test – whether the discretion should be exercised in the applicant’s favour – factors against grant outweigh factors for grant – decision under review affirmed

Legislation

Migration Act 1958 (Cth)

Cases

Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Secondary Materials

Migration Amendment (Character and General Visa Cancellation) Bill 2014 – Explanatory Memorandum

Ministerial Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

The Hon. Matthew Groom, Senior Member

INTRODUCTION

1. This is an expedited review of a decision made by a delegate of the respondent to refuse an application for a Bridging E (Class WE) visa under s 501(1) of the Migration Act 1958 (the Act).

2. The delegate’s decision was made on 14 August 2018.[1]

   [1] G Documents (GD) 2.

3. The applicant sought an Administrative Appeals Tribunal review of the delegate’s decision on 23 August 2018, within the timeframe provided for in s 500(6B) of the Act.

4. The Tribunal must make its decision by 7 November 2018. Otherwise, the delegate’s decision is taken to be affirmed.[2]

   [2] Section 500(6L) of the Act.

5. In accordance with s 35(3) of the Administrative Appeals Tribunal Act 1975, the Tribunal has made an order in respect of this matter restricting the publication of any information which may identify the applicant or any immediate family members of the applicant. In compliance with this order and for the purpose of this decision, the applicant in this matter has been assigned the pseudonym ‘ZRRD’.

6. The hearing in this matter was conducted on 31 October 2018. The respondent was represented by Mr David Brown of the Australian Government Solicitor and the applicant was unrepresented. In reaching its decision, the Tribunal has carefully considered the oral testimony of the applicant as well as all of the documentary evidence before it.

   BACKGROUND

   General background

7. The applicant is a 38-year-old citizen of Romania who first arrived in Australia on 13 May 2015 as the holder of a visitor visa which was valid until 14 June 2016.[3]

   [3] GD 32.

8. Prior to his arrival in Australia the applicant had lived in Germany, Spain and before that, Italy. He claims to be a qualified industrial electrician who had worked on various projects in different parts of Europe. More recently, the applicant worked in a business trading second hand car parts into the Middle East.

9. The applicant was subsequently granted an extension to his visitor visa until 31 October 2016.[4]

   [4] Ibid.

10. On 31 October 2016 the applicant applied for a Partner visa sponsored by his then partner who, for the purposes of these reasons, will be referred to as ‘M’.[5] Pending the outcome of the Partner visa, the applicant was issued with a Bridging A visa. The Partner visa application has been the subject of various reviews and is currently the subject of a judicial review application in the Federal Circuit Court.

    [5] Supplementary Relevant Documents (SRD) 178-195.

11. Shortly after arriving in Australia the applicant met M through an internet dating site and commenced a relationship. M has a daughter from a previous marriage, who was born in 2006 and is 12 years of age.

12. Very shortly after commencing their relationship the applicant and M began a joint property redevelopment project. M contributed finance and the applicant assisted in an informal project management role. The applicant also provided some assistance in managing a number of investment properties owned by M including by providing ad hoc maintenance services. It is not clear from the evidence exactly how intensive the applicant’s assistance has been.  The applicant described his relationship with M as “up and down”. He described feeling overwhelmed by the relationship’s development in its early weeks, and feeling as though he was being asked to assume responsibilities that he was not ready for. The applicant described at times feeling as though he was being treated more like an employee of M.

13. In around October 2016 the applicant, M and M’s daughter travelled together to the United States. M and her daughter stayed for a couple of weeks before returning to Australia. The applicant remained in the United States. He stated that he felt that he needed time away to ‘clear my head’.

14. Shortly after M returned to Australia she told the applicant that she was pregnant with their son. The applicant described being ‘excited’ on hearing the news although he did not return to Australia until several months later.

15. Again, the applicant described tensions in the relationship on his return. According to the applicant he and M argued on a regular basis, usually over money or domestic duties.

16. The applicant and M’s son was born in July 2016.[6]

    [6] SRD 152.

17. The tension in the relationship culminated in a series of domestic violence incidents which are described in more detail below. These incidents ultimately led to the applicant’s arrest and imprisonment.

18. On 21 April 2017 M withdrew her sponsorship for the applicant’s Partner visa and the visa was subsequently refused by a delegate of the Minister on 30 May 2017.[7]

    [7] SRD 211-245.

19. On 19 July 2017 the applicant’s Bridging A visa was cancelled.[8]

    [8] SRD 115-120.

20. On 27 July 2017 the applicant was detained under s 189 of the Act. On the same day he applied for a Bridging E visa which was refused.[9]

    [9] GD 19-30.

21. On 19 June 2018 the applicant made a further application for a Bridging E visa which was also refused by a delegate of the Minister under s 501(1) of the Act on 14 August 2018 (the second Bridging E visa decision).[10]

    [10] GD 2.

22. It is the second Bridging E visa decision that is the subject of this review.

    Criminal history

23. The applicant has been convicted of the following offences in Australia[11]:

    [11] GD 9.

Date	Offence	Sentence
10 January 2017	Unlawful assault	Without conviction, pay $200 to Court fund. Ordered to complete a Men’s Behavioural Change Program
16 May 2017	Unlawful assault Commit indictable offence whilst on bail (persistent contravention of a family intervention order)	Convicted, 1 month imprisonment Convicted, 12 month community corrections order with an unpaid work requirement

1. Each of the applicant’s offences relate to incidents of domestic violence committed by the applicant against his former partner M.

2. The police records (which include a signed statement made by M) describe an extended history of abuse and threatening behaviour by the applicant against M dating back to around October 2015. It is important to acknowledge that not all of this information has been tested through an independent court process. The records note the following:

   (a)Verbal abuse and controlling behaviour since October 2015.[12] The applicant accepts that there were arguments and verbal abuse but maintains that it occurred both ways and that at times he felt that M was controlling towards him.

   (b)Two occasions around March April 2016 where M alleges that the applicant choked her and that he told her that he had done it “for fun”.[13] The incidents were not reported to police. The applicant denies the incidents.

   (c)In May 2016 when the victim was 7 months pregnant with the couple’s son, M alleged the applicant choked her. At the time the applicant and M were sitting in a car and M’s daughter was in the back seat. The applicant admitted that he placed his hand on M’s neck but that he was doing it to ‘keep her away’ and in response to M hitting him with a water bottle. He acknowledged that what he did was wrong and stated that he regretted his behaviour. This incident was the subject of a police complaint and resulted in the first charge of assault against the applicant. The applicant was found guilty but no conviction was recorded. The applicant was ordered to pay $200 into a Court fund which has never been paid. The police subsequently obtained a family violence intervention order against the applicant.

   (d)On 16 April 2017 the applicant became angry with M during a conversation about domestic chores and finances. M alleged that the applicant demanded money from her and then goaded her to call the police. M entered the living room to get her mobile phone, where her 10 year old daughter and 1 year old son were watching TV. M alleged that before she could dial police, the applicant grabbed her on the neck and dragged her toward the study, locked the door before choking her and banging her head against the wall. M alleged that she was falsely imprisoned for over 1 hour and only released when the children knocked on the door. M described feeling that she was going to be killed. The applicant acknowledges forcibly taking M into the study and physically handling her. He did not concede locking the door and was vague in his evidence on the length of time M was in the study. The applicant denied choking M. He conceded that that he had committed the offence and that what he had done was wrong and he stated that he regretted his behaviour. This incident was the subject of charges and resulted in the applicant’s conviction.[14]

   (e)On 17 April 2017 M alleges that the applicant again threatened to kill her. Police attended the family house that evening and M told them everything was OK and that they were planning to peacefully separate and “move on with our lives”.[15] The applicant denies making such a threat.

   (f)On 20 April 2017, the applicant and M went to a local park to discuss ending their relationship. According to M’s signed statement, when M questioned the applicant on whether he had really intended to kill her, the applicant responded by saying that the “next time he would choke her so that her tongue came out of her mouth and she would shit herself”.[16] At that time the police knocked on the door and the applicant was arrested and charged. Again, the applicant denied making such a threat.

   (g)The applicant was denied bail and remanded to appear at the Magistrates Court on 16 May 2017. The applicant was convicted on two counts of unlawful assault and persistent breach of a family violence intervention order. The applicant was sentenced to 1 month imprisonment and a 12 month community corrections order.[17]

   (h)Following his release from prison the applicant was placed back into detention on 27 July 2017.

   [12] SRD 97.

   [13] SRD 96.

   [14] SRD 84 and 99.

   [15] SRD 84.

   [16] SRD 100.

   [17] GD 9.

   ISSUES

3. The Tribunal is required to determine two issues in making its decision. It must first determine whether the applicant passes the “character test” under s 501(6) of the Act.

4. If satisfied that the applicant does not pass the character test, it must then consider whether to exercise the discretion under s 501(1) of the Act to refuse his application for a visa. The Tribunal is required to apply the relevant considerations in Ministerial Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction) in determining whether the discretion should be exercised.

   CONSIDERATION

   The Character Test

5. In accordance with s 501(1), the Minister may refuse to grant a visa to a person if the person does not pass the character test as defined in section 501(6).

6. A person will not pass the character test under s 501(6)(d)(i) where, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would engage in criminal conduct in Australia. Similarly, under s 501(6)(d)(ii) a person will not pass the character test where there is a risk that the person may harass, molest, intimidate or stalk another person in Australia.

7. Relevant to section s 501(6)(d) is the degree of risk a person poses. The Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014 relevantly states:

   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 provide that it amounts to a significant risk.

8. Further guidance is provided in Annex A to the Direction, which relevantly says at paragraph 6(2) and (3):

   (2)The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.

   (3) It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.

9. The respondent claims that the applicant fails the character test under both section 501(6)(d)(i) and (ii).

10. In assessing the applicant’s risk of future offending the Tribunal must consider the nature and circumstances of the applicant’s offending to date.

11. The Tribunal acknowledges that for the purposes of this decision it cannot contradict or go behind a conviction and examine the facts upon which it is based. However, that is not to be taken as denying the right of an applicant to present to the Tribunal matters that give context to a conviction.

12. In the course of giving evidence the applicant acknowledged that he committed each of the assault offences, acknowledged that his behaviour was wrong and said that he regretted his behaviour. However, throughout the course of his evidence the applicant sought to downplay his responsibility for his offending by challenging some of the factual context and seeking to impart blame onto his ex-partner.  For example, with respect to the first assault offence which occurred in the car, the applicant stated “I did put my hand around her neck but she was trying to hit me with a bottle…I was trying to keep her away from me…I didn’t really mean to choke her…I was trying to defend myself”.  In respect of the second assault offence which occurred in the study the applicant stated “...she was being aggressive…she was jealous…I took her into the study to discuss it…I was trying to protect the kids…I pushed her…we did have a fight but I didn’t grab her around the neck”.

13. The Tribunal found the applicant’s evidence in this respect to be unpersuasive. The applicant’s attempts to blame the victim demonstrate a lack of insight by the applicant into his offending and a refusal to take full responsibility for it. This is reinforced by the applicant’s disregard for family violence intervention orders, as evidenced by his conviction for persistent contravention of such orders. It is further reinforced by his ongoing failure to pay the Court fine.

14. Having considered all of the evidence before it, the Tribunal is satisfied that the two assault offences committed by the applicant can reasonably be described as serious, violent, criminal offending.

15. What is of particular concern to the Tribunal is that the offending occurred in a domestic context against a common victim, namely the applicant’s ex-partner; and also that it occurred in the presence of children, the daughter in respect of the first assault and both children in respect of the second assault. The applicant himself acknowledged that there was reason to believe that his de facto daughter had been traumatised by the first assault to such a degree that he thought that she might need counselling.

16. In addition to formal offences committed by the applicant, there was also evidence of other domestic violence perpetrated by the applicant against his ex-partner which was not reported to police.  In domestic violence settings it is not uncommon for offending to go unreported. Having considered all of the evidence, the Tribunal finds that there is a high likelihood that the applicant has engaged in other incidents of domestic violence against his ex-partner in addition to the incidents that gave rise to the assault offences. The Tribunal finds that there is an escalating seriousness to the domestic violence being perpetrated by the applicant against his ex-partner. The Tribunal finds that the assault offences themselves are demonstrative of escalating offending.

17. As recognised in the wording of the Direction, past conduct is not necessarily indicative of future conduct. To assess the potential future risk of criminal conduct it is necessary to reflect on the circumstances of the offending and the likelihood of those circumstances repeating.

18. Through his offending the applicant has demonstrated an inability to appropriately manage his emotions in the context of his personal relationship with his ex-partner. If the applicant was released into the community it is highly likely that he would at some stage be confronted with the need to manage his emotions in a similar context. While the applicant and M are now separated, the applicant is likely to have some form of ongoing relationship with M given the prospect of shared custody arrangements in respect of their son. It is also quite likely that the applicant will at some stage establish another intimate personal relationship.

19. The applicant presented evidence to the Tribunal of having undertaken a Men’s Behavioural Change Program conducted over the course of 20 weeks. The applicant stated that he found the course to be very helpful and through it he learned more about what constitutes domestic violence generally and what triggers his behaviour specifically. He stated that he learned about how to better manage anger and emotions and also about the very serious impact exposure to domestic violence can have on children. The applicant stated that he was better placed to manage his emotional outbursts as a consequence of having undertaken the program. He also stated that he was more determined to avoid domestic violence in the future because he now better understood the impact such behaviour can have on children. The applicant also gave evidence in relation to completing a number of short courses in detention, which he claims have helped him develop a greater insight into domestic violence and to learn techniques on how to better manage his behaviour.

20. However, the fact the applicant offended again in a violent manner and in the presence of children after having completed the Men’s Behavioural Change Program would strongly suggest that the course has had little or no impact on the applicant’s offending behaviour. This would suggest that despite having undertaken the program, there remains a serious risk of reoffending in the future. There was no evidence before the Tribunal that would suggest that any of the courses undertaken by the applicant while in detention are likely to have had any greater impact on the applicant’s behaviour or reduce the risk of reoffending.

21. The Tribunal does not doubt that the applicant has remorse for his offending and in particular for the consequence that it has had for him personally. The Tribunal is satisfied that the applicant feels genuine remorse for offending in front of his son and de facto step daughter. The applicant demonstrated very genuine emotional attachment to both his son and de facto step daughter. However, given that the applicant has offended in the presence of children on more than one occasion, including after having acknowledged the impact domestic violence can have on children, there is no reason for the Tribunal to be satisfied that the applicant’s desire to not adversely impact his children would lessen his prospect of reoffending in any way.

1. Given the Tribunal’s finding above in relation to the escalating seriousness in the applicant’s offending, a serious risk of reoffending would suggest a serious risk of harm to the applicant’s ex-partner or a future partner if the applicant was to be released back into the community.

2. For these reasons, the Tribunal is satisfied that there remains a risk of the applicant engaging in further criminal conduct that is more than minimal or trivial. On that basis, the Tribunal finds that the applicant does not pass the character test as set out in s 501(6)(d)(i) of the Act.

3. Given the Tribunal’s finding in respect of s 501(6)(d)(i) of the Act, it is not necessary for the Tribunal to go on and consider the prospect of the applicant also engaging in the type of behaviour set out in s 501(6)(d)(ii) of the Act.

   The Discretion

4. Having determined that the applicant does not pass the character test, the Tribunal must determine whether to exercise the discretion to refuse the applicant’s visa under s 501(1). In so doing, the Tribunal must consider the guidance provided in Direction 65 – Part B.

   Primary Considerations

   Protection of the Australian community from criminal or other serious conduct

5. Paragraph 11.1(1) of Direction 65 provides that when decision-makers are considering the protection of the Australia community they:

   …should 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. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct.  Decision‑makers should also give consideration to:

   a)The nature and seriousness of the non-citizen’s conduct to date; and

   b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

6. Section 11.1.1(1) of Direction 65 further provides:

   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:

   a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;

   b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

   c)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; 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;

   d)The principle that any conduct that forms the basis for a finding that a non‑citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;

   e)The sentence imposed by the courts for a crime or crimes;

   f)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

   g)The cumulative effect of repeated offending;

   h)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

   i)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

7. A decision-maker should also have regard to the following principle, described in paragraph 11.1.2(1) of Direction  65 as follows:

   In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.

8. Paragraph 11.1.2(2) of Direction 65 further provides:

   In addition, decision-makers should have regard to the principle that 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 should be allowed to come to, or remain permanently in, Australia.

9. Additionally, paragraph 11.1.2(3) of Direction 65 states:

   In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

   a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

   b)The likelihood of the non-citizen engaging in further criminal or other serious conduct; and

   i.information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and

   ii.evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and

   iii.the duration of the intended stay in Australia.

10. The Tribunal acknowledges that the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct.

11. For the reasons stated above, the Tribunal accepts that the applicant’s offending in connection with his assault convictions is serious, violent, criminal offending. The fact that the Court imposed a term of imprisonment for his second assault offence is consistent with this assessment.

12. The potential risk of the applicant reoffending has been substantially dealt with in the character test assessment above.

13. The Tribunal notes that the applicant’s offending has occurred in a domestic setting against his partner at the time and in the presence of children. The Tribunal also notes that there exists a trend of increasing seriousness in the applicant’s offending, and that there remains a serious risk of reoffending and a serious risk of future harm.

14. The Tribunal notes that the applicant’s offending also includes numerous breaches of family violence intervention orders and bail conditions, demonstrating a persistent disregard for authority and the court process.

15. While there was evidence of the applicant having undertaken a number of courses that were designed to assist in changing his offending behaviour, there is no evidence that suggests a reduced likelihood of reoffending as a consequence of having undertaken the courses.

16. Having carefully considered all of the evidence, the Tribunal is satisfied that the applicant’s offending is sufficient to raise serious concerns about the safety of the Australian community should the decision to refuse the applicant’s visa be overturned. For these reasons, the protection of the Australian community should weigh very heavily in favour of refusing the visa.

    Best interests of minor children in Australia

17. The Direction requires a decision maker to make a determination as to whether or not a refusal of the applicant’s visa would be in the best interests of any impacted children. This consideration needs to be weighed carefully against other considerations and is not itself determinative.[18]

    [18] Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568.

18. The applicant and M together have a son who is two years old. M also has a 12 year old daughter. Both of the children are Australian citizens by birth.

19. The applicant contends, and the respondent accepts, that the best interests of the children would be served by granting the applicant a visa and allowing him to maintain an ongoing relationship with the children. The respondent argues that despite this, the best interests of the children consideration should be given less weight when balanced against other considerations including, in particular, the protection of the Australian community.

20. The Tribunal accepts that the applicant has a very genuine emotional attachment to both his son and M’s daughter, who the applicant has considered to be his de facto step-daughter since the commencement of his relationship with M. There is no doubting that the applicant’s son would benefit from having the applicant performing the role of a stable and supportive father figure. The Tribunal also accepts that the applicant could potentially continue to perform a similar role in respect of M’s daughter which again could be of benefit to her. However, this general conclusion needs to be weighed against the likelihood of the applicant actually performing such a role, particularly when assessed in the context of the applicant’s conduct to date.

21. In addition, very careful consideration must be given to the potential harm that the children could suffer from being exposed to future domestic violence at the hands of the applicant. As the applicant himself has acknowledged, his offending has already had a significant impact on his de facto step-daughter, and the potential harm any future offending could cause the children is very significant. The previous family violence intervention order made against the applicant named both of the children as affected family members.

22. The Tribunal also recognises the relatively short period of time the applicant has been in the lives of each of the children; and in the case of the applicant’s son, the fact that he is still very young. The applicant was physically present in his son’s life for around one year before he was arrested and in the de facto step daughter’s life for just over two years. During this period the relationship between the applicant and M appears to have been volatile.

23. The Tribunal also acknowledges that M has performed the role of provider for the children and that their future financial stability is not likely to be adversely impacted by a decision of this Tribunal.

24. On balance, the Tribunal finds that it is in the best interests of the children that the applicant be granted the visa. However, for the reasons set out above, this consideration weighs only slightly in favour of the granting of the visa.

    Expectations of the Australian community

25. Paragraph 11.3(1) of Direction 65 provides:

    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal 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 be granted a visa. Decision‑makers should have due regard to the Government’s views in this respect.

26. The Tribunal notes the Federal Court decision in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 which held that this consideration is inextricably linked to the other primary considerations regarding the protection of the Australian community. The Tribunal accepts that in light of the findings above relating to a serious risk of reoffending and a serious risk of potential future harm, the Australian community would expect that the applicant’s visa be refused.

27. The Australian community has a particularly low tolerance for the type of domestic violence perpetrated by the applicant and would expect that this would weigh very heavily against the granting of a visa.

28. The Australian community would expect that the Tribunal have very careful regard for the best interests of the children. However, in light of the harm they have suffered from his offending to date and the potential for further significant harm from reoffending, the relatively short period he has had a physical presence in their lives and the fact that M is the primary provider for the children, the Australian community would expect the best interests of the children consideration to be outweighed by the other considerations in this case.

29. For these reasons, the expectations of the Australian community should weigh in favour of refusing the visa.

    Other considerations

    International non-refoulement obligations

30. There was no evidence before the Tribunal of any potential for protection obligations to be owed to the applicant. Accordingly, this consideration is given no weight.

    Impact on family members

31. There is no evidence that M would be adversely impacted by the refusal of the visa. Accordingly, this consideration is given no weight. The impact on the children has been addressed above.

    Impact on victims

32. The Tribunal recognises that M, as a victim of the applicant’s serious and violent criminal offending, is likely to be significantly impacted by a decision to grant the applicant his visa. There was no evidence before the Tribunal that M supported the granting of the applicant’s visa and the Tribunal acknowledges the description by M in her signed statement of the ongoing fear she felt at the hands of the applicant. The Tribunal also acknowledges that, given the serious risk of the applicant reoffending, M could potentially be at risk of further harm should the visa be granted.

33. For these reasons the impact on victims should weigh heavily in favour of refusing the visa.

    Impact on Australian business interests

34. No evidence was presented to the Tribunal on the impact on Australian business interests. Accordingly, this consideration is given no weight.

    Additional Considerations

35. No evidence was presented to the Tribunal of other considerations.

    CONCLUSION

36. The Tribunal is satisfied that the applicant does not pass the character test set out in s 501(6) of the Act. It is therefore is required to exercise the discretion in s 501(1) of the Act in accordance with Direction 65 – Part B. The Tribunal has carefully assessed each of the considerations of Direction 65 as set out above.

37. The Tribunal recognises the serious nature of the applicant’s prior offending and the serious risk the applicant’s release could pose to the Australian community. The Tribunal acknowledges that the best interests of the children would be served by granting the visa although not without risk to the children if the applicant were to reoffend. Having very carefully assessed all of the considerations, the Tribunal is satisfied that the overall balance weighs in favour of a decision to refuse the visa.

    DECISION

38. The Tribunal affirms the decision under review.

83.     I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of The Hon. Matthew Groom, Senior Member

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

Associate

Dated: 7 November 2018

Date(s) of hearing:	31 October 2018
Applicant:	In-Person
Advocate for the Respondent:	David Brown
Solicitors for the Respondent:	Australian Government Solicitor