ZWCF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2023] AATA 1441

ZWCF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1441 (30 May 2023)

Division:GENERAL DIVISION

File Number:          2023/1553

Re:ZWCF

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis

Senior Member Rania Skaros

Date:30 May 2023

Place:Brisbane

Pursuant to s 43 of the Administrative Appeals Tribunal Act 1975 the Tribunal affirms the decision under review dated 2 March 2023.

..........................[SGD]..........................	.....................[SGD].......................
Senior Member Theodore Tavoularis	Senior Member Rania Skaros

Catchwords

MIGRATION – refusal of a Protection (Class XA) Subclass 866 visa pursuant s 501(1) of the Migration Act 1958(Cth)- where the Applicant does not pass the character test- whether discretion to refuse the visa under s 501(1) of the Migration Act 1958 (Cth) should be exercised- where Applicant has a significant criminal history in Australia –where Australia’s non-refoulement obligations are engaged - indefinite detention as a legal consequence of the Tribunal’s decision considered – consideration of Ministerial Direction No. 99- decision under review affirmed

Legislation

Acts Interpretation Act 1901 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth)

Family Law Act 1975 (Cth)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases

BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878

FYBR v Minister for Home Affairs (2019) 272 FCR 454

PNLB v Minister for Immigration and Border Protection [2018] AATA 162

VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921

WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55

Secondary Materials

Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)

REASONS FOR DECISION

Senior Member Theodore Tavoularis

Senior Member Rania Skaros

30 May 2023

INTRODUCTION

1. This is an application for review of a decision of a delegate of the Minister of Immigration, Citizenship and Multicultural Affairs (the Respondent), dated 2 March 2023, to refuse to grant the Applicant a Protection (Class XA) Subclass 866 visa (‘Protection visa’) pursuant to s 501(1) of the Migration Act 1958 (‘the Act’).

2. ZWCF (the Applicant) is a 43-year-old male, born in October 1979 in Uganda. He travelled to Australia on 5 March 1993 as a dependent of his aunt, Ms DK, who was granted a Class BF Refugee and Humanitarian (Migrant) Woman at Risk (Subclass 204) visa.[1]

   [1] Exhibit 1, G26.

3. The Applicant and his older biological brother Mr VL were cared for by Ms DK following the claimed death of their parents in Uganda. Ms DK went to Kenya in 1981 with the Applicant, the Applicant’s brother Mr VL and her three biological children. Ms DK and the children remained in Kenya until they were granted the Subclass 204 visas. The Applicant was  

   
   

   13 years of age when he arrived in Australia. He has not travelled outside Australia since his initial arrival.

4. The Applicant was first convicted when he was 18 years of age, for offences committed when he was 17 years of age, which were dealt with by the Perth Children’s Court by way of a conditional release order for a period of six months.

5. On 13 October 1998, the Applicant was convicted of sexual penetration of a child under  

   
   

   16 years, for which he was ultimately sentenced to 18 months of imprisonment. As a result of that conviction, the Applicant was sent a warning letter, dated 25 October 2002, in which he was advised by the Department of Immigration and Multicultural and Indigenous Affairs (as the Respondent’s Department was known then) that his Subclass 204 visa had become liable for cancellation under s 501 of the Act. On that occasion, the delegate of the Respondent Minister’s Department (‘the Department’) decided not to cancel the visa, however, the Applicant was warned that further convictions may lead to the cancellation of his Subclass 204 visa.[2]

   [2] Exhibit 1, page 68.

6. On 12 November 2002, the Applicant signed the acknowledgment for receipt of the warning.[3] At the time of this warning, the Applicant had already committed further offences relating to breaches of traffic laws, drink driving, possession of a weapon and drugs, and disorderly conduct.

   [3] Exhibit 1, page 69.

7. After acknowledgement of the first warning, the Applicant went on to commit further offences, including driving unlicensed whilst disqualified, which led to him being sentenced in 2006 to a term of imprisonment (suspended) of six months and one day.  This led to the issuing of a further warning letter, dated 7 November 2007,[4] in which the Applicant was again warned that any further criminal convictions could result in the consideration of the cancellation of his visa or refusal of his application under s 501 of the Act. The Applicant was informed of the consequences of visa cancellation under s 501 of the Act.

   [4] Exhibit 1, page 70.

8. The Applicant continued to commit further offences which were dealt with by way of fines, suspension/disqualification of licence, numerous court orders and varying terms of imprisonment. After serving his most recent term of imprisonment, in 2016, the Applicant was transferred to immigration detention where he has remained to date.

9. On 15 July 2016, the Applicant was notified by the Department that his Subclass 204 visa had been mandatorily cancelled under s 501(3A) of the Act. The Applicant sought revocation of the cancellation of his visa, however, on 4 September 2015 the then Minister personally decided not to revoke the cancellation of the Applicant’s visa. The Applicant applied to the Federal Court of Australia for judicial review of the Minister’s decision and on 6 December 2017, the matter was remitted by consent to the Department for reconsideration.

10. On 3 June 2019, a delegate of the Minister decided under s 501CA(4) of the Act not to revoke the mandatory cancellation of the Applicant’s visa. The Applicant sought review of that decision and on 28 August 2019, this Tribunal (differently constituted) affirmed the delegate’s decision not to revoke the cancellation of the visa.

11. On 21 November 2019, the Applicant applied for a Protection visa. On 3 February 2020, a delegate of the Minister refused to grant the Protection visa on the basis that the Applicant was not a person to whom Australia had protection obligations under s 36(2)(a) or  

    
    

    s 36(2)(aa) of the Act. The Applicant applied to the Tribunal (in the Migration and Refugee Division) for review of that decision. However, the Tribunal (differently constituted) found that it did not have jurisdiction to review the decision as the application was not lodged within the prescribed time. The Applicant applied for judicial review of that decision, however, the Federal Circuit Court of Australia (as it was then known) dismissed that application.

12. On 14 December 2021, the Applicant was renotified of the decision, dated 3 February 2020, to refuse to grant him the Protection visa as the Department found an error in the initial notification. On 15 December 2021, the Applicant applied to the Tribunal, in the Migration and Refugee Division, for review of the re-notified decision to refuse to grant him a Protection visa. On 20 March 2022, the Tribunal (differently constituted) remitted the matter to the Department for reconsideration with a direction that the Applicant satisfied s 36(2)(aa) of the Act.

13. Upon reconsideration, on 8 September 2022, the Applicant was issued with a notice of intention to consider refusal of his Protection visa application under s 501(1) of the Act.[5] The Applicant responded to the notice through his legal representative by way of submission and supporting documents.

    [5] Exhibit 1, G13.

14. On 2 March 2023, a delegate of the Respondent Minister decided, under s 501(1) of the Act, to refuse to grant the Applicant the sought Protection visa.

15. On 13 March 2023, the Applicant applied for review of that decision to this Tribunal, which is the subject of the present proceedings.

    EVIDENCE BEFORE THE TRIBUNAL

16. The documentary evidence before the Tribunal includes:

    ·the Appeal Book (G documents) lodged by the Respondent;[6]

    ·the Applicant’s Statement of Facts Issues and Contentions (the Applicant’s SFIC), together with a bundle of documents;[7]

    ·the Respondent’s Statement of Facts, Issues and Contentions (the Respondent’s SFIC), together with supporting documents;[8]

    ·the Applicant’s response to the Respondent’s SFIC, together with further supporting documents.[9]

    This material was reduced to an agreed Exhibit List,[10] a true and correct copy of which is attached to these Reasons and marked “Annexure A”.

    [6] Exhibit 1.

    [7] Exhibits 2 – 21; 24-30.

    [8] Exhibits 22-23.

    [9] Exhibits 29 – 31.

    [10] Transcript, page 3 lines 8- 47; page 4 lines 1-6.

17. A Microsoft Teams video conference hearing was held on 11 and 12 May 2023 (‘Hearing’). The Applicant appeared by video from Yongah Hill Detention Centre to give evidence. He was represented by Mr Louis Kristopher of Savannah Legal. The Respondent was represented by Mr Alex Chan of Sparke Helmore Lawyers.

18. The Tribunal also received oral evidence from the following witnesses called by the Applicant:

    ·Ms DK, the Applicant’s maternal aunt, whom the Applicant referred to as ‘mum’;

    ·Mr VL, the Applicant’s biological brother;

    ·Ms RK, the Applicant’s non-biological sister;

    ·Ms IM, the Applicant’s non-biological sister;

    LEGISLATIVE FRAMEWORK

19. Section 501(1) of the Act empowers the Minister (or the Tribunal on review) to refuse to grant a visa to a person if the person does not satisfy the Minister that they pass the “character test” as defined in s 501(6) of the Act.

20. Section 501(6)(a) of the Act relevantly provides that a person does not pass the character test if they have a substantial criminal record. Section 501(7)(c) of the Act sets out the circumstances in which a person is taken to have a ‘substantial criminal record’, which relevantly incudes being sentenced to a term of imprisonment of 12 months or more.

21. The issues in the present case are:

    ·whether the Applicant passes the character test; and if not

    ·whether we should exercise the power conferred by s 501(1) of the Act to refuse to grant the Protection visa.

    Does the Applicant pass the character test?

22. The Applicant appropriately concedes that he does not pass the character test on the basis that he has a substantial criminal record.[11] The Applicant’s criminal history check confirms that on 13 October 1998 he was convicted of the offence sexual penetration of a child under 16 for which he was sentenced to 18 months of imprisonment.[12] The Tribunal accordingly finds that the Applicant does not pass the character test.

    [11] Exhibit 10 [15].

    [12] Exhibit 1, page 32.

23. The issue remaining before the Tribunal is whether to exercise the power conferred by   

    
    

    s 501(1) of the Act to refuse to grant the Protection visa.

    Should the visa application be refused under s 501(1) of the Act?

24. In considering whether to exercise this discretion, the Tribunal is bound by s 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) is applicable.

25. For the purposes of deciding whether to refuse the visa paragraph 5.2 of the Direction contains several principles that must inform a decision-maker’s application of the Primary and Other Considerations identified in Part 2 where relevant to the decision. The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:

    1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

    6

    Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the 

    
    

    non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

26. Paragraph 6 of the Direction provides that:

    Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

27. Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account. They are:

    1)protection of the Australian community from criminal or other serious conduct;

    2)whether the conduct engaged in constituted family violence;

    3)the strength, nature and duration of ties to Australia;

    4)the best interests of minor children in Australia; and

    5)expectations of the Australian community.

28. Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:

    a)legal consequence of the decision;

    b)extent of impediments if removed;

    c)impact on victims; and

    d)impact on Australian business interests.

    PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY

29. In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by  

    
    

    non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

    Offending History

30. The Applicant has quite an extensive criminal history. His criminal offending commenced in 1997 and continued (on an almost annual basis) until 2015, when he was 36 years of age, when he was convicted and imprisoned for family violence related offences. After completion of his prison sentence, the Applicant was taken into immigration detention where he has remained since. Over a period of 18 years, the Applicant was convicted of a total of 75 offences which were dealt with by sentencing courts on 41 occasions.

31. Sexual offence: The Applicant was convicted on 10 October 1998 of the offence sexual penetration of a child under 16 years. The Applicant pleaded guilty to the offence and was initially sentenced to two years and six months of imprisonment.[13] This was reduced to 18 months on appeal.[14] In relation to this offence, the following was stated in the Applicant’s Statement of Facts, Issues and Contentions (‘SFIC’):

    ‘On 13 October 1998, the Applicant turned 19 years of age and on the same day the Applicant was found guilty of sexually penetrating a child between under 16 years. This offence was committed on 13 March 1998; the Applicant at that stage was a teenager. At the time of sexual intercourse, the Applicant believed that complainant was 15 years of age but accepts that complainant was younger than him. The Transcript of the Proceedings, where the Applicant said during the video interview that he thought complainant was about 15 years of age.

    The circumstances of the offence are that the Applicant and complainant were at a friend’s apartment. The Applicant and complainant engaged in consensual kissing and cuddling before engaging in sexual intercourse. There is no question in the court decision on whether complainant consented. The Applicant ceased the intercourse when the complainant told him that it was hurting. The Applicant arranged to meet [the complainant] again the next day; however, he was asked by the complainant’s parents to stay away. The Applicant respected the parents’ wishes and stayed away from complainant. Months later, the Applicant was in the car with his friend when his friend offered complainant and another girl a lift to school. Complainant’s mother witnessed this and reported the incident to the police.’[15]

    [13] Exhibit 1, G6.

    [14] Exhibit 1, G7.

    [15] Exhibit 10 [32]-[36].

32. The circumstances of the Applicant’s conviction were set out in the judgment of the Court of Criminal Appeal, Supreme Court of Western Australia, dated 23 February 1999.[16] Relevantly, it stated that the offence occurred on 13 March 1998. Chief Justice Malcom with whom Justices Ipp and Anderson agreed, noted that at the time of the offence the Applicant was 18 years old, while the female victim was 13 years old. It was considered that while age difference may appear ‘relatively small’, there was a ‘considerable disparity in terms of maturity and experience between a 13-year-old female and an 18-year-old male’.[17] The Court  accepted that the Applicant did not force himself upon the victim but noted that consent was not an element of the offence under the relevant provision because the purpose of that provision was to protect persons under the age of 16. It was further noted that the Applicant committed the offence while on a conditional release order.

    [16] Exhibit 1, pages 44–53.

    [17] Exhibit 1, page 49.

33. At the Hearing, the Applicant gave evidence that he was 17 years old at the time of the offence and that the victim’s parents had told him to stay away from their daughter. He said a few days before turning 18 he was in a car with his friend, and they gave the victim and her friend a lift.  This was seen by the victim’s parents who then reported him to the police. Under cross-examination, the Applicant claimed that he was detained two to three days before turning 18 and was charged with the offence after he turned 18.

1. The Tribunal notes that the Applicant’s recollection of the factual circumstances of the offence now appears quite different from what appears in relevant court documents. The transcript of proceedings in the District Court of Western Australia and the judgment of the Court of Criminal Appeal (Supreme Court of WA)[18] indicate that the offence occurred on  

   
   

   13 March 1998 and that the Applicant was 18 years of age at the time of the offence. It was further indicated that on 2 April 1998 the Applicant participated in a video recorded interview during which he admitted to having had sexual intercourse with the complainant whom he thought was 15 years of age. It was recorded that on 3 April 1998, the Applicant was remanded in custody. He remained in custody till 3 September 1998 when he was released on home detention. He was subsequently taken back into custody on 7 October 1998 (due to breach of a condition of his home detention) and he continued to remain in custody at the time he was sentenced on 13 October 1998.

   [18] Exhibit 1, page 36.

2. Having regard to the evidence before it, the Tribunal does not accept the Applicant’s claim that he was 17 years old at the time of the sexual offence. Based on the court documents which the Tribunal considers to be reliable and contemporaneous evidence, the Tribunal finds that the Applicant was 18 years of age at the time of the sexual offence. 

3. Not long after his release from prison in 1999, the Applicant committed further offences including the following for which he has been convicted:

   ·1999: driving without a licence, driving under the influence of alcohol, consume liquor on premises without consent and supply false personal details. These offences were dealt with by way of fines and cancellation/disqualification of driver’s licence;

   ·2000: possess controlled weapon, for which he received a $500 fine;

   ·2001: obstruct railway officer, unlawfully remain on premises, refuse to provide personal details and disorderly conduct. These offences were dealt with by way of fines;

   ·2002: refuse to provide personal details, disorderly conduct (on three occasions), damage/criminal damage, possess prohibited drug and possess weapon. These offences were also dealt with by way of fines;

   ·2003: driving with no licence whilst suspended and driving under the influence. These offences were dealt with by way of fines and licence disqualification;

   ·2004: breach of violence restraining order, breach of bail granted, assault a public officer, damage, resist arrest, unlawfully remain on premises, driving under the influence and driving without a licence whilst suspended. For these offences the Applicant received fines of up to $2000, disqualification of driver licence and was the subject of Conditional Release Orders (CROs);

   ·2005: disorderly obscene language, give false personal details to police, breach of conditional release orders (31/08/2004), possess prohibited drug (on two occasions), driving under the influence, drive without a licence whilst suspended. For these offences the Applicant received fines of up to $3000 as well as licence cancellation and disqualification for life;

   ·2006: breach of conditional release orders, breach of suspended prison sentence, driving with no licence whilst suspended and under the influence, and move on orders. In addition to being subject to a criminal behaviour order and a community service order, for his driving offences, the Applicant also received fines of up to $2000, lifetime disqualification from holding a driver licence and a prison sentence of six months and one day (suspended);

   ·2007: refuse breath test, breach of suspended imprisonment sentence, move on orders and disorderly behaviour in a public place. For these offences the Applicant received fines, driver licence disqualification and a prison sentence of six months and one day (suspended);  

   ·2008: failing to report a traffic accident, failing to stop after a traffic accident, driving without a licence whilst disqualified and failing to give way to oncoming traffic when turning right. For these offences the Applicant received fines of up to $1500. In October 2008, the Applicant was also convicted of driving under the influence and no authority to drive for which he received two terms of imprisonment of 6 months and one day to be served concurrently. He was also convicted of giving false personal details to police;

   ·2010: no authority to drive and providing false name and address for which he received fines;

   ·2011: stealing and possess prohibited drug (cannabis), for which he received fines;

   ·2013: disorderly behaviour in public, failing to comply with request to give police personal details, obstructing public officers, assaulting public officer, disorderly behaviour in a police station, possess a prohibited drug (cannabis), breach of police order, fail to obey order given by an officer. These offences were dealt with by way of fines of up to $2,500;

   ·2014: aggravated assault occasioning actual bodily harm, possess a prohibited drug (Amphetamine), breach of police order and possess a prohibited drug (Methylamphetamine). These offences were dealt with by way of fines.

   ·2015: two counts of breach of protective bail conditions and breach of violence restraining order for which the Applicant received various terms of imprisonment ranging from three months to eight months.

4. Family violence offences for which the Applicant has been convicted: the Applicant’s 2014 conviction for aggravated assault occasioning actual bodily harm related to violence which occurred in a family setting. At the time of that offence, which occurred on 22 January 2014, the Applicant was subject to a restraining order protecting his former partner, Ms AP, and also had breached protective bail conditions.[19] The bail application in respect of the aggravated assault offence was heard in the Supreme Court of Western Australia on 7 March 2014.[20]

   [19] Exhibit 1, page 34.

   [20] Exhibit 1, pages 55 – 67.

5. The judgment in respect of the bail application sets out facts of the offence, to which the Applicant subsequently pleaded guilty. It was indicated that the Applicant entered the first floor bedroom, through the window of the unit at which his former partner resided. When confronted by Ms AP, the Applicant grabbed her hair and pulled her onto the bed. He stood over her and punched her twice in the face with a closed fist. Whilst still on the bed, the Applicant picked up a DVD player, and holding it above his head, threw it at Ms AP, striking her in the side of her left eye. The Applicant then picked up a stereo and threw it at Ms AP striking her in the left side of the face. Ms AP was able to leave the unit and call police. However, the Applicant approached her again, near the letterbox of the unit complex and, while brandishing a metre long wooden stick, struck Ms AP numerous times on the abdomen, legs and forearm.[21] The facts of the incident of 22 January 2014 were also set out in the Statement of Material Facts,[22] and are the subject of further consideration below.

   [21] Exhibit 1, pages 56 – 57.

   [22] Exhibit 22, page 596.

6. Further to the above incident, the Applicant was convicted of two counts of breach of protective bail conditions and breach of a violence restraining order for conduct occurring on 18 March 2015, during which the Applicant had attended Ms AP’s residence (in breach of the violence restraining order) and bail undertaking. The Statement of Material Facts in relation to these convictions indicate that the Applicant had contacted Ms AP multiple times by phone (in breach of bail conditions) and that during the calls, some of which were recorded by Ms AP, the Applicant was aggressive and abusive and made threats towards Ms AP.  When arrested, the Applicant was unable to be interviewed by police due to his level of intoxication. It was also noted that he was abusive towards police.[23] The Applicant was sentenced to various terms of imprisonment ranging from three to eight months in respect of each offence.

   [23] Exhibit 22, pages 582 – 584.

7. Other incidents of family violence alleged to have been committed by the Applicant for which charges were discontinued due to lack of co-operation by Ms AP, included assault of Ms AP, a threat to kill Ms AP, two counts of breach of protective bail conditions in respect of Ms AP and aggravated common assault on Ms AP.[24] The evidence relating to these incidents, including Statements of Material Facts and witness statements, is discussed in detail below under paragraph 8.2 of Direction 99.

   [24] Exhibit 1, page 64; Exhibit 22, pages 585, 605 – 607.

8. In determining the weight to be allocated to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:

   ·the nature and seriousness of the non-citizen’s conduct to date; and

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

   The nature and seriousness of the Applicant’s conduct to date

9. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. The Tribunal has considered each of these factors as follows.

10. Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed ‘very seriously’ by the Australian Government and the Australian community.

11. The Applicant’s crimes and/or conduct in relation to his sexual offence and family violence offences falls squarely within the types of conduct considered to be ‘very serious.’ The Tribunal accordingly finds that the Applicant’s offending conduct, involving having sexual intercourse with a 13-year-old child when he was 18 years of age and family violence offences in 2014 and 2015, as detailed above, to be very serious.

12. Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction refers to the types of crimes that may be considered ‘serious’ by the Australian Government and its community. In this case, the Applicant has not committed any offence that caused a person to become a party to a forced marriage,[25] or being responsible for conduct on which to find that he does not pass an aspect of the character test that may be dependent on this decision-maker’s opinion;[26] or in relation to any crime committed during the Applicant’s time in immigration detention.[27] 

    [25] Paragraph 8.1.1(1)(b)(i) of the Direction.

    [26] Paragraph 8.1.1(1)(b)(iii) of the Direction.

    [27] Paragraph 8.1.1(1)(b)(iv) of the Direction.

13. The Applicant, however, has numerous convictions for offences against officials,[28] including in:

    ·1997 when he was 18 years of age, for assaulting a public officer, resisting arrest and hindering police;[29]

    ·2001 for obstructing a railway officer;[30]

    ·2004 for assaulting a public officer and resisting arrest;[31]

    ·2013 disorderly behaviour in a police station, obstructing a public officer and assaulting a public officer.[32]

    [28] Paragraph 8.1.1(1)(b)(iii) of the Direction.

    [29] Exhibit 1, page 32.

    [30] Ibid.

    [31] Exhibit 1, page 31.

    [32] Exhibit 1, page 30, Exhibit 23 pages 611–614.

14. The Applicant was also convicted on numerous occasions for providing false personal details and refusing to provide personal details to officials.[33]

    [33] Exhibit 1, pages 29–32.

15. The crimes committed by the Applicant against public officials in the performance of their duties falls squarely within the types of the crimes considered by the Australian Government and the Australian community to be serious. The Tribunal accordingly finds the offences committed by the Applicant against public officials to be serious.  

16. Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of the crimes or conduct mentioned in sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1)) of the Direction), to have regard to the sentence(s) imposed by the courts for a crime or crimes. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.[34]

    [34] PNLB v Minister for Immigration and Border Protection [2018] AATA 162 at [22].

17. Excluding the sentences imposed on the Applicant for violent offending against women or children and acts of family violence, as required to sub-paragraph (c), the sentences imposed on the Applicant for offences of which he was convicted include numerous conditional release orders, undertakings, fines ranging from $50 up to $3000 imposed on at least 50 occasions, numerous suspensions/cancellations of driver’s licence, including a lifetime disqualification from ever holding a driver licence. These sentences were imposed for a range of convictions, including driving whilst suspended/disqualified, driving under the influence, refusing breath test, disorderly conduct, breach of violence restraining orders, breach of bail, drug offences, possess weapon, assaulting police and resisting arrest.

18. In addition, the Applicant has also been sentenced to the following terms of imprisonment:

    ·October 1998:[35] 18 months of imprisonment for sexual penetration of a child under 16. The Tribunal considers this offence comes within the ambit of sub-paragraph 8.1.1(1) (a)(i) and is therefore not excluded by sub-paragraph (c);

    ·16 May 2006: the Applicant was sentenced to a six month and one day term of imprisonment (suspended) for breach of a previously imposed suspended sentence and for driving without a driver licence while suspended;

    ·8 May 2007: the Applicant was sentenced to six months and one day for two counts of refusing a breath test;

    ·7 October 2008: the Applicant was sentenced to two terms of six months and one day for driving while suspended/disqualified and for driving under the influence of alcohol, to be served concurrently; and

    ·8 December 2010: the Applicant was sentenced to six months and one day imprisonment for driving without authority whilst disqualified.

    [35] Note to reader: for the protection of the victim the specific date of this sentence has been omitted given the nature of the offending.

19. Bearing in mind the sentencing principle that imprisonment is a last resort, the Tribunal considers that the terms of imprisonment imposed on the Applicant appropriately reflect the seriousness (and gravity) of his compounding offending conduct.

20. Considering the sentences imposed on the Applicant for his many convictions, the Tribunal finds that the Applicant’s offending has indeed been very serious.

21. Sub-paragraph (d) of the Direction compels an inquiry into the frequency of a non-citizen’s offending and/or whether there is any trend of increasing seriousness. As noted above, the Applicant has been convicted of 75 offences that were dealt with at 41 sentencing episodes. It is a criminal history that spans for a period of 18 years. The Applicant’s offending commenced when he was 17 years of age and continued with some regularity until he was 36 years of age.

22. The Applicant’s most serious offence (sexual penetration of a child under 16) occurred in 1998 when he was 18 years of age and his second most serious offence (aggravated assault occasioning bodily harm in a family setting) occurred 16 years later, in 2014. Between 1999 and 2014, the Applicant’s pattern of offending was not necessarily one of increasing seriousness. However, there was an escalation in the seriousness of his offending, which involved family violence, from 2014 until 2015, after which he was imprisoned and subsequently taken into immigration detention.

23. Even though the Applicant’s offending between 1999 and 2014 was not necessarily of increasing seriousness, the repetitive nature of his offending, particularly in relation to driving whilst disqualified and under the influence, disorderly conduct, assault, and breach of court orders, demonstrates his complete disregard for the law over a protracted period.

24. The Tribunal finds that the Applicant’s offending has been frequent and serious, though not necessarily of increasing seriousness until 2014, when he committed family violence offences against his former spouse.

25. Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the cumulative effect of an Applicant’s repeated offending.

26. Despite being imprisoned for his first offence in 1998, not long after his release from custody in 1999, the Applicant commenced a concerning pattern of repeated offending. In the period leading up to his subsequent term of imprisonment in May 2007, which was suspended, the Applicant was convicted of over 35 offences which were dealt with at 20 sentencing episodes. Between June 2007 and October 2008, when he was sentenced to two terms of imprisonment for six months and one day, the Applicant was convicted of a further 10 offences which were dealt with at four sentencing episodes. The Applicant continued to offend and was convicted of further offences until December 2010 when he was again sentenced to six months and one day of imprisonment. Between 2011 and May 2015, when the Applicant was next imprisoned, he had again been convicted of a further 18 offences which were dealt with at 11 sentencing episodes.

27. The Tribunal considers (and finds) the cumulative effect of the Applicant’s offending, which involved 75 convictions and 35 sentencing episodes, would have imposed significant costs to the Australian community, including substantial expenses incurred by the criminal justice system, such as police resources, court proceedings, legal representation, corrections facilities, and parole services. These considerations support a finding that the cumulative effect of the Applicant’s offending has been very serious.

28. Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending. As indicated above, the Applicant arrived in Australia in 1993 and has not since departed. There is no information before us, and the Respondent has not indicated, that the Applicant has provided false or misleading information to the Department, including any failure to disclose prior criminal offences. We consider this factor to be neutral.

29. Sub-paragraph (g): of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).

30. The Applicant in this case was sent two warning letters by the Department before his Subclass 204 visa was eventually cancelled. In the first warning letter, dated 25 October 2002, the Applicant was advised that his Subclass 204 visa had become liable for cancellation under s 501 of the Act. He was informed the Minister decided on that occasion not to cancel the visa. The Applicant was warned that any further criminal convictions would lead to reconsideration of the cancellation of his Subclass 204 visa. The Applicant was further informed that disregard of the warning would weigh heavily against him if his matter was reconsidered.[36]

    [36] Exhibit 1, page 68.

1. On 2 November 2002, the Applicant signed an acknowledgement of receipt of the “warning of possible future liability under s 501”.[37] Following the acknowledgement of the warning, the Applicant went on to commit further offences and was convicted of some 29 offences, after which he was sent the second warning letter.[38] In the second warning letter, dated 7 November 2007, the Applicant was warned that any further criminal convictions, or any other conduct on his behalf that comes within the scope of s 501(6), could result in the consideration of the cancellation of his visa or refusal of his application under s 501. The Applicant was informed that the consequences of visa cancellation under s 501 includes removal from Australia and, in certain cases, bars on re-entering Australia.

   [37] Exhibit 1, page 69.

   [38] Exhibit 1, pages 70-71.

2. The Applicant did not heed the second warning and went on to commit further offences. He was convicted of some 25 further offences until 2015 when he was imprisoned, after which his visa was subsequently cancelled, and he was transferred to immigration detention.

3. The Applicant’s conduct in continuing to commit further offences despite having been warned of the consequences on two separate occasions, supports a finding that the nature of his offending has been very serious.

4. Sub-paragraph (h): of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard, where the offence or conduct was committed in another country, to whether that offence or conduct is classified as an offence in Australia. There is no evidence of any offending by the Applicant in another country. We consider this factor to be neutral. 

5. Having carefully considered all the evidence before it pertaining to the relevant factors in paragraph 8.1.1(1), the Tribunal finds that the Applicant’s conduct in Australia to date has been very serious. These considerations weigh strongly in favour of exercising the power under s 501(1) of the Act to refuse the grant of the Protection visa.

   The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

6. Paragraph 8.1.2(1) provides that in considering the need to protect Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

7. Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the following three factors on a cumulative basis:

   (a)

   the nature of the harm to individuals or the Australian community should the  

   
   

   non-citizen engage in further criminal or other serious conduct;

   (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

   (i)information and evidence on the risk of the non-citizen re-offending; and

   (ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and

   (c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

   Nature of harm should the Applicant engage in further criminal or other serious conduct

8. In relation to the Applicant’s sexual offence, which we have found to be very serious, we consider that if the Applicant were to engage in further sexual offences, particularly in relation to a child, this would result in very serious physical, emotional and psychological harm to the victim and their family. As such, any risk of the Applicant repeating this conduct would be simply unacceptable.

9. In relation to domestic violence offences, including the assault of a partner or former partner, and the breach of violence restraining orders and protective bail conditions, if the Applicant were to engage in this type of serious conduct, it would result in significant physical and psychological harm to the victim. Any repeat of such violent conduct would, in our view, be unacceptable.

10. In relation to the Applicant’s driving offences, including driving unlicensed, driving under the influence and whilst disqualified, we consider that such conduct poses a high risk to the community, as it may lead to catastrophic consequences, such as serious physical injury to passengers and other road users in the event of an accident.

11. Were the Applicant to re-commit his very serious (and serious) violent conduct particularly against a female victim, it is not at all a stretch of the evidence to suggest (and find) that such conduct could very well result in physical, psychological and quite conceivably, catastrophic harm to a victim. There is, for example, no safe or harmless way of throwing a DVD player at a victim’s head. Media campaigns about (1) domestic violence incidents between spouses and (2) ‘one punch’ episodes of violence have repeatedly told us how catastrophic outcomes can result from such conduct.

    Likelihood of engaging in further criminal or other serious conduct

12. The Applicant contends that he is a low risk of re-offending for the following reasons:[39]

    ·that his offences were fuelled by alcohol and that he has since undertaken rehabilitation course for his substance abuse;

    ·that the sexual offence committed by him occurred when he was 18 years old, and that he has not since been charged with any sexual offences or offences against a minor;

    ·he has not demonstrated a trend of increased seriousness in his offending;

    ·he has been recognised for his good conduct in prison and at the immigration detention centre;

    ·he is a 43-year-old adult and, based on statistical analysis, has a very low probability of offending;

    ·he has attended rehabilitation programs and counselling sessions.

    [39] Exhibit 8.

13. In his first statutory declaration,[40] the Applicant provided details of his early life and travel to Australia. He expressed his fear of returning to Uganda. He acknowledged his convictions for ‘several’ offences and said the factors that contributed to his past circumstances included bad choices he made in life and the trauma he has carried with him for years.[41] He attributed the trauma to when his aunt Ms DK told him and his brother (Mr VL) about his parents’ killing. He said he kept the pain inside him and turned to alcohol and drugs because in the African culture it was uncommon to speak to someone about these sorts of things. He stated that the alcohol contributed to his traffic offences. The Applicant also described the circumstances of several incidents which he said contributed to his trauma, including being stabbed in 1999 which required him to remain in hospital and undertake surgery, of being in a car accident in a rural area in 2005 which led to the death of his friend, and subsequently having to walk 24 kilometres to get assistance, and of being hit by a car in 2011 which left him unable to walk for months.

    [40] Exhibit 10.

    [41] Transcript, pages 8-11.

14. The Applicant described the events of the sexual offence and the circumstances that led to his conviction. He said he was young and naïve at the time. The Applicant stated that he has been sober for over 10 years, but still intends to get further treatment for his addiction at a men’s rehabilitation centre (Shalom House). The Applicant said he has dealt with the factors that led to his past circumstances and does not intend to reoffend in future or engage in serious conduct. He said he has been receiving counselling and intends to continue with it if released. He has the support of his family and does not have people in his life who have had a negative impact. He has completed courses and engaged in programs whilst in detention. The Applicant said he has been in regular contact with his children. He has also turned to Christianity for his spiritual support and considers it a protective factor for him. Whilst in detention he gardens which he says gives him a sense of purpose and offsets the guilt and associated with his offending and with his lengthy absence from the lives of his children. He acknowledged his criminal conduct was unacceptable and stated that he has learnt a lot and wants to prove to the community, his children, and his family that he has changed his life for the better. He also wants to dedicate his life to educating African children about his experience and how to avoid life’s traps and not commit offences.

15. In his second statutory declaration,[42] the Applicant stated that he has reflected on his past behaviour and the pain, suffering, hardship, and embarrassment he has caused his victims, their family members, and his family members. He accepted he made mistakes in his past life, has rectified them, and has made changes whilst in prison and immigration detention over the last nine years. He has undertaken courses that have helped him understand the impact of his conduct on his victims, his children, his family, and the community. He apologised, expressed remorse for his conduct and stated he could have behaved differently so as not to cause his victims suffering. He stated that for the sake of his children, his family, and the community he will not repeat the past. He wants to be a part of his children’s future but will not have any relationship or contact with Ms AP. He stated that he should have been there for his children that he has failed to fulfill his parental duties and otherwise regrets his actions. He acknowledged having been warned by the Department on two occasions and that he ignored both warnings. He stated that his detention since 2015 has been the best thing that happened to him because it allowed him to complete courses which have assisted him to deal with his alcohol and drug additions, domestic violence, and past trauma. He wants to be a member of the community and help others who are going through challenging times in their lives.   

    [42] Exhibit 24.

16. In his respective statutory declarations, the Applicant suggests that he is a low risk of  

    
    

    re-offending because he has been in detention for a long time, has now dealt with his trauma, has been receiving counselling and intends to continue with counselling if released. He also suggests that support from his family, being with his children and his faith all provide protective factors which will assist him in not reoffending upon a return to the community.

17. In addition to the above, evidence was also provided to indicate that employment, which may also be a protective factor, would be offered to the Applicant if he is released into the community.[43]

    [43] Exhibit 1, G18; Exhibit 15.  

18. We have had regard to all the evidence before us, including the oral evidence received at the hearing from the Applicant and his family members, when considering the likelihood of him engaging in further criminal or other serious conduct.

19. The Applicant in his respective statutory declarations and at the hearing repeatedly apologised, expressed remorse, and sought forgiveness for the offences he committed and the pain he caused to his victims and the community. The Tribunal acknowledges that sincere apologies and genuine expressions of remorse may demonstrate that a person has taken full responsibility for their actions and may be a lower risk of repeating the offending conduct.

20. However, we have some misgivings about whether the Applicant is genuinely remorseful for his offending conduct, given the nature of his evidence at the hearing, which, in our view, appeared to deflect blame onto others, minimise his conduct and otherwise demonstrated a failure to appreciate the full extent of the harm caused.

21. In relation to the very serious sexual offence, the Applicant gave evidence at the Hearing that he was aged 17 at the time of the offence but was charged after he had turned 18. In cross-examination he said he was taken into custody two or three days before turning 18 and was only charged after turning 18.[44] As discussed in detail above, we have found that the Applicant was 18 at the time of the offence. He was taken into custody in April 1998 and interviewed about the incident. He was released on home detention in September 1998 but returned to custody on 7 October 1998 (six days before his 19^th birthday) due a breach of his home detention condition. He was convicted of the offence on 13 October 1998, which would have been his 19^th birthday. The Applicant’s evidence suggests a belief, on his part, that the delay in him being charged for the offence was deliberate so that he could be tried as an adult. The Applicant’s recollection of the events, timing of the charges and his deflection of some measure of blame onto the police casts serious doubt over his claim of remorse and the sincerity of his apologies.

    [44] Transcript, page 30 lines 20-30.

22. In any case, we accept that since 1998 the Applicant has not been convicted of any other sexual offences, including offences against a minor, and on this basis we consider that there is a low risk of him committing a sexual offence against a minor.

23. In relation to his domestic violence offences, the Applicant gave evidence at the Hearing that he and Ms AP were in a relationship for seven years and had two children together. He said he was sorry for what happened to her, but also said it was a toxic relationship fuelled by drugs and alcohol. He said they were both on drugs for much of the time they were together. When asked by his representative why he continued to go to Ms AP’s home despite being under orders not to do so, the Applicant said he and Ms AP then had a child together and she called him to ask why he was not helping with the care of the child. He said he told Ms AP that they cannot be friends because of the violence restraining order but that she would nevertheless come to his house and be angry with him. He said he told her the relationship cannot go on and that she left swearing text messages, so he called her and told her “Eff you and eff the police.”[45]

    [45] Transcript, pages 14 lines 1-13.

24. The Applicant’s evidence in chief suggests that it was Ms AP who had been contacting the Applicant and pursuing him, however, other (more reliable) evidence before us indicates that it was the Applicant who pursued Ms AP and perpetrated the violence against her. Under cross-examination, the Applicant said his relationship with Ms AP ended and that he moved out at the end of 2011 or 2012.[46] He was referred to the judgement dated 7 March 2014 in relation to his bail application in the Supreme Court of WA, which detailed the alleged facts of the incident on 22 January 2014 when he went through a bedroom window and assaulted Ms AP. The Tribunal notes that the Applicant was subsequently convicted of some of the charges arising out of that incident. The Applicant said he recalls the incident and that he was living with Ms AP at the time. When it was put to him that the incident was in 2014, the Applicant then said it was an ‘on’ and ‘off’ relationship and that he was trying to get back into the house after she had locked him out.[47] When asked if he accepts that he pulled Ms AP’s hair and punched her, the Applicant said it was ‘not the same way’ and ‘not exactly what happened’.[48] He said they ‘had an argument but not a fist punch’.[49] He said he ‘is not going to punch a woman’. He said he jumped through the window and things were thrown but ‘did not punch her’. When asked if he threw a DVD player at Ms AP, he avoided answering the question and said ‘some things are true and some things are not true’.[50] When pressed again about whether he threw the DVD, he said ‘yes, but not on her face’.[51] When asked about throwing a portable stereo at Ms AP’s head, he said yes, but queried whether, if he did all these things, ‘somebody would still be alive’. When asked about picking up the stick and hitting Ms AP, the Applicant said he ‘does not recall.’[52]

    [46] Transcript, pages 44 lines 1-7.

    [47] Transcript, page 59 lines 39-47.

    [48] Transcript, page 47 lines 10-18.

    [49] Transcript, page 47 lines 20-22.

    [50] Transcript, page 47 lines 29-37.

    [51] Transcript, page 47 lines 41-43.

    [52] Transcript, page 48 lines 12-18.

25. In relation to the same incident, the Applicant was referred to the statement of material facts[53] which indicated that when he was shown photographs of Ms AP’s injuries, he told police that she must have fallen over. When asked if he accepts that the injuries sustained by Ms AP were not the result of her falling over, the Applicant said, ‘he cannot recollect’, ‘his memory is not clear’ and ‘he knows they had a fight’.[54] The Applicant was also referred to the report[55] by Psychologist Mary-Anne Martin regarding his criminal offending in 2014, which records that the Applicant  had told Ms Martin  that Ms AP had made stuff up and injured herself with the stick. After indicating he could not recall the details, the Applicant said ‘sometimes it used to happen like that’.[56] When asked if he agreed that Ms AP’s injuries were self-inflicted, the Applicant maintained that he could not recall because there were too many incidents.

    [53] Exhibit 23, page 596.

    [54] Transcript, page 50 lines 23-44.

    [55] Exhibit 23, page 175 [25].

    [56] Transcript, page 51 lines 10-19.

26. Under cross-examination, the Applicant was also referred to another incident which occurred on 20 September 2014 when he attended Ms AP’s home and told her to “fuck up bitch” and punched her in the face.[57] The Applicant again maintained he could not recall. When informed that the statement of facts indicates severe injury to Ms AP’s jaw for which she had to undergo surgery, the Applicant recalled that when Ms AP had tried to grab him so that he does not go out, he tried to break free and swung his hand backwards and that it was an accident and not intentional. When it was put to him that it was more likely intentional given the extent of injuries to her jaw, the Applicant denied this and maintained it was an accident.[58]

    [57] Exhibit 23, page 585.

    [58] Transcript, page 52 lines 15 – 30.

27. The above examples provide a snapshot of the nature of the Applicant’s obfuscatory evidence at the hearing. When confronted with recorded incidents of violence committed against Ms AP, the Applicant’s default position was either he could not recall the events, or that they did not happen in the way described in the police and court records, or that it was unintentional. The evidence also suggests that the Applicant still blames Ms AP for her injuries. We consider that genuine remorse involves accountability and comprehension of the harm caused. In our view, the Applicant’s evidence demonstrates a failure to take responsibility for his conduct and shows a lack of any interest in understanding the consequences of his actions and the harm he has inflicted. This casts doubt in our minds about genuineness of the Applicant’s remorse and the effectiveness of the counselling he has received and the courses he has undertaken whilst in detention.

28. We accept that the Applicant’s and Ms AP’s relationship was a volatile one, significantly impacted by drugs and alcohol. We also acknowledge that Ms AP had a history of drug use.[59] Ms AP has also been recorded to have changed her evidence regarding the Applicant’s conduct towards her, including in relation to seven charges which were subsequently withdrawn, though this appears to be more out of fear that she would lose custody of her children to the Department of Child Protection than wanting to assist the Applicant.[60] We also accept that Ms AP had maintained contact with the Applicant and permitted him to come into the home, however, information recorded by the Department of Child Protection suggests that this was because if she did not do so the Applicant would “rip the door off and smash the windows.”[61] We consider that, notwithstanding Ms AP’s shortcomings or permissive conduct, the violence inflicted upon her by the Applicant was unjustifiable and inexcusable.

    [59] Exhibit 23, pages 204-232.

    [60] Exhibit 23, pages 148 – 153, 203, 211.

    [61] Exhibit 23, page 145.

1. The Applicant’s criminal history reveals numerous convictions for assault, including of public officials, and being the subject of 13 restraining orders in respect of four females and one male. When asked at the hearing about his first assault charge in 1997 for assaulting a police officer and hindering police, the Applicant said he was ‘young and stupid, was 17 years old, drunk, and acting stupid’.[62] While his age and being under the influence of alcohol may have explained his first assault offence, we are not satisfied that this also validly accounts for the many assault charges of which the Applicant has been convicted, including those committed well into his adulthood. The Applicant was 33 when he was last convicted of assaulting a public officer, and we have some doubts, given his numerous convictions in his later adult years, about whether his age now militates in favour of any lower risk of reoffending than when he was 33 years old. 

   [62] Transcript, page 68 lines 1-7.

2. In relation to his driving offences, including driving unlicensed, under the influence and whilst disqualified, the Applicant accepted at the Hearing that he had committed many offences. When asked under cross-examination why he kept driving despite never having held a valid driver licence, the Applicant said it was due to stupidity. When asked if he accepted that drink driving was dangerous, the Applicant vacuously said at the time he was not thinking clearly. The Tribunal notes that the Applicant, despite receiving multiple fines, including a fine of $3000 for driving under the influence, and being disqualified for life from ever holding a licence in 2005, he went on to commit further driving offences. For his driving offences the Applicant received multiple prison sentences in May 2006, May 2007, October 2008, and December 2010. The Applicant was also warned by the Department in November 2007 that any further convictions could lead to the cancellation of his visa. However, neither the prison sentences nor the warning did anything to curb the Applicant’s offending conduct.

3. The Applicant gave evidence at the Hearing that if released into the community he would catch public transport until he regains (by court order) his driver licence. However, we are mindful that the Applicant has very long history of disobeying traffic laws and prior penalties have been largely ineffective to deter his conduct.

4. Throughout the Hearing the Applicant gave evidence that his offending was due to drugs and alcohol which he says he used to deal with his trauma. He claimed that his trauma stemmed from (1) finding out about the deaths of his parents; (2) that Ms DK was not his real mother;(3) being the victim of a stabbing; and (4) being involved in two car accidents, one of which caused the death of his friend. We are prepared to accept that these factors may have contributed to the Applicant’s offending. There are some IHMS[63] records dating from 2021[64] where there is reference to an assessment made by the Ministry of Health Justice Services relating to an assessment of the Applicant’s mental health. However, be that as it may, there is not before us any contemporaneous clinical assessment or evaluation conducted by a qualified professional who has assessed the Applicant’s mental health, substance abuse history, trauma history and any treatment progress.

   [63] International Health and Medical Services.

   [64] Exhibit 1, pages 149-399.

5. We accept that the Applicant has undertaken numerous rehabilitation programmes whilst in detention, including those related to substance abuse, dealing with trauma and grief, managing anxiety and anger, understanding domestic violence, as well as parenting programmes.[65] We also acknowledge that the Applicant attended trauma counselling sessions provided by the Association of Services to Torture and Trauma Survivors (ASeTTS).[66] We also accept that the Applicant has engaged with International Health and Medical Services (IHMS) services and participated in cognitive behaviour therapy on a weekly basis and attended one on one counselling for post-traumatic stress and relationship counselling.[67] We observe, however, that certificates for the  programmes completed and the letters from the various counsellors, merely refer to the Applicant’s participation and attendance. In the absence of contemporaneous treatment records or any current clinical assessment, we are unable to determine with any level of reliability or certainty whether the rehabilitation programmes, therapy and counselling sessions have been effective, and the progress made (if any) by the Applicant in addressing his trauma, substance abuse together with the development of coping skills and prevention strategies.

   [65] Exhibits 11 and 12.

   [66] Exhibit 16.

   [67] Exhibit 1, pages149-399; Exhibit 20.

6. We have had regard to the IHMS records of the Applicant’s counselling sessions whilst he has been in detention and acknowledge that they indicate that the Applicant’s risk of offending and self-harm was low. However, we agree with the Respondent’s submission that these records refer to a person’s risk level in detention, which is a controlled environment. We are not satisfied that the assessment of the Applicant by the IHMS clinicians that the Applicant, represents a low recidivist risk if returned to the community.

7. There is limited probative clinical evidence before us of any convincing rehabilitation achieved by the Applicant noting he has not spent any time in the community since his last offence.

8. We have had regard to the supporting statements[68] from family, friends, and members of the community.[69] We have also considered the oral evidence given by the Applicant’s family members, including his aunt (Ms DK), his biological brother (Mr VL) and his non-biological sisters (Ms RK and Ms IM).

   [68] Exhibit 1, pages 103, 105–109; Exhibits 3-9.

   [69] Exhibits 2, pages 18-20, 24-26. 30.

9. In her oral evidence, Ms DK indicated that she is a qualified drug and alcohol counsellor and that she was willing to support the Applicant by talking to him and encouraging him to get counselling. However, she also gave evidence that she works three days a week and has numerous health conditions.[70] Ms DK said she was aware of the Applicant’s criminal convictions because sometimes she used to go to court with him. In relation to his drug and alcohol issues, she indicated that she encouraged him to stop but that made their relationship worse.[71]

   [70] Transcript, pages 105–106.

   [71] Transcript, page 105 lines 43-47; page 106 lines 1-5.

10. In his oral evidence, Mr VL indicated that the Applicant would live with him if he were released into the community, that he is also willing to offer the Applicant employment in his car restoration business and would otherwise mentor the Applicant. In relation to the Applicant’s convictions, Mr VL indicated that he was aware of the sexual offence but was not sure of the number of other convictions and believed that it may have been up to four other offences. In relation to alcohol and drug use, Mr VL indicated that he was not sure of the types of drugs the Applicant took and thought it was cannabis.[72]

    [72] Transcript, page 106 lines 6-8.

11. In their oral evidence, the Applicant’s non-biological sisters indicated they were close to the Applicant and used to see him regularly. However, neither of them appeared to have knowledge of the full extent of his criminal history or his drug and alcohol issues. They both indicated their willingness to assist the Applicant if he was released into the community.

12. We accept that Ms DK and the Applicant’s siblings are willing to provide the Applicant with assistance, including with accommodation, emotional and financial support if he is released into the community. However, we are also mindful that the Applicant’s family members have other family and employment obligations and, in the case of Ms DK, who is 67 years of age, medical conditions. We also observe that the Applicant has had the support of his family, and was in full-time employment in the past, but these circumstances did little to stop him from re-offending. We are unable to be satisfied on the evidence before us that the family and community support, or employment offered to the Applicant, would make it unlikely for him to re-offend or otherwise satisfactorily act as protective factors against him doing so.

13. It was submitted that the Applicant intends to obtain further treatment for addiction at Shalom House,[73] a men’s rehabilitation centre, if he is released into the community. Evidence was also provided from Palmerston Alcohol and Drug services indicating that the Applicant has been placed on a waiting list for a counsellor.[74] While we acknowledge the Applicant’s willingness to undertake a rehabilitation program, and engage in drug and alcohol counselling, we reiterate our concern regarding the absence of a current clinical assessment to determine whether these particular treatments are, having regard to the Applicant’s particular needs, the most effective and appropriate interventions to address the underlying causes of his trauma, or provide the necessary tools to overcome his drug and alcohol issues.   

    [73] Exhibit 10 [45]; Exhibit 15.

    [74] Exhibit 1, page 104.

14. We have also considered the Applicant’s claim that his Christian faith is a protective factor, but again, we have some reservations about that. This is because the Applicant, in the past, had demonstrated a commitment to his Christian faith by refusing to convert to Islam, despite being pressured by the family of his former partner (Ms SP), the mother of his third child (Child NP). The Applicant was prepared to end his relationship with Ms SP rather than convert to Islam from Christianity. However, this commitment to his faith had little (if any) influence on curbing his offending conduct and we are, at this time, unable to be satisfied that his faith would in future deter him from reoffending if released into the community.

15. The Tribunal has also had regard to the letters of support attesting to the Applicant’s good conduct in prison[75] and in detention including the recent letter inviting the Applicant to a barbeque.[76] While these letters indicate that the Applicant’s conduct in detention has generally been good, we note that this is a controlled environment and the Applicant’s claimed rehabilitation has not been tested in the community.  

    [75]  Exhibit 19.

    [76] Exhibit 26.

16. The Respondent has referred to several client incidents reports[77] relating to events which occurred at the immigration detention centre in January 2021 and March 2021 suggesting that the Applicant, whilst in detention, had been involved in the consumption of alcohol (home brew) and threatening detention centre staff. At the Hearing, the Applicant denied being involved with making or drinking home brew, stating that there was no facility at the detention centre to cook. We have carefully considered records of the incidents and observe that they refer to several detainees, including the Applicant, being involved. The reports, however, do not specify which detainee was responsible for what conduct. The evidence, as recorded, does not establish that the Applicant had in fact consumed the suspected home brew or that he was the detainee who had threatened the detention centre staff. 

    [77] Exhibit 1, pages 72-74.

17. In relation to the Applicant’s children being a protective factor, we note that the Applicant has five children from three different relationships, two of whom were taken by the Department of Child Protection, due to concerns about their safety. Having children has not prevented the Applicant from offending in the past. We acknowledge that the Applicant has re-established a relationship with his two youngest sons (Child JK and Child IP) and communicates with them regularly and would like be part of their lives. However, there is limited evidence that the desire to be with his children would provide a strong protective factor for the Applicant upon release into the community.

18. In respect of the Applicant’s age being a factor that would make him unlikely to reoffend, we have had regard to the submission in the Applicant’s SFIC referring to the statistical analysis relied upon in GQVS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 178,[78] which suggests the rate of criminal offending decreases with age. We agree with the Respondent’s submission that the opinion provided in that matter was in relation to a particular applicant with a particular criminal history. We consider the raw statistical data on criminal offending relied upon in that case to be of limited probative value as it does not provide the relevant insight or guidance pertaining to specifically, the criminal offending circumstances of the present case. The Applicant in this case has an 18-year criminal history (from age of 17 until he was 36) which involved 75 convictions, and we are not satisfied that the raw statistical data relied upon in GQVS is applicable to the different circumstances of this case.

    [78] Exhibit 10 [72]–[75].

19. Having carefully considered all the above, we consider that (other than sexual offences against a child which we have found are unlikely to re-occur) there remains a moderate risk that the Applicant will reoffend if released into the community. Having regard to the serious physical and psychological harm that would result from the Applicant reoffending in a similar manner, we consider the risk to be unacceptable.

    Conclusion: Primary Consideration 1

20. Overall, we are of the view (and we find) that this Primary Consideration 1 confers a very heavy level of weight in favour of this Tribunal exercising the power under s 501(1) of the Act to refuse the Protection visa sought by this Applicant.

    PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

21. Paragraph 8.2 of the Direction provides: 

    1The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

    2This consideration is relevant in circumstances where:

    (a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or

    (b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

    3In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:

    (a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;

    (b)the cumulative effect of repeated acts of family violence;

    (c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:

    (i)     the extent to which the person accepts responsibility for their family violence related conduct;

    (ii)    the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);

    (iii)   efforts to address factors which contributed to their conduct; and

    (d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.

22. The material before us, suggests that the Applicant has committed domestic violence against:

    ·his adoptive mother (Ms DK);[79] and

    ·his de facto partner (Ms AP).

    We will now discuss the Applicant’s domestically violent conduct perpetrated against (in particular) Ms AP.

    [79] Exhibit 23, page 934. Note to reader: while the Applicant’s conduct towards Ms DK was, to an extent, ventilated at the Hearing, we will, for present purposes, exclusively focus on the Applicant’s domestically violent conduct towards Ms AP.

23. There is a contest between the parties about whether the Applicant’s unlawful conduct committed in a domestic paradigm constitutes family violence. In the reply filed on behalf of the Applicant, it is suggested that certain charges were ultimately discontinued against the Applicant should not be taken into account. The submission is put thus:

    ‘…those 7 charges were dismissed for “want of prosecution” because the complainant withdrew his [sic] cooperation by her [sic] including materially altering her account of the incidents in questions. The notion by the respondent that the Tribunal should make same finding regarding applicant’s deflections of responsibility is clearly prejudicial to the applicant and it should not be entertained. The Applicant’s attempts to explain some of his action in the past to give context to circumstances of the offending is not to minimize his actions.’[80]

    [80] Exhibit 29, page 11 [47].

24. To our minds, this contention is both misconceived and incorrect. This is because paragraph 8.2(2) of the Direction facilitates consideration of family violence conduct if that conduct is the subject of a conviction (8.2(2)(a)) or there is information or evidence from independent and authoritative sources indicating an Applicant’s involvement in family violence conduct (8.2(2)(b)).

25. On the facts now before the Tribunal, both components of paragraph 8.2(2) of the Direction are engaged. First, in terms of a conviction(s) for family violence conduct, there is the Applicant’s conduct that occurred in January 2014. That conduct is described in the material in these terms:

    ‘The accused entered into the first floor bedroom via a window where he was confronted by the victim.

    The accused grabbed the victim by her hair and pulled her onto the bed.

    The accused stood over the victim and punched her twice in the face with a closed fist of his right hand.

    While still on the bed the accused picked up a DVD player and holding it above his head threw it at the victims [sic] head striking her in the side of her left eye.

    The accused then picked up a silver portable stereo and threw it at the victims [sic] head striking her on the left side of the face.

    The victim kicked out at the accused and was able to eventually leave the Unit and call Police.

    However the victim was approached by the accused again near the letterbox at the front of the Unit complex. The accused was brandishing an approximately one metre long wooden stick.

    The accused struck the victim numerous times on the abdomen, legs and forearm.

    As a result of the assault the victim sustained injuries to the effect of bruising under her left eye and on her legs, whip marks and redness to her abdomen and scratches and redness to her forearm.’[81]

    [81] Exhibit 23, page 596.

26. For this conduct, the Applicant was sentenced at a Western Australian Magistrates Court in May 2014 on one count of ‘Aggravated assault occasioning bodily harm’. He was fined the sum of $500. The terms of paragraph 8.2(2)(a) of the Direction are thus satisfied.

27. Second, the material contains reference to the commission of domestically violent behaviour by this Applicant that was not the subject of either a charge or conviction. The resulting question is whether any of that conduct falls within the auspices of paragraph 8.2(2)(b) of the Direction. The relevant instances of such conduct occurred In January 2014, where the Applicant is recorded to have behaved in the following manner towards his female victim:

    ‘As a result of another matter (verbal argument with the victim) the accused armed himself with a large kitchen knife.

    The accused grabbed the victim by the throat with his left hand and pushed her backward over the kitchen counter.

    The accused has then held the point of the knife to the victims face and neck, touching her skin.

    While doing so the accused stated "I am ready this time. Let's do this. I am going to kill you bitch!’

    While being held in this position by the accused the victim felt fearful for her life and truly believed that the accused was going to slit her throat.

    Police later attended and the accused was arrested and conveyed to [Location of police station redacted].

    The accused participated in an electronic record of interview and denied the offence.’[82]

    [82] Exhibit 23, page 597.

1. We further agree that the provisions of s 197C(3) of the Act and paragraph 9.1.1(2) of the Direction are engaged because (1) a protection finding has been made with respect to the Applicant’s country of nationality; and (2) the Applicant has made a valid application for a protection visa (before this Tribunal, differently constituted) that has been finally determined. We are of the view that s 197C(3) applies to the instant facts regardless of whether or not the subject visa has been refused. In these circumstances, an officer of the Respondent’s Department is not authorised to remove the Applicant from Australia unless the Applicant requests that he be removed to his country of nationality. No such request has been made by the Applicant.

2. Given the protection finding made on 20 March 2022,[201] were this Tribunal to not exercise its discretion to refuse the Protection visa, the Applicant would not be removed to Uganda. The consequence for the Applicant would be that he would remain in detention with no fixed end date. This, in turn, leads us to a specific legal consequence of the cumulative effect of the Applicant not succeeding in securing the protection visa he seeks, that being: indefinite detention.

   [201] Exhibit 1, 417-439.

   Indefinite detention in the context of this case

3. It is necessary for this Tribunal to take into account any legal consequence arising from its decision relating to the Protection visa now sought by the Applicant which has been previously refused by the Respondent’s delegate. One specific consequence of such an outcome could quite likely involve, as we said above, the Applicant’s prolonged or indefinite detention. We regard this issue as a legal consequence of this Tribunal’s decision in relation to this proceeding being adverse to the Applicant.[202] Section 189 of the Act provides that an adverse outcome for the Applicant in the instant proceeding would result in the Applicant’s continued detention until his removal. Therefore, it can be accepted that a “refusal to grant” outcome in this application could very well extend the Applicant’s time in an immigration detention facility.

   [202] VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921 at [16].

4. Were this Tribunal not to grant the Applicant a protection visa, the likely reality will be that he will remain in immigration detention until another event ends that detention. In terms of such an ‘event’, there are three possible alternatives to either the Applicant’s refoulement or his ongoing detention. They are:

   ·removal to another country; or

   ·the Minister exercising their personal discretion under s 195A of the Act to grant the Applicant, ‘another visa’; or

   ·the Minister exercising their personal discretion under s 197AB of the Act to make a residence determination enabling the Applicant to reside at a specified place in the community, subject to appropriate conditions.

5. While it may be found that (1) a possible outcome for the Applicant from this application is that he will be detained for a period with no chronologically fixed end point and (2) this prospect of prolonged or indefinite detention may weigh in favour of the Applicant, the weight attributable to this Other Consideration (a). This is impacted by a couple of factors. First, as stated in paragraph 9.1.1 (3) of the Direction, the Applicant is precluded from again applying for a Protection visa while he is in the migration zone by virtue of the bar appearing in s 48A of the Act. This difficulty may be obviated if the Respondent Minister makes a determination, pursuant to s 48B of the Act, that the bar in s 48A does not apply to the Applicant.

6. Second, given that a protection finding has been made, the Applicant would not be liable for removal unless and until any one of the following occur:

   ·the decision grounding the protection finding is quashed or set aside; or

   ·

   pursuant to s 197D of the Act, the Minister forms the view that the Applicant is no longer a person in respect of whom any protection finding for the purposes of

   
   

   s 197C(3) of the Act applies; or

   ·the Applicant asks the Minister, in writing, to be removed.

7. Third, as outlined earlier, protection findings have already been made in relation to this Applicant. Therefore, were this Tribunal to affirm the decision refusing the grant of a protection visa, the Applicant would most likely remain in detention until:

   ·one of the events in s 197C(3)(c) occurs; or

   ·the Minister exercises their personal powers to grant another visa to the Applicant; or

   ·the Minister makes a resident determination in respect of the Applicant.

8. If any of the immediately preceding three dot-pointed items occur, then the Applicant’s time in detention will end. If none of those items occur then it must be accepted that a legal consequence of this Tribunal refusing the grant of a protection visa, would be that the Applicant will be detained in immigration detention without a fixed endpoint.[203] We are of the view (and we find) that this Other Consideration (a)[204] confers a heavy level of weight in favour of this Tribunal not exercising the power to refuse to grant the Protection visa sought by this Applicant.[205]

   [203] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 [123]-[124].

   [204] With specific reference to the indefinite detention issue.

   [205] Pursuant to s 501(1) of the Act.

9. We are also mindful of her Honour Justice Jagot’s comments in BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[206] to this effect:

   ‘The contemplation of this possibility, that a Minister might exercise these powers in the future, is not irrational and does not lack good faith. It is within ordinary human experience that, over time, Ministers change and Ministers change their minds. At the time the Minister made this decision, 7 March 2022, it was a notorious fact, of which judicial notice may be taken, that there would be a Federal election within a few months. Even without that fact, the Minister must be taken to have known that relevant circumstances may change, Ministers may change and Ministers may change their minds. These were all rational possibilities at the time the Minister made the decision.’[207]

   [206] [2022] FCA 878.

   [207] BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878 at [42].

   Other Consideration (b): Extent of impediments if removed

10. Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    (a)the non-citizen’s age and health;

    (b)whether there are any substantial language or cultural barriers; and

    (c)any social, medical and/or economic support available to that non-citizen in that country.

11. We agree with and endorse the position of the Respondent which is stated thus:

    ‘Because this consideration is confined to impediments of one’s removal to their home country, given there is no scope of the applicant being removed to Uganda, this consideration neither weighs for or against visa refusal.’[208]

    [Internal referencing omitted]

    [208] Exhibit 22, page 20 [66].

    Other Consideration (c): Impact on victims

12. Paragraph 9.3(1) states that decision-makers must consider the impact of a s 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.

13. The Respondent has not called evidence about any impact the Applicant’s continued presence in Australia would have on his victims. Without such evidence, it would be irresponsible of us to enter the realm of conjecture and speculate about the extent of any impact this Applicant’s offending has had, or would have, on any of its victims.

14. We are mindful of the evidence from Ms AP who was the victim of the Applicant’s domestically violent conduct wherein she speaks favourably about the Applicant remaining in Australia. Such a statement could possibly attract discussion pursuant to the authority of PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. There, Kerr J made the following comments:

    ‘[57] I am satisfied that nothing in CGX20 as has settled the construction to be given to cl 14.4 [the precursor to paragraph 9.3(1) of Direction 99] requires, contrary to that guidance, a victim to be heard only as to such impacts as weigh in favour of the cancellation of a visa. I reject that DKN20 requires it.

    [58] It can be accepted that usually such impacts will weigh in favour of the cancellation of an offender’s visa.

    [59] Usually, but not always.’[209]

    [209] PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235, paras [57]-[59]. Note: we note His Honour referred to “cancellation of a visa” at [57] of the quoted judgement. For the purposes of these Reasons, we have assumed His Honour’s observations apply equally in visa refusal matters pursuant to s 501(1) of the Act.

15. Ms AP’s statement is dated 4 May 2016 and appears in the material. this is what she has to say:

    ‘[The Applicant] has been part of my life for 10 years we have been in a de facto relationship for this long we also have two children together. When I was a drug addict with no where to live as I had just lost my kids to the Department of child protection. I guess it’s safe to say it was the worst time in my life. [The Applicant] was always there to make sure I had a roof over my head that wasn’t in any danger, that I had eaten and showered that I had fresh clean clothes he always made sure I went to my appointments he kept my mind right.

    He helped me get a place of my own and put furniture for my house. He was there for me and my child’s every need emotionally and financially. I love him very much without [the Applicant] I become very lost and self-destructive…

    [The Applicant] under the influence would have to be the most respectful, kindest man I’ve ever met he loves his children more than anything in the world…

    When [the Applicant] was not around, I felt like a huge part of me is missing…’[210]

    [210] Exhibit 25.

16. Two things can be said about this statement from the victim. First, it should be noted that it is now over seven years old and cannot be safely found to be contemporaneous with the instant determination. Second, it does, to our minds, verge on the extraordinary for a person who has been subjected to, and forced to endure, truly horrendous acts of domestic violence at the hands of this Applicant, to be providing such a statement. Importantly, this statement was prepared after the Ms AP had been subjected to the Applicant’s above-described very serious domestically violent conduct.

17. We therefore approach the allocation of any weight to this Other Consideration (c) with a significant measure of caution. We find that it militates only very moderately in favour of this Tribunal not exercising the power pursuant to s 501(1) of the Act to refuse to grant the visa sought by the Applicant.

    Other Consideration (d): Impact on Australian business interests

18. The Applicant’s position is that refusal of the visa would impact his brother’s lawn mowing, cleaning and car restoration businesses. While the Applicant’s brother says ‘[the Applicant] has experience in repairing cars, operating machinery and welding pipes’,[211] there is little evidence that he has thus far played any measurable role in any of the brother’s businesses. The Applicant’s contention about his removal impacting an Australian business is based on a future contingency that has no reference point in the past. In other words, the Applicant cannot demonstrate whatever role or contribution he has thus far played or made in these businesses operated by the brother. The essence of the Applicant’s position is both prospective and speculative. He is propounding what he says he will do in future in terms of a role in the brother’s businesses, as opposed to saying ‘this is what I have done and the role I have played in my brother’s businesses thus far, if you remove me, those businesses will be materially affected.’ Put simply, the evidence goes nowhere near demonstrating anything like this.

    [211] Exhibit 9.

19. This prospective or intended role for the Applicant can be seen in the language of the brother’s statement which is put thus:

    “His expertise is highly valuable for my business as I repair and sell second-hand cars. Additionally, [the Applicant] will be in charge of landscaping and cleaning services that I offer to my customers.

    Future Plans

    I plan on offering full-time employment to [the Applicant] to help him generate his income and look after his children. I am struggling to run the business alone as I work full-time. His skills and knowledge with machines will play a massive role in expanding the business. Finally, the business will be an opportunity for us to grow together as a family while generating income to support our children.” [212]

    [Our emphasis]

    [212] Ibid.

20. We do not doubt the brother’s sincerity in proposing a role for the Applicant in one or more of his businesses. But that is a completely different thing from the Applicant being able to demonstrate that his unavailability to work in those businesses will materially impact ‘Australian business interests’.

21. Three further things can be said about any weight allocable to this Other Consideration (d): (1) the Applicant’s brother holds down full-time employment in a major car dealership in Perth and has done so for over two decades. It is obvious that this is his primary source of income. These car restoration, landscaping and cleaning businesses are secondary endeavours to the brother’s primary source of income; (2) none of these secondary businesses run by the brother constitute ‘the delivery of a major project, or delivery of an important service in Australia’; and (3) if the worst came to the worst, and the Applicant was removed and unavailable to the brother, it would be open to the brother to employ a person with similar skills to the Applicant to play the intended roles in these secondary businesses.

22. Ultimately, we agree with the Respondent’s contention in terms of weight allocable to this Other Consideration (d):

    ‘Given the minimal information on why the applicant’s brother would necessarily need the applicant and not any other employee or contractor to “expand the business”, the Minister contends that the impact on Australian business interests neither weighs for or against visa refusal.’[213]

    [213] Exhibit 22 [21]-[29].

    Findings: Other Considerations

23. The allocation of weight to the Other Considerations in the present matter can be summarised as follows:

    (a)Other Consideration (a): Legal consequence of decision under s 501 or s 501CA: this other consideration weighs heavily in favour of this Tribunal not exercising the power under s 501(1) of the Act to refuse to grant the Protection visa sought by this Applicant;

    (b)Other Consideration (b): extent of impediments if removed: is of neutral weight;

    (c)Other Consideration (c): impact on victims: is of moderate weight in favour of this Tribunal not exercising the power under s 501(1) of the Act to refuse to grant the Protection visa sought by this Applicant;

    (d)Other Consideration (d): the impact on Australian business interests: is of neutral weight.

    CONCLUSION

24. Section 501(1) of the Act provides that this Tribunal may refuse to grant the Applicant’s requested visa. As explained previously in these Reasons, given the Applicant’s criminal offending history it is not contested that he does not pass the character test. Having regard to the Direction and to the totality of the evidence before us, we are of the view that the Tribunal should, exercise the power conferred by s 501(1) of the Act to refuse to grant the Applicant’s requested visa. We make this finding on the basis that the Applicant does not pass the character test.

25. In reaching this conclusion, we have had regard to the considerations referred to in the Direction. With regard to the weight we have allocated to each of these Primary and Other Considerations, we find as follows:

    (a)Primary Consideration 1: confers a very heavy, level of weight in favour of this Tribunal exercising the power conferred by s 501(1) of the Act to refuse to grant the visa;

    (b)Primary Consideration 2: confers a very heavy, level of weight in favour of this Tribunal exercising the power conferred by s 501(1) of the Act to refuse to grant the visa;

    (c)Primary Consideration 3: confers a moderate, level of weight in favour of this Tribunal not exercising the power conferred by s 501(1) of the Act to refuse to grant the visa;

    (d)Primary Consideration 4: confers a moderate, level of weight in favour of this Tribunal not exercising the power conferred by s 501(1) of the Act to refuse to grant the visa;

    (e)Primary Consideration 5: confers a very heavy, level of weight in favour of this Tribunal exercising the power conferred by s 501(1) of the Act to refuse to grant the visa.

26. We have outlined the weight attributable to each of the Other Considerations. We are of the view (and we find) that the combined weights we have allocated to Primary Considerations 1, 2 and 5, are sufficient to outweigh the combined weights we have allocated to Primary Considerations 3 and 4 and Other Considerations (a) and (c).

27. A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal exercising the power conferred by s 501(1) of the Act to refuse to grant the visa sought by the Applicant.

    DECISION

28. Pursuant to s 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review dated 2 March 2023.

I certify that the preceding 248 (two hundred and forty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis and Senior Member Rania Skaros.

.............[SGD]...........

Associate

Dated: 30 May 2023

Dates of Hearing:

11 and 12 May 2023

Applicant:

Mr Louis Kristopher (Legal Practitioner)

Savannah Legal Pty Ltd

Solicitor for the Respondent:

Mr Alex Chan (Senior Associate)

Sparke Helmore Lawyers

ANNEXURE A

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
1	Section 501 G-Documents (bookmarked G1 – G26, paged 1-520)	Various	27 March 2023
2	Letter of support from Ms Jodie Bell	Undated	18 April 2023
3	(Unsigned) (Signed) Statutory declaration by Child Bo (Applicant’s niece)	Undated	18 April 2023
4	(Signed) Statutory declaration by Ms DK (Applicant’s Aunt/ adoptive mother)	16 April 2023	18 April 2023
5	(Unsigned) (Signed) Statutory declaration by Ms IM (Applicant’s non-biological/ adoptive sister)	Undated	18 April 2023
6	(Signed) Statutory declaration by Ms RK (Applicant’s non-biological/ adoptive sister)	17 April 2023	18 April 2023
7	(Signed) First Statutory declaration by Mr VL (Applicant’s biological brother)	16 April 2023	18 April 2023
8	(Unsigned) (Signed) Statutory declaration by the Applicant	Undated	18 April 2023
9	(Signed) Second Statutory declaration by Mr VL (Applicant’s biological brother)	12 July 2019	18 April 2023
10	Applicant’s Statement of Facts, Issues and Contentions	17 April 2023	18 April 2023
11	Bundle of course completion certificates from the Applicant	Various	18 April 2023
12	Certificate of ‘Toddler Time’ course completion	Various	18 April 2023
13	Personal injury claim by Ms DK	4 November 2014	18 April 2023
14	ABN details	11 July 2019	18 April 2023
15	Offer of employment – For the Applicant Mr VL (Applicant’s biological brother)	11 July 2019	18 April 2023
16	Letter of support from Ms Bonnie Beazley (Trauma Counsellor)	12 March 2019	18 April 2023
17	Information about Shalom House	Undated	18 April 2023
18	Letter of support from Australian Border Force	17 July 2017	18 April 2023
19	Letter of support from Mr Brett Butler (Chaplain)	29 October 2015	18 April 2023
20	Letter from Ms Linnie Harris (IHMS Counsellor)	23 June 2017	18 April 2023
21	Bundle of reports	Various	18 April 2023
22	Respondent’s Statement of Facts, Issues and Contentions	24 April 2023	24 April 2023
23	Respondent’s Tender Bundle (paged 1- 1130)	Various	24 April 2023
24	(Unsigned)(Signed) Statutory Declaration from the Applicant	Undated	5 May 2023
25	(Hand-written) (Typed) Statement from Ms AP (ex-partner)	4 May 2016	5 May 2023
26	Letter of support from Serco	Undated	5 May 2023
27	Report by NSW Bureau of Crime, Statistics and Research	September 2014	5 May 2023
28	WA Court transcript	6 August 2009	5 May 2023
29	Applicant’s reply to the Respondent’s Statement of Facts Issues and Contentions	4 May 2023	5 May 2023
30	(Signed) Statutory Declaration from Ms Tracey Lorraine Buswill	1 May 2023	5 May 2023
31	(Signed) Statutory Declaration from Mr Sean Robson (Tendered into evidence on 12 May 2023)	3 May 2023	9 May 2023
32	List of relevant children	--	--