Tribunal reasons
7 Mr Ali's family and personal history was summarised by the Tribunal at the outset, before being considered in more detail, as follows (at [2] and [3]):
Mr Ali is 59 years of age and arrived in Australia from Fiji in 1988. He has resided here since that date. He has a partner, Munifa Bibi, who he met in Australia in 1989 and with whom he has lived ever since. They are united in the bonds of a religious marriage, although that partnership, which I accept as entirely genuine, has not been formally registered under the Australian Marriage Act 1961 (Cth). The Alis have two adult children and three grandchildren, all of whom are Australian citizens. In addition, Mr Ali has three sisters (two of whom are Australian citizens, and one a citizen of New Zealand) and an Australian citizen brother.
During his time in Australia, Mr Ali initially was in the full-time workforce for a period of some 20 years until he sustained a severe work injury in 2009, since when he has been unable to work and, in more recent years, his partner has become his full-time carer. There is medical evidence before the Tribunal which confirms the degree of Mr Ali's resultant disability.
8 The Tribunal found that Mr Ali had an extensive criminal record. The general nature of that criminal record, and the specific convictions leading to the visa cancellation, were summarised in the Tribunal's reasons as follows (at [4], [9] and [10]):
Mr Ali has made at least 23 appearances before the Courts between April 1993 and April 2017. His convictions include 2 for refusing to undertake a breath analysis; 6 for driving while disqualified or while his license was suspended; 5 for mid-range prescribed content of alcohol (PCA); 1 for resisting police; 3 for assaulting police; 2 for common assault; 2 for assault occasioning actual bodily harm; and 2 for common assault (domestic violence).
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Over the course of his offending, Mr Ali has received sentences involving two Community Service Orders (totalling 300 hours); four periods of periodic detention; and the following four sentences of imprisonment:
20 November 2006 - driving while disqualified from holding a licence - imprisonment for 6 months suspended on entering into bond s12 (6 months);
17 March 2010 - common assault (domestic violence) - imprisonment for 12 months suspended on entering into bond s12 (121 months);
17 March 2010 - common assault - imprisonment for 4 months suspended on entering into bond s12 (4 months); and
13 April 2017 - assault occasioning actual bodily harm (domestic violence) - imprisonment 9 months commencing 13 April 2017 concluding 12 January 2018 - non-parole period with conditions: 4 months commencing 13 April 2017 concluding 12 August 2017 - release subject to supervision.
The April 2017 assault concerns a conviction of Mr Ali for a serious act of domestic violence perpetrated against his wife who was also the victim of the March 2010 assault. In the April 2017 assault Ms Bibi suffered facial injuries and the assault resulted in her calling the police, as is detailed at paragraph 76 below.
9 It is convenient to summarise the balance of the Tribunal's reasons in the form of a narrative to contextualise the specific complaints that Mr Ali makes about them. Certain parts of the reasons from which this narrative is drawn are considered in more detail in the course of addressing the grounds of review.
10 The Tribunal summarised the evidence presented in support of Mr Ali by various members of his family, with a particular focus on exculpatory explanations and qualifications given for the domestic violence incident, which were not found to be particularly credible. In substance, that was because of attempts made to downplay the seriousness of the offending, and in part to suggest an account of events that was different to the findings made on sentence. The Tribunal preferred to rely upon the findings of the magistrate in the Local Court of New South Wales.
11 The Tribunal then turned to Direction 65. The Tribunal considered each of the three primary considerations in [13(2)] in some detail, concluding that:
(1) the primary consideration of protection of the Australian community would be better served if Mr Ali's visa remained cancelled (the precise words used were "being revoked"), noting that the Tribunal was not prepared to assess Mr Ali's risk of reoffending as low, but instead agreed with the delegate that there was a likelihood that his offending would reoccur;
(2) the primary consideration of the best interests of minor children in Australia, being Mr Ali's three young grandchildren to his single-parent daughter, who lived with him and his wife, should be counted as weighing in Mr Ali's favour. However, the Tribunal considered this to be qualified by the fact, to which the sentencing magistrate had given considerable weight, that Mr Ali was prepared to assault and beat his wife in front of one of his young grandchildren and that it could not be in the best interests of any minor child to watch his grandfather assault and beat his grandmother and to see her be injured, flee into the street in fear of her safety and call the police; and
(3) in relation to the primary consideration of the expectations of the Australian community, that expectation was that a man who beats his wife in front of one of his grandchildren, has been before the courts on some seven occasions for assaulting people, has been sentenced to three separate terms of imprisonment, has an appalling driving record which evidences a complete contempt for laws of Australia and blames his wife for her own victimhood, should not be the holder of an Australian visa.
12 The Tribunal considered the five "other" considerations in [14(1)] in some detail, concluding in relation to the three operative considerations that:
(1) as to the strength, nature and duration of ties to Australia, Mr Ali obviously has significant ties to Australia, having:
(a) lived here for just over half of his life;
(b) contributed to the Australian community while he was in gainful employment for some 20 years, where he would have worked longer but for an industrial accident;
(c) been a taxpayer;
(d) with his wife, freehold title to the family home;
(e) extensive family ties and connections through his children, grandchildren, siblings, nephews and nieces, whose support for him was manifest and sincere;
(f) contributed emotionally and financially to the welfare of members of his extended family; and
(g) several family members who express a degree of dependence on him and record a significant impact on their lives as a result of his removal into custody, with him being uniformly described as helpful and caring,
but that, against those factors, Mr Ali did not appear to have accepted that domestic violence was unacceptable to the Australian community and his very poor driving record demonstrated a continuing contempt for and disregard of the laws of Australia - in balancing these competing factors, the Tribunal found that, overall, this consideration counted in favour of Mr Ali's revocation application being granted;
(2) as to the impact on victims, despite the fact that Mr Ali's wife was the victim of his domestic violence assaults, it would be improperly disrespectful if the Tribunal were not to give weight to her continuing support for him and, accordingly, despite misgivings, this consideration did not of itself weigh against his revocation application being granted; and
(3) as to the extent of impediments he would face if removed, there were undoubtedly "some impediments" facing Mr Ali if he were required to return to Fiji that were not necessarily easy to assess, namely:
(a) removal from his extended family network;
(b) the poorer quality of healthcare available in Fiji, his age and his disabilities (with the Tribunal having footnoted Mr Ali's medical reports that indicated a combined total of 50% whole person impairment); and
(c) it being hard to secure employment and therefore a regular income, given his lack of fitness to work;
but, on the other hand:
(d) Mr Ali was in Fiji until he was 29 years of age, was educated and grew up there and it could not be asserted that he would be unfamiliar with the country, its language, social customs, mores or culture; and
(e) on the basis of his indication at the Tribunal hearing that he would sell the family home, he would have considerable financial resources by Fijian standards, even if his wife had indicated an intention to continue living in the family home and was perhaps not aware of his intentions,
and that overall, the impediments he faced in relation to this consideration weighed in favour of his revocation application.
13 The Tribunal's conclusions referred to prior Tribunal decisions on the approach taken to weighing competing considerations under a prior version of Direction 65, and the decision of this Court in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 to the effect that "other", or non-primary, considerations were not necessarily of "lesser weight". The Tribunal then gave the following reasons for affirming the delegate's decision (at [152]-[154]):
In terms of the "primary considerations", in the opinion of the Tribunal, while the best interests of the minor children weigh marginally in favour of setting aside the revocation, the safety of the Australian community and its expectations weigh significantly in favour of sustaining that revocation.
In terms of the "other considerations", on balance, they weigh in Mr Ali's favour, although only marginally so, and only by giving the benefit of the doubt to the testimony of Ms Bibi.
Taken together, the Tribunal comes to a firm conclusion that due to Mr Ali's repeated offences of a violent nature; his disregard for the laws of Australia; his failure to appreciate the gravity of domestic violence and to accept responsibility for his actions; and above all, his failure to have taken the opportunity, after having two custodial sentences imposed on him but suspended, to avoid further acts of violence, he has forfeited any entitlement to the benefits of having a visa to remain in Australia.