Ground 1 - Application of Direction 79
48 Ground 1 is as follows:
The Tribunal erred in law insofar as the Tribunal proceeded upon the basis of "[t]he principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed", and insofar as the Tribunal failed to give proper, genuine, and realistic consideration to the merits of the case and made its decision in accordance with a rule or policy without regard to the merits of the particular case.
49 Mr Ali advances an argument in three stages. First, he submits that the Tribunal erred in law by not giving proper, genuine, and realistic consideration to the merits of his case because it made its decision in accordance with the policy embodied in paragraphs 13.1.1(1)(b) and (d) of Direction 79 which required that the Tribunal view crimes of a violent nature against women or children very seriously, regardless of the sentence imposed. Secondly, Mr Ali submits that to the extent that paragraphs 13.1.1(1)(b) and (d) of Direction 79 required the Tribunal to proceed upon the basis that crimes of a violent nature against women or children are to viewed very seriously, regardless of the sentence imposed, it is invalid, and the Tribunal erred in law in following it. Thirdly, and relatedly, Mr Ali submits that the Tribunal further erred by following the decision in Stowers in which Yates J observed (at [45]):
[Direction 79] required the Tribunal to view the 2016 offences, and the 2011 offence against the respondent's former partner, very seriously. I can only think that the words "very seriously" were chosen advisedly in drafting Direction 79. These words are not some flourish of the pen. There was no discretion reposed in the Tribunal to view the offences in some lesser or different light. But this is what the Tribunal did.
and (at [55]) that:
…In substance, the Tribunal supplanted para 13.1.1(1)(b) by reaching and applying its own evaluation of the seriousness of the respondent's past offending in so far as it concerned crimes of a violent nature towards women and children.
In this context, Mr Ali submits that the decision in Stowers is plainly wrong and should not be followed, noting that the validity of Direction 79 appears not to have been argued before Yates J.
50 Finally, Mr Ali submits that the Tribunal's error was material in that a correct understanding and application of the law could have resulted in a different decision.
51 The Minister contends that Direction 79 is not ultra vires s 499 of the Act and in any event, the alleged error (which the Minister denies) was not material because Mr Ali's offending was in any event objectively very serious and that the Tribunal, following a detailed examination of the material before it, had no doubt that Mr Ali's offending against Ms Deng was very serious.
52 For the reasons that follow, ground 1 must fail.
53 The starting point is to read the Tribunal's reasons fairly and as a whole. A fair reading of the Tribunal's reasons reveals that the Tribunal did give proper, genuine, and realistic consideration to the merits of the case. The Tribunal did not make its decision by inflexibly applying a rule or policy without regard to the merits of Mr Ali's case.
54 A focal point of the Tribunal's review of the delegate's decision was to carefully evaluate the nature and seriousness of Mr Ali's criminal offending. The evaluation of the nature and seriousness of Mr Ali's offending was central to the Tribunal's consideration of the factors in paragraph 13.1.1(1)(a), (b) and (d) of Direction 79. The Tribunal moved sequentially to consider each of these factors. In the circumstances of Mr Ali's application, where there was no dispute that the relevant offences were both violent and also committed against a woman there was necessarily an overlap in the Tribunal's consideration of the factors set out in paragraph 13.1.1(1)(a) and (b).
55 The Tribunal began by noting that Mr Ali's criminal history was one of "relative brevity" and that he was not "a serial offender". Further, that Mr Ali's offending derived from "a singular - albeit very serious - episode of very violent offending towards his former spouse": T[5]. The singular episode to which the Tribunal referred occurred on 5 April 2015. It was preceded by two other events which the Tribunal also took into account under the rubric of "other conduct" in paragraph 13.1.1(1) in Direction 79.
56 First, on 7 January 2015, the Queensland Magistrate's Court made a protection order against Mr Ali following an incident between Mr Ali and Ms Deng, described in the application for the protection order as follows:
[Ms Deng] has picked up the child in her right arm and attempted to walk to the door to leave for the doctors [sic] appointment.
[Mr Ali] has gotten angry and grabbed [Ms Deng] by the arm quite hard and started to slap [Ms Deng] on the left and right side of the face. [Ms Deng] has attempted to defend herself and the child and held her left hand out, [Mr Ali] has grabbed [Ms Deng] and put both of his hands around [Ms Deng]'s throat squeezing hard.
[Ms Deng] has felt very scared for her life and called police on 000. [Ms Deng] was having trouble speaking to the 000 operator as her throat hurt from [Mr Ali] squeezing her neck.
57 Secondly, on 17 February 2015, Mr Ali breached the protection order in an incident that was witnessed by three others. In June 2019, following a guilty plea he was convicted of breaching the protection order based on the following police facts:
[Name A] who lives in the vicinity stated he was in his kitchen of his address when he heard yelling coming from the street. Witness [A] states he observed a male and female in the middle of the street. He states he observed the male grabbed the female's ponytail. He states the female was attempting to run away from the male, he states the male grabbed it with such force that the female whole top of her body was falling backwards. Witness [A] states the female was holding her baby. The actions of the male had placed the baby in a precarious position that the witness believed that the female might drop the baby. The witness has yelled at his father to call the police. Witness [A] upon exiting his dwelling has observed a pregnant lady attempting to intervene with this fight. Police have since located this witness.
Witness [Name B] was the pregnant lady previously described by [A]. She states she was walking along Mountain Street proceeding towards Logan Road listening to headphones when she heard a female screaming. [B] states the scream sounded like the female was fearful. Upon turning around she states she observed the male wrestling a female in the middle of the street. She states the male was attempting to wrestle the phone off the female. She states she observed the male have a hand on the female's arm and was attempting to aggressively push the female. She states she heard the female yell "Help me, help me, get him away". She believes the male was disregarding the baby [sic] safety so she attempted to intervene.
Another neighbour [Name C] who resides in the vicinity to disturbance states he was watching TV in his house on Mountain Street when he has heard a female screaming. He states has run outside the front of the house to investigate further and has observed a male struggling with the female holding a baby in the middle of the street directly out in front of his house. He states he heard a female screaming "Help me", "Get off me" numerous times. He states he saw the male reefing at the female's hands attempting to grab a phone she was holding. Witness [C] has attempted intervene and yelled towards the male, "Let go". Witness [C] states he was fearful for female and baby so he physically restrained the male so the male released his grip on the female. He states the female was distraught.
Other witnesses have taken custody of the child. The female has decamped from the scene. Upon the male calming down witnesses have returned the child to the male. The male some time has later left prior to a police arrival.
Police located this female from the incident and identified her as the aggrieved in the matter. The male was identified as the respondent in this matter. Police contacted the aggrieved who did not wish to formally provide a statement to police.
58 Thirdly, on 5 April 2015, shortly after breaching the protection order in February 2015, Mr Ali committed four violent offences against Ms Deng for which he received the prison sentence which triggered the cancellation of his visa. The offences of which Mr Ali was convicted included three counts of common assault (domestic violence) and one count of grievous bodily harm (domestic violence) under ss 320, 335 and 564(3A) of the Criminal Code Act 1899 (Qld).
59 The count of grievous bodily harm arose from Mr Ali punching Ms Deng on each side of her face and breaking her jaw. The Tribunal noted that the sentencing judge's remarks revealed that Ms Deng was physically smaller than Mr Ali. The Tribunal further noted that Mr Ali had, for some hours, delayed taking Ms Deng for medical assistance and the only explanation for that was that he did not want the authorities to learn how she had been injured. Ms Deng required surgery to insert plates and screws into her jaw. After quoting extensively from the sentencing judge's remarks and adding its own emphasis to parts of those remarks, in the context of its consideration of factor 13.1.1(1)(a), the Tribunal said (at T[38] - [41]):
[38] It is plain from [the sentencing judge]'s sentencing remarks that the offences committed by the Applicant upon his former wife are of a serious and violent nature. This sub-paragraph (a) stipulates that "without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously". I am hard-pressed to avoid a finding that the circumstances of the Applicant's offending upon his former wife were indeed violent, regardless of whether the charges for which he was convicted ranged from common assault (in a domestic paradigm) to grievous bodily harm (also in a domestic paradigm). There can be no argument with the finding that his dreadful and cowardly offending upon a victim much smaller in physical stature than him, must surely be found to be very serious. This finding is consistent with the stipulation in this subparagraph (a) that such offending conduct is to be viewed "very seriously".
[39] It is difficult to find any directly causative external factor compelling the Applicant to have conducted himself in such a dangerous manner. At the time of the offending he was not intoxicated, nor was he under the influence of illicit substances. His propensity to offend appears to derive from a lack of self-control when he felt challenged in a domestic context. In the course of the sentencing remarks, there is a reference to [the sentencing judge] having been taken to comparative cases as a guide for the imposition of the extent of any head custodial term. Interestingly, one of the comparative cases involved provocative behaviour exhibited by a victim towards an offender. As noted by [the sentencing judge], no such provocative behaviour emanated towards this Applicant from his victim. Indeed, it appears the offending resulted from displeasure experienced by the Applicant about whether his victim had or had not done an amount of laundry:
"It has been submitted that a head sentence of two and a-half years would be appropriate in all of the circumstances of this matter. I've been referred to two cases in that regard. I don't intend to go through those cases in any detail. But in my view, this matter calls for a sentence, to properly reflect all relevant considerations, of three years as a head sentence. The matter of Clarke, I note, resulted in a sentence of two and a-half years but it was after a plea of guilty. That is a significant consideration on sentence and there was some very provocative behaviour - not using that in the legal sense - on the part of the complainant in that matter that was absent here. Here you simply lost your temper, it would seem, over something as ridiculous as laundry not having been done. The matter of RAP, of course, involved a much less serious charge. One of assault occasioning bodily harm. Notwithstanding that a two year term of imprisonment was imposed after the entry of a timely plea of guilty."
[40] Thus, there cannot be said to be any externally imposed factor impacting upon the Applicant's capacity to control himself during a moment of anger or frustration. His only explanation for his astonishing and very serious reaction, which saw him devolve into conduct amounting to very serious offending, is only to be found in his failure to control his own temper and propensity to lash out at a domestic spouse who, he felt, was frustrating him in the way he wanted things to be. It must have surely been clear to him that the relationship was in its "death throes" and that it was otherwise on the wane. He refused to accept his victim's right to assert herself and her own status as his co-spouse in that scenario. If the laundry had not been done, the Applicant should have left well enough alone. Yet he failed to do so and his resulting conduct caused [the sentencing judge] to have little or no hesitation in imposing a head custodial term of just under three years.
[41] I am of the view that an application of this sub-paragraph (a) strongly militates in favour of a finding that the Applicant's violent conduct has been very serious.
60 Having concluded that Mr Ali's violent conduct was "very serious" in the context of considering paragraph 13.1.1(1)(a) of Direction 79, the Tribunal then moved to consider factor 13.1.1(1)(b). It is the Tribunal's consideration of paragraph 13.1.1(b) that is the subject of challenge in ground 1. A fundamental difficulty with Mr Ali's argument is that he seeks to contort particular statements made by the Tribunal by divorcing those statements from both the immediate context in which they were made in addressing paragraph 13.1.1(1)(b) and also from the related context, namely the Tribunal's earlier consideration of paragraph 13.1.1(1)(a). In order to illustrate why that is so, it is useful to have regard to the Tribunal's reasoning in respect of paragraph 13.1.1(1)(b) at T[42] - [46] (which followed immediately on paragraph 13.1.1(1)(a) which is extracted above):
[42] Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed.
[43] The exercise of applying this sub-paragraph (b) to the instant factual matrix is, to my mind, rendered significantly more straightforward due to the words "regardless of the sentence imposed" appearing within it. It is clear that the draftsperson of Direction 79 intended for this Direction to readily facilitate a finding that violent offending towards women (or children) must be found to be "very serious". In the instant case, the Applicant's very violent conduct against his former wife resulting in necessary reconstructive surgical intervention is plain from the nature of those appalling injuries. As noted by [the sentencing judge], "The effect of this assault upon her has been substantial. She has suffered emotional, social, psychological and physical harm and adverse impacts as a consequence of your behaviour…" Little more need be said about the nature of the Applicant's offending militating very strongly in favour of a finding than that his offending against the female person comprising his ex-wife has been very serious.
[44] While the wording of sub-paragraph (b) refers to "regardless of the sentence imposed", it is, to my mind, significant that as a first-time offender, [the sentencing judge] saw fit to impose an almost three year head custodial term on this Applicant. Therefore, while the sentence may not be of essential relevance to this sub-paragraph (b) (for the purpose of ascertaining allocable weight to it), the sentence imposed by [the sentencing judge] is nevertheless supportive of a finding that the Applicant's conduct towards his ex-wife was, indeed, very serious.
[45] There is authority for the proposition that the wording of this sub-paragraph (b) allows no discretion in the Tribunal to view the Applicant's violent offences in anything other than a "very serious" light:
"45. That direction required the Tribunal to view the 2016 offences, and the 2011 offence against the respondent's former partner, very seriously. I can only think that the words "very seriously" were chosen advisedly in drafting Direction 79. These words are not some flourish of the pen. There was no discretion reposed in the Tribunal to view the offences in some lesser or different light. But this is what the Tribunal did."
[46] I consequently find that an application of this sub-paragraph (b) to the circumstances of the Applicant's conduct towards his former spouse on 5 April 2015 most certainly merits the allocation of a heavy level of weight in favour of a finding that his offending has been of a very serious nature.
61 Mr Ali seizes upon the opening sentences of T[43] and [46] to contend that the Tribunal has applied paragraph 13.1.1(1)(b) and (d) without giving proper, genuine and realistic consideration to the merits of Mr Ali's case. In doing so, Mr Ali seeks to divorce those statements from the immediate context in which they were made in addressing paragraph 13.1.1(1)(b) and also from the necessarily related context that precedes these statements, namely the Tribunal's consideration of paragraph 13.1.1(1)(a).
62 On a plain and fair reading of the whole relevant section, the Tribunal has both engaged in its own genuine and realistic assessment of the nature and seriousness of Mr Ali's offending, and in effect, cross-checked its own assessment with the characterisation of the offending in paragraphs 13.1.1(1)(a) and (b). Had the Tribunal acted in the way Mr Ali contends, much of what is set out in its reasons would be entirely superfluous. An obvious example to illustrate that point is that if the Tribunal regarded itself as bound to regard Mr Ali's offending against Ms Deng "very seriously, regardless of the sentence imposed", it was not necessary for the Tribunal to engage in the detailed consideration of paragraph 13.1.1(1)(a) and the length of the head sentence that Mr Ali received as a first offender in the way that it did. A fair reading of the whole of the Tribunal's reasons demonstrates that the Tribunal both engaged in a realistic and genuine way with the merits of Mr Ali's case and had appropriate regard to the terms of Direction 79, in accordance with s 499(2A) of the Act. Mr Ali's contention that the ministerial direction led the Tribunal to relieve itself of the burden of carrying out what it evidently saw as the significantly less straightforward task of determining the seriousness of Mr Ali's offending for itself (i.e. on the merits) cannot be maintained. The Tribunal had already done just that in considering factor 13.1.1(1)(a), and did so again in considering paragraph 13.1.1(b).
63 For this reason alone, ground 1 must fail. For completeness, I will address the remaining two parts of the Mr Ali's argument.
64 The second aspect of Mr Ali's argument is that Direction 79 is ultra vires s 499 of the Act on the basis that, in Mr Ali's contention, it requires the Tribunal to perform its review function under s 500 of the Act and s 43 of the Administrative Appeals Tribunal Act 1973 (Cth) in accordance with a rule or a policy embodied in Direction 79 and not by giving proper, genuine and realistic consideration to the merits of the case. For the reasons which follow I reject Mr Ali's contention that those parts of Direction 79 which he seeks to impugn are ultra vires.
65 The Minister is authorised to give written directions to a body having functions or powers under the Act about the performance of those functions or the exercise of those powers: s 499 of the Act. The explanatory memorandum to the Migration Legislation Amendment Bill 1989 stated in relation to s 66DD (now s 499) that (at [209]):
This provision gives the Minister power to issue general policy directions to persons performing functions or exercising powers under the Act. This provision also ensures the Minister retains responsibility for general policy direction.
66 The Minister submits, and I accept, that there can be no real dispute that in requiring decision makers to consider that all domestic violence offending as "very serious" regardless of the sentence imposed, the Minister is addressing a significant social problem that is properly the focus of a general policy direction by government. Paragraph 13.1.1(1)(b) of Direction 79 is within the intended purpose of directions given under s 499 of the Act.
67 The assessment of whether there is another reason for revocation inherently involves a broad evaluation by the decision-maker. There is nothing unusual in this context for the Minister to identify behaviour that he or she considers, as a matter of policy, should be viewed "very seriously" as part of the broad evaluative task posed for the decision-maker. In Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at 194 [54] the plurality (French CJ, Bell, Keane and Gordon JJ) said in respect of policy guidelines (footnotes omitted):
Policy guidelines like the priorities policy promote values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike. In particular, policies or guidelines may help to promote consistency in "high volume decision-making", such as the determination of applications for Subclass 202 visas. Thus in Drake v Minister for Immigration and Ethnic Affairs [No 2] , Brennan J, as President of the Administrative Appeals Tribunal, said that "[n]ot only is it lawful for the Minister to form a guiding policy; its promulgation is desirable" because the adoption of a guiding policy serves, among other things, to assure the integrity of administrative decision-making by "diminishing the importance of individual predilection" and "the inconsistencies which might otherwise appear in a series of decisions"…
68 Fundamentally, and fatally to Mr Ali's submissions on this ground, the direction about domestic violence offending does not dictate the outcome of the ultimate decision to be made with respect to his visa under section 501CA(4) of the Act. As Stewart J explained in FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454 in the context of the government's "deeming" of community expectations in clause 11.3 of Direction 65 (the predecessor of Direction 79 which was largely in identical terms) (at 475 [90]):
However, it is not to be expected that the Government of the day would seek, via the device of "community expectations" or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.
69 In Re Drake and the Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 644 - 646:
…Where a discretionary power guided by an administrative policy is exposed to review by this Tribunal, however, the powers with which this Tribunal is vested by s 43 of the Administrative Appeals Tribunal Act 1975 are wide enough to permit the sterilization or amendment of policy in its application to the cases which come here. Although the Tribunal ought not, indeed cannot, deprive itself of its freedom to give no weight to a Minister's policy in a particular case, there are substantial reasons which favour only cautious and sparing departures from Ministerial policy, particularly if parliament has in fact scrutinized and approved that policy.
If the Tribunal, in reviewing a decision made in pursuit of a lawful administrative policy, consciously departed from that policy, it would nullify not only the policy made by the repository of the discretionary power, but also any mechanism of surveillance which the relevant statute permits or provides. To depart from ministerial policy thus denies to parliament its ability to supervise the content of the policy guiding the discretion which parliament created. On some occasions, reasons may be shown to warrant departure from ministerial policy; for example, where the intervention of new circumstances has clearly made a policy statement obsolete.
But in general, it would be manifestly imprudent for the Tribunal to override a ministerial policy and to adopt a general administrative policy of its own… If consistency in decision-making is sought, as it ought to be, the standards and values which a Minister expresses in a statement of lawful policy can be a constant reference point for each of the presidential members of the Tribunal in exercising the discretion in particular cases. Ministerial policy can be an aid to consistency among Tribunal decisions, and to consistency between the decisions of the Tribunal and those of the Minister. Decisions made under a statutory power and reviewed by the Tribunal are but a proportion of the decisions made under that power, and it would be a regrettable anomaly if the decisions which were not reviewed revealed different standards and values from those made on review…To apply the policy does not determine the decision...
See also, NEAT Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277 at 286 - 287 [17] (Gleeson CJ); Seiffert v Prisoners Review Board [2011] WASCA 148 at [123] - [125] (Martin CJ with whom McLure P and Murphy JA generally agreed at [202] and [219] respectively); R v Secretary of State for the Home Department; Ex parte Venables [1998] AC 407 at 496 - 497 (Lord Browne-Wilkinson).
70 Critically, while the Tribunal is required by the Direction 79 to treat offending of the type identified as "very serious" it remains for the Tribunal to allocate weight in respect of such offending relative to all other relevant considerations when it comes to assess whether there is another reason for revocation of the visa cancellation under s 501CA(4)(b)(ii) of the Act. Those aspects of Direction 79 which Mr Ali seeks to impugn do not impermissibly restrict the decision-maker's task of evaluating and weighing all relevant factors in order to determine as a matter of discretion whether there is another reason to revoke the cancelation of the visa. That may be illustrated by reference to the language of paragraph 13.1.1(1). The chapeau to paragraph 13.1.1(1) provides that:
In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision makers must have regard to factors including….
71 The expression of the chapeau to paragraph 13.1.1(1) is not so rigid as to exclude consideration of the merits of the particular case. The factors listed in paragraph 13.1.1(1) do not comprise an exhaustive list. The breadth of the language in the chapeau permits the decision-maker to arrive at a conclusion in respect of whether or not there is another reason to revoke a visa cancellation based on the particular circumstances of an individual application when viewed holistically after taking into account the policy factors set out in paragraph 13.1.1(1)(a) to (i) so far as those factors are relevant to the individual circumstances.
72 Clause 13.1.1(1)(b) of Direction 79 does not unduly fetter the decision-maker's discretion. The decision-maker's task under s 501CA(4)(b)(ii) of the Act is inherently evaluative and it is proper for the Minister to identify offences that he or she considers, as a matter of policy, are to be objectively regarded very seriously regardless of sentence.
73 The third aspect of Mr Ali's argument on ground 1 is his attack on the Tribunal's reliance on the decision in Stowers. The review in Stowers was concerned with a decision of the Tribunal in which, notwithstanding the requirement under s 499(2A) of the Act that it follow Direction 79 when exercising its discretion to determine whether to revoke a cancellation decision, the Tribunal did not follow the direction given in paragraph 13.1.1(1)(b). Instead, the Tribunal qualified the objective seriousness of the non-citizen's offences in so far as they concerned violence against women and children by attributing to them lesser significance than permitted by paragraph 13.1.1(1)(b): Stowers at [48]. The Tribunal did this by, for example, relying on psychologists' reports that were in evidence. Justice Yates observed (at [48]) that he did,
not doubt that the psychologists' reports contained information that was relevant to the exercise of the Tribunal's discretion. But the psychologists could not comment on, and did not purport to comment on, the degree of objective seriousness of the respondent's offending.
74 The Tribunal's error was compounded by then considering the actual sentences imposed on the non-citizen as another means of revisiting the objective seriousness of the offences. To do so was contrary to the express terms of paragraph 13.1.1(1)(b) which required a decision-maker to view crimes of a violent nature against women and children very seriously, regardless of the sentence imposed: Stowers at [50]. It is in that context that the observations of Yates J, extracted at [49] above, were made. I do not accept Mr Ali's submission that the Tribunal erred in relying on Stowers in the way that it did. Read fairly, the Tribunal did no more than to accord the level of objective seriousness to Mr Ali's offences as it was required to in complying with Direction 79 in accordance with s 499(2A) of the Act. I have already noted that in doing so, the Tribunal was not deflected from giving proper, genuine and realistic consideration to Mr Ali's case.
75 Finally, and again for completeness, if I am wrong in respect of the error of law that is the subject of ground 1, then I am not satisfied that the error was material. Based upon the analysis at [55] to [62] above, the Tribunal was correct to conclude that Mr Ali's offending against Ms Deng was very serious based on its detailed assessment of the materials. The Tribunal had regard to Mr Ali's explanations for his conduct and the lack of any directly causative external factor, and Mr Ali's own concession that his offending against Ms Deng was "very serious" to conclude that his conduct was very serious.
76 For these reasons, Ground 1 fails.