Anaki v Minister for Immigration and Border Protection

Anaki v Minister for Immigration and Border Protection (Migration) [2016] AATA 693

Applicant 4264 of 2011 v Minister of Immigration and Citizenship [2011] AATA 920

BFXK v Minister for Immigration and Border Protection [2018] AATA 886

Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47

Do v Minister for Immigration and Border Protection (Migration) [2016] AATA 390

Fu (Migration) [2018] AATA 732

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166

HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013

Irving v Minister of State for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 68 FCR 422

Labi v Minister for Immigration and Border Protection (Migration) [2016] AATA 316

Mahu v Minister for Immigration and Border Protection (Migration) [2018] AATA 161

Mendoza v Minister for Immigration and Border Protection (Citizenship) [2018] AATA 686

QSBL v Minister for Home Affairs (Migration) [2018] AATA 2074

Rabino and Minister for Immigration and Border Protection (Migration) [2016] AATA 999

Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10

Siueva v Minister for Home Affairs (Migration) [2018] AATA 1079

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Tauariki v Minister for Immigration and Citizenship [2013] AATA 475

Tumaialu v Minister for Immigration and Border Protection (Migration) [2016] AATA 863

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

Visa Cancellation Applicant v Minister for Immigration and Citizenship [2011] AATA 690

Waits v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336

XFKR v Minister for Immigration and Border Protection (Migration) [2017] AATA 2385

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

1. This is an application by Mr Shamsher Ali, a citizen of Fiji, seeking action by this Tribunal to review a decision made by a delegate of the Minister on 24 April 2018,[1] not to revoke the mandatory cancellation of Mr Ali's visa.

THE APPLICANT - HIS FAMILY AND PERSONAL HISTORY

1. 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, whom 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.[2]
2. 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.[3] There is medical evidence before the Tribunal which confirms the degree of Mr Ali's resultant disability.[4]

1. Mr Ali has made at least 23 appearances before the Courts between April 1993 and April 2017.[5] 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).[6]
2. The Tribunal regards this to be an extensive criminal record.
3. As such, it rejects Mr Ali's own statement that he has "only committed a few minor offence[s]"[7] and the statement of his legal representatives that "the applicant has only committed a few offences within the span of twenty years".[8]
4. The Tribunal also notes that the document submitted by Mr Ali's legal representatives only lists 6 offences between 1997 and 2017[9] compared with the 23 in the National Police Certificate.[10]
5. While the Tribunal accepts that there has been a gap of seven[11] years between Mr Ali's most recent conviction (13 April 2017) and the previous conviction (17 March 2010), it also notes that the more recent offences appear to be of greater gravity than those which preceded it.
6. 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[12]:

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.

1. 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.
2. The Tribunal will consider the nature of these offences and Mr Ali's responses to his convictions subsequently in these reasons.

1. Mr Ali's solicitors advise the Tribunal, and Mr Ali confirmed in evidence, that he arrived in Australia for the first time in 1988 (exact date not specified) when he would have been around 29 years of age.[13]
2. By contrast, the Respondent states:

An extensive search of departmental and external records has failed to locate a date of first arrival for Mr Ali.[14]

1. The Department of Immigration and Border Protection's (the Department[15]), records show a first departure date for Mr Ali being 6 July 1989 and his first recorded arrival date as 6 January 1996, with a most recent arrival date of 7 March 2013.[16]
2. This lacuna between July 1989 and January 1996 is most perplexing since Mr Ali was clearly in Australia during at least part of that period as he was appearing before the courts in April 1993, May 1993 and November 1994.[17]
3. The Tribunal notes that according to the Department:

A request to complete a questionnaire was sent to Mr Ali on 19 May 2017. Mr Ali did not respond to the request.[18]

1. Mr Ali stated that he does not remember receiving such a communication.
2. The records of the then Department appear peculiarly deficient in relation to Mr Ali, in that there is no record of his first arrival in Australia and then further, they show a first "departure" on 6 July 1989 and a first "recorded arrival" on 6 January 1996 - a period in which Mr Ali told the Tribunal he was living in Australia.
3. There does not appear to be anything immediately germane to the Tribunal's determination arising from this, although it is a matter of some concern in terms of its incompleteness in allowing the Tribunal to be sure of Mr Ali's lawful residential status throughout the period. For the sake of the record, the Tribunal notes that it draws no inferences negative to Mr Ali as a result.
4. At the time of the visa cancellation, Mr Ali was holding a Class BB Subclass 155 Five Year Resident Return visa. This visa was cancelled on 16 June 2017.

1. Subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) provides that the Minister must cancel a person's visa in the following circumstances:

(a) the Minister is satisfied that the person does not pass the character test because of the operation of:

(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii) paragraph (6)(e) (sexually based offences involving a child); and

(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

1. This visa cancellation process is mandatory.
2. Subsection 501(6)(a) of the Act then provides that a person does not pass the character test if they have a "substantial criminal record". Relevantly, for this application, subsection 501(7)(c) of the Act provides:

For the purposes of the character test, a person has a substantial criminal record if:

...

the person has been sentenced to a term of imprisonment of 12 months or more.

1. Importantly, in the case of Mr Ali, the reference in the legislation is to whether a person "has been sentenced to" and not to "is serving" a term of imprisonment at the time of the visa cancellation. Mr Ali, in his letter to the Tribunal of 5 July 2018 and in his oral submissions failed to appreciate the difference between these two situations.[19]
2. It can thus be seen clearly in relation to the Applicant that the cancellation of his visa was an automatic process: he was under a sentence of imprisonment and further, he cannot meet the required "character test" because that sentence was for a period of greater than twelve months.
3. Once the original decision has been made the Minister must notify the person and give them an opportunity to respond to it.
4. Section 501CA of the Act outlines the process:

(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a) would be the reason, or a part of the reason, for making the original decision; and

(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3) As soon as practicable after making the original decision, the Minister must:

(a) give the person, in the way that the Minister considers appropriate in the circumstances:

(i) a written notice that sets out the original decision; and

(ii) particulars of the relevant information; and

(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

1. It is up to the individual concerned to place before the Minister whatever information they think is relevant for the Minister's consideration. Upon receipt of such representations, the provisions of subsections 501CA(4)-(5) of the Act come into effect as follows:

(4) The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(b) the Minister is satisfied:

(i) that the person passes the character test (as defined by section 501); or

(ii) that there is another reason why the original decision should be revoked.

(5) If the Minister revokes the original decision, the original decision is taken not to have been made.

1. A decision on such an application is, in most circumstances, made by a delegate of the Minister. In Mr Ali's case, this review decision resulted in a determination that the mandatory revocation should not be set aside.[20] This is the reviewable decision.
2. In coming to their decision, the delegate noted that, since the Applicant had, by definition, failed the character test, it was required that the delegate consider whether there was "another reason" for the revocation to be set aside.
3. In doing so, the delegate followed the requirements set out in the Ministerial Direction No. 65 (Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA) (the Direction) in coming to their conclusion. This is because under subsection 499(1) of the Act, the Minister may give written directions to a person or body having functions or powers under the Act if such directions concern the performance of those functions or the exercise of those powers. When a direction has been given in accordance with subsection 499(1) of the Act, the affected person or body must comply with it.[21]
4. Where a decision has been made by a delegate of the Minister under subsection 501CA(4) of the Act not to revoke a mandatory cancellation of a visa, the affected person may make an application to the Tribunal seeking a review of that decision under subsection 500(1)(ba) of the Act. The Applicant lodged his application for review with the Tribunal on 30 April 2018.[22]
5. The application was heard by this Tribunal on 9 July 2018. Under the requirements of subsection 500(6L)(c) of the Act, the Tribunal must determine the matter within 84 days of the date upon which the Applicant was notified of the reviewable decision. In this case, the matter must be determined on or before 17 July 2018. In the absence of a decision by that date, the reviewable decision would be deemed to have been affirmed.

1. Subsection 501CA(4) of the Act provides a mechanism whereby the Minister may revoke a mandatory cancellation of a visa which was made on the grounds that the holder has a "substantial criminal record".[23]
2. The legislation requires that the Minister, in doing so, must be satisfied that the Applicant either meets the character test set out in section 501 of the Act, or that there is another reason for so doing.[24]
3. Similarly, it then falls to this Tribunal to decide whether or not to set aside the original decision and either recommend that the Ministerial discretion be exercised in favour of the Applicant, or set aside and substitute another decision, by answering the same question.
4. It is clear and not in dispute that the Applicant does not pass the character test and, consequently, the issue before the Tribunal is whether under subsection 501CA(4)(b)(ii) of the Act "... there is another reason why the original decision should be revoked".
5. In Gaspar v Minister for Immigration and Border Protection,[25] North ACJ elaborated on how to approach this discretion:

The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.[26]

The existence or otherwise of "another reason" should be established on the balance of probabilities.[27]

1. However, before proceeding to consider matters according to the requirements set out in the Direction, the Tribunal thinks it appropriate to interpolate a summary of the evidence presented in support of Mr Ali by various members of his family.
2. Initially, evidence was taken from his adult daughter, Nafiza Kasim, and son, Mohammed Kasim, both of whom had lodged statements of support with the Tribunal.[28]
3. All members of the family live together in a four-bedroom house at Ropes Crossing in New South Wales so that the household consists of Mr Ali, his partner Ms Bibi, Ms Nafiza Kasim and her three young children, and Mr Mohammed Kasim.
4. Both witnesses told the Tribunal that their father was a good and caring man, that he had given them good and secure childhoods and that they would be devastated were he returned to Fiji.
5. Ms Kasim, a single mother, told the Tribunal that her father was loved by her three young grandchildren and that she was dependent upon him and her brother for financial and emotional support. Mr Kasim supported this testimony, telling the Tribunal that he was employed full-time as a fork-lift driver and was the main source of income for the family.
6. Both witnesses, when asked directly if they had ever seen Mr Ali and Ms Bibi "fight", indicated that they had not. Both indicated that they were aware of some "arguments" from time to time, but that they had never seen any acts of domestic (or other) violence. They both attested that such matters were not, in any case, discussed within the family.
7. Both denied ever having seen Ms Bibi with scratches or bruises on her face as a result of any violence inflicted upon her by Mr Ali. On the other hand, Mr Kasim told the Tribunal that he does remember that there may have been such incidents which he recalled "when I was younger", but he was unable to be more specific than that.
8. Mr Ali himself stated that, as his children had said, such matters were not discussed in the family and that he had explained to them, when previously arrested for acts of violence, that these had resulted from the fact that he and Ms Bibi occasionally "fight with each other".
9. To be frank, the Tribunal finds it hard to accept that, with all of the members living together under the same roof, that Ms Kasim and Mr Kasim would have been unaware of such matters as the calling of the police by Ms Bibi in April 2017. Nor can they have been unaware of the fact that Ms Bibi presented with scratches under her right eye and bruising on her face, as evidenced in the presentation of a photograph revealing this to the Local Court.[29] These details are discussed below.
10. The Tribunal understands the reticence of children, who no doubt love their father, to give evidence which might appear prejudicial to him, but at the same time the Tribunal cannot simply accept, at face value, evidence which is not entirely plausible in terms of what was not, or could not be said. Even bearing in mind the cultural norms of the family, the Tribunal is not able to place significant weight on this testimony.
11. After some initial confusion as to whether or not Ms Bibi's statement had been received by the Respondent within the time limit imposed by subsection 500(6H) of the Act, the Respondent's enquiries as to this issue indicated that it had been and, therefore, Ms Bibi's statement was admitted into evidence[30] and her oral testimony was taken.
12. In her testimony, Ms Bibi stated that she loved Mr Ali and that he was a good father and provider for both her and her children. She stated how much she missed him when he was in various forms of detention. She agreed with his assertion that their relationship had grown stronger as a result of recent events and that he was becoming "more religious". By this she meant that he prayed more often, but agreed that even as a practicing Muslim he continued to drink alcohol, although in lesser amounts than previously. The Tribunal noted this as a matter tending to Mr Ali's favour given his previous poor alcohol-driving-related record.[31]
13. Ms Bibi told the Tribunal that she had been receiving carer's allowance in respect of Mr Ali from approximately 2010 until shortly after Mr Ali's incarceration in 2017, and that she was unable to continue employment due to her responsibilities to look after Mr Ali and help with the upbringing of her grandchildren.
14. However, on the matters of her position as a victim of domestic violence, she was far less forthcoming. She told the Tribunal that she had no memory of the events of 2010, which had led to Mr Ali's previous conviction of domestic violence. She characterised the events of April 2017 as being where Mr Ali had "pushed her and [she] had fallen". This is not consonant with the evidence presented to the Local Court, upon which Mr Ali's conviction was recorded, especially the photograph of her injuries. She intimated to the Tribunal that her statement to the police may have contained "inaccuracies", but agreed that she expressed no such concerns when such evidence was before the Court. She further agreed, in relation to that incident, that she had indeed run out of the house in some degree of fear and had called the police on her mobile phone.
15. When asked by the Respondent if she would move back to Fiji in the event of Mr Ali's return there, Ms Bibi stated that she would not. Although Ms Bibi arrived in Australia from Fiji in 1989 at the age of approximately 20,[32] she became a naturalised Australian citizen in 1996 or 1997 and believed she would have problems relocating to and living in a "foreign" country. She stated that if Mr Ali returned she would continue to live in their home in Wiseman Circuit in Ropes Crossing with the support of her son and daughter.
16. Because it is a matter relied upon by the delegate in their assessment of the criteria related to the best interests of minor children, it is important for the Tribunal to record that all three witnesses stated that the minor grandchild referred to in the sentencing remarks was not present at the scene of the assault in question. However, only Ms Bibi (who so testified) was actually present to know from personal observation.
17. The Tribunal proposes to defer from commenting on Ms Bibi's evidence until it deals with it under the subheading of "Impact on Victims" below.
18. Informed by this evidence, the Tribunal is now in a position to consider the facts which the legislation and the Direction require it to take into account.

1. Ministerial directions, issued to guide decision-makers, including this Tribunal, in their interpretation of various sections of the Act are made under section 499 of the Act. There is a long history of such directions being made, stretching back to 1983.[33] The current direction, number 65, was made on 22 December 2014 (the Direction). It establishes various matters for consideration, describing some as "primary considerations" further to "other considerations".

1. The "primary considerations" related to revocation requests include:

(a) Protection of the Australian community from criminal or other serious conduct;

(b) The best interests of minor children in Australia [affected by the decision]; and

(c) Expectations of the Australian community.[34]

Nature and Seriousness of the Non-Citizen's Conduct and the Risk of Further Offending_**

1. The Direction gives further guidance on matters to be taken into account when assessing this consideration, namely:

(a) The nature and seriousness of [the Applicant's] conduct to date; and

(b) The risk to the Australian community should [the Applicant] commit further offences or engage in other serious conduct.[35]

1. Questions of risk of further offending are notoriously difficult to assess. The Direction draws attention to matters such as the level of tolerance of the Australian community for any risk of future harm; the nature of that potential harm to the Australian community and its likelihood, "taking into account available information and evidence on the risk" of re-offending.[36]
2. There is significant judicial guidance as to how this Tribunal should approach the assessment of risk.
3. In Sabharwal v Minister for Immigration and Border Protection,[37] there was considerable discussion about the way in which the Minister had assessed the "risk" of the applicant re-offending by linking it to the consideration of the applicant's past conduct, especially in relation to a further link between that offending and the consumption of alcohol. In particular, Kerr J stated:

That "limb" of the character test arguably involved some subjective element - it required the Minister to be satisfied of the likelihood that a person would engage in criminal conduct.

...

By contrast, s 501(6)(d)(i) now provides an objective test. The statutory criterion required for the current character test to be engaged is that there is "a risk" that, if the person is allowed to enter or remain in Australia the person would engage in criminal conduct in Australia. The application of that criterion requires an evaluative judgement to be made - but it would be inapt to describe that as a subjective test.[38]

1. The assessment of risk must take into account all matters before the Tribunal. In Fu (Migration),[39] this Tribunal, in assessing a student visa cancellation, stated in circumstances which I believe to be properly analogous:

As noted in MZAJA v Minister for Immigration and Anor [2017] FCCA 448 at [15], the task of the Tribunal in respect of s 116(1)(e) is to assess the risk to the community based on all of the information available to the Tribunal.[40]

1. The Tribunal notes that the Direction itself directs attention to what it states to be "an unacceptable risk".[41] Clearly then, government policy recognises that there are some risks that are "acceptable". Common sense demands no less - there cannot be any entirely risk free situations.
2. The Tribunal notes that the delegate, in considering this matter, came to the conclusion that "there is an ongoing likelihood that Mr Ali will reoffend".[42]
3. However, it is the responsibility of this Tribunal to assess any applicant's personal risk of re-offending and to do so de novo, based on all the material before it and the evidence presented at the hearing.
4. In his submissions, Mr Ali states several times that he promises that:

I will not reoffend as I have learnt my lesson being in prison and Villawood detention. This has corrected me to an extent that I will never want to think about committing any act which will lead me to so much misery and suffering for [a] person of my age. I will be taking correct medication for my injury as well and avoid further incident in future.[43]

...

I have spent four months in prison in Parklea Correctional Centre. This has really taught me [a] lesson as it was the most difficult time of my life. I would not like to go through the same suffering and misery again. There for [sic] I will never commit any offence which make my life a misery and suffering which I had. I would not commit any thing which would jeopardize my family and the Department.[44]

...

I apologise and saying I am very sorry for all the problem I caused in the past, my criminal offence etc. I paid the price for my action and hopeing [sic] it won't happen again in near future, I promise.[45]

...

I am asking the Department of Immigration to give me [a] last chance to prove myself to be a better person in the future.[46]

...

I have learnt my lesson and wish I never return to prison or detention centre again in my life and now focus on my family future and my well being. [...] I am not a threat to anyone including my wife. I am 59 years old and absolutely harmless. [...] I am very sorry and apologise [...] for my actions, also asking the delegate to give me [a] last chance to prove myself to be a better person in the future.[47]

...

In the jail for 4 month has impected [sic] me a lot and so much difficulty I was going through because of my disability, I was helpless in the prison which was the hardest time of my entire life. I promise to my wife and myself that this is the last time. Not to commit any offence in the future. I apologise to every one in this matter and feeling sorry for the whole incident that took place.[48]

1. The Tribunal has referred, at some length, to the familial evidence in support of Mr Ali provided both in writing to the Tribunal and in oral evidence before it.
2. Against this, I have to consider the fact that Mr Ali has committed repeated offences involving various acts of violence, including acts of domestic violence. He does not appear to have learned any lessons and he has re-offended despite earlier warnings and sentences of imprisonment. Indeed, it appears that the threats or prospects of imprisonment, which were suspended and replaced with bonds had little or no impact upon Mr Ali, and his "lesson" was only learned and his behaviour allegedly modified by the actual experience of imprisonment itself.
3. The remarks of the sentencing Magistrate in the New South Wales Local Court (Mount Druitt) on 13 April 2017 are both relevant and recent.
4. I have taken note of the following passages in the transcript of those proceedings:

HIS HONOUR: You are here for sentence today, is that correct? You have seen the probation services, are you ready to proceed now?

ACCUSED: Yes.

HIS HONOUR: Yes, what do you want to say about this matter, Mr Ali?

ACCUSED: Well, I've not [got] much to say about that. What happened I had a bit of argument with my wife and I feel sorry about it now but because I was in the situation then I wasn't feeling great and it's not going to happen again.

HIS HONOUR: How can you say that; this is the seventh time you've been before the Court for assault?

ACCUSED: This is clearly not may [sic] fault too, you know, I mean she make me arguing all the time, you know, and I try to walk away most of the time and that what I'm going to do again and all like if she get angry with me or anything like that I will try to walk away and make sure that never happen again.[49]

1. It is important to recount the nature of the offence which bought Mr Ali before the Court on this occasion and which resulted in his prison sentence, on this occasion, not being suspended but enforced.
2. Mr Ali was convicted of an act of domestic violence in which the Court accepted that he punched his wife on the right side of her head with a closed fist, causing immediate pain. His wife fell to the ground whereupon Mr Ali kicked her three times to her legs and back, causing her pain. When she sought to cover her face with her hands, Mr Ali grabbed her hands, removed them from her face and grabbed her face, squeezing it in a fashion that caused scratching and minor bleeding below her right eye.
3. What was more alarming was that all this took place in front of Mr Ali's three year old grandson for whom the couple were caring and who was living with them at the time. Although this was subsequently denied by family members in evidence, it was accepted by the Court and remarked upon by the sentencing Magistrate. The Tribunal prefers to accept the verdict of the Court in this respect over the subsequent statements made to the Tribunal. It can well understand that now that the family appreciates the gravity of Mr Ali's situation that they would naturally seek to ameliorate aspects of the evidence which weighs against him. However, the evidence which was before the Court is, in the opinion of the Tribunal, more likely to have been an accurate statement of the events in question.
4. After recounting Mr Ali's extensive history of offences, the sentencing Magistrate made the following observations:

You dispute the police facts. You said the argument was [...] initiated by her and you blame her for it. You admitted saying that you pushed her in the face although you denied [that] you had kicked or punched her. In hindsight you said that you are embarrassed. The Court thinks more than that. Punching and kicking your wife of 27 years in front of the grandson of three years old that you care for is appalling and disgraceful. The ongoing beating of her by punching, kicking and grabbing her went on it seems on several occasions.

...

[T]he Court must reflect upon the extreme or must take into account the extreme seriousness of the violence perpetrated on the victim; punching, kicking, punching again and then when she thinks you are going into the kitchen to get a knife she runs out and calls the police. You come before the Court with an appalling history of violence. You have received bonds on at least five occasions; you have received prison sentences for the last two times and had them suspended. The Court will take into account you pleaded guilty but it is of the view that given the extreme seriousness of the violence; punching, kicking, to a woman who was looking after a three year old grandson and this was perpetrated in front of him and she had to run off and call the police, the Court regards your violence as appalling and disgraceful and merits no other sentence than a sentence of fulltime imprisonment.[50]

1. This Tribunal cannot ignore the comments of the Court, nor can it ignore the fact that Mr Ali has been convicted of numerous acts of violent behaviour. In fact, Mr Ali has convictions for assaulting police (September 1992); common assault (May 1997); common assault (December 1998); assault occasioning actual bodily harm (September 2004); common assault (October 2008); common assault (November 2009); and assault occasioning actual bodily harm (February 2017).[51] The Respondent makes the point in their submission that Mr Ali's pattern of "recent offences involve increased violence"[52] and that the Tribunal should take note of this.
2. Equally, it cannot turn a blind eye to the fact that repeated appearances before the Court and two previous sentences, both suspended, failed to deter Mr Ali from continued acts of aggression. Finally, to commit these acts in front of a three year old child, for whom caring responsibilities were owed, demonstrates a manifest lack of the enduring moral qualities to which the courts have made reference.[53]
3. It is also noteworthy that Mr Ali has consistently sought to blame others and to deny that this particular act of violence was in any way his fault.
4. This combination of escalating levels of violence, the blaming of victims and the commission of offences in the presence of children is absolutely analogous to a case recently decided by another Tribunal which, in declining to set aside the visa revocation, made the point that this pattern of behaviour is exactly what is proscribed in subclauses 13.1.1(1)(a)-(b) of Part C of the Direction, whereby crimes committed "against vulnerable members of the community" are to be regarded as serious.[54]
5. In none of Mr Ali's submissions to the Tribunal does there appear any instance of him expressing an understanding of the impact of his actions on his wife or others; any sense of remorse for what they have been through as a result of his actions. The concerns are all manifestly about himself and his sufferings and feelings. There is simply no acknowledgement that this is not about Mr Ali: it is about the people that he has harmed.
6. Mr Ali states that this last offence "was some time ago" and that there had been an eight year hiatus between offences.[55] He goes on to say that his age and experiences have led him to be more mature in his thinking and that at his age he is unlikely to constitute "a risk to the community" or to his "beloved wife".[56]
7. The last offence was not "some time ago" - it was only just over twelve months ago and, at the time of the offence, Mr Ali was 58 years of age.
8. As such, the Tribunal is not prepared to assess Mr Ali's risk of offending as low, but rather agrees with the delegate that there is a likelihood that it will reoccur.
9. The result of this consideration is strongly that the protection of the Australian community would be better served by Mr Ali's visa being revoked.

Best Interests of Minor Children in Australia

1. Mr Ali advances this claim strongly in his representations to the Tribunal, claiming that his relationship with his three grandchildren (aged 7, 5 and 3) is close. They are the children of his daughter, Ms Nafiza Ali Kasim, who is a single parent and she and the children reside with Mr Ali and his wife.
2. Ms Kasim, in her letter of support describes Mr Ali as a "loving" man and asserts that she would find it difficult to live without her father being in Australia as she already suffers from depression. In relation to the minor children, she states that Mr Ali is missed by them and they find it hard to explain his absence owing to imprisonment and detention. She says that he (Mr Ali) is "the only father like role model in their lives".[57]
3. Similarly, Mr Ali's wife writes to the effect that he has been a major part of the lives of their grandchildren and has been active in supporting their growth and development, as well as providing physical assistance and care for them.[58]
4. I accept that the non-revocation of Mr Ali's visa cancellation, resulting in his separation from his grandchildren, would have an impact upon them and that they would suffer from his loss.
5. This tends to suggest that this criterion should be counted as weighing in Mr Ali's favour. This conclusion is not contested by the Respondent.
6. However, I qualify the degree to which I weigh this factor in Mr Ali's favour by the fact, to which the sentencing Magistrate gave considerable weight, that Mr Ali was prepared to assault and beat his wife in front of one of the young grandchildren. It cannot, in any way, be in the best interests of any minor child to watch his grandfather assault and beat his grandmother and to see her injured and to flee into the street, in fear of her safety, and call the police.

1. It is useful to set out in full the guidance provided in the Direction as it relates to the way in which this consideration should be addressed. The Direction provides:

The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa calculation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.[59]

1. Mortimer J has characterised this consideration as, in effect, always weighing against any applicant. Her Honour has stated that:

In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the "expectations" about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to "tolerance") the Australian community's "expectations" are defined only in one particular way: namely, that the Australian community "expects" non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.

...

I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do.[60]

1. In Uelese v Minister for Immigration & Border Protection,[61] Robertson J similarly remarked:

In my opinion, the reference by the Tribunal to what the Australian community expected of the Australian Government was not a matter that required evidence but was a statement of the views or policy of the Government. The language in paragraph 6.3(2) of the Direction, that the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia, is found in a list of seven "Principles". There is a further reference to the expectations of the Australian community in paragraph 9.3 of the Direction where the statement is made that the Australian community expects non-citizens to obey Australian laws while in Australia. It states that where a non-citizen has breached, or where there is an unacceptable risk that they will breach, this trust or where the non-citizen has been convicted of offences in Australia, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate, the paragraph states, "simply because the nature of the character concerns or offences were such that the Australian community would expect that the person should not continue to hold a visa". The paragraph ends by stating that decision-makers should have due regard to the Government's views in this respect.[62]

1. On the other hand, I would draw attention to this Tribunal's rulings in a number of similar matters which perhaps shift the balance somewhat more towards the Applicant.
2. In Mahu v Minister for Immigration and Border Protection (Migration),[63] Deputy President Boyle dealt with an applicant whose offending history was somewhat more extensive and serious than the Applicant's. In this case, the Deputy President recognised that the Direction itself imports a greater degree of tolerance being afforded to those who, like the Applicant, have spent a considerable period of their life living in Australia.[64]
3. Deputy President Boyle quoted the words of Deputy President Forgie in Rabino v Minister for Immigration and Border Protection (Migration)[65] that "the Principles are directed to whether the Australian community is prepared to give the person another opportunity to remain in Australia"[66] and then stated: "That assessment should be made on the basis of the individual circumstances of each case and considered in the light of the purpose of the legislation".[67]
4. In submissions made by the Applicant's legal representatives, the attention of the delegate (and hence this Tribunal) was drawn to two cases determined by the Tribunal, which were characterised as being cases in which:

[B]oth of the review applicant's had a significantly greater criminal record than the applicant (Shamsher Ali) and in both cases the review applicant's visa's [sic] were not cancelled due to having support from close family.[68]

1. The Tribunal was invited to follow these cases as precedents. As these cases were specifically urged upon the Tribunal, I think it proper to consider both in detail and come to some conclusion related to the Applicant's pleading.
2. The Tribunal does not necessarily agree with the characterisation of these two cases as being quite as simple in their determination as the Applicant argues.
3. In Tauariki v Minister for Immigration and Citizenship,[69] the Tribunal stated that the considerations were "very finely balanced",[70] but the fact that the applicant had minor children of his own and minor step-children (plus a variety of nephews and nieces) effectively outweighed the other primary considerations.[71] In Mr Ali's case, the matter of the interest of minor children, who are in fact his grandchildren, has been discussed and the degree of weight attached to this consideration has been assessed differently to a significant degree. The same may also be said of the other "primary" considerations.
4. In Tumaialu v Minister for Immigration and Border Protection (Migration),[72] Senior Member Stefaniak similarly made the point that his conclusion was reached "by the smallest of margins".[73] In this instance, the Senior Member took into account a number of factors related to the applicant's age on arrival in Australia (6 years as against Mr Ali's 29 years, leading to different conclusions which may be drawn about the impact of returning to a country with which he had no familiarity); the impact of his childhood upbringing; the low risk of re-offending; the fact that he was not an initiator of the offences, merely a "foot soldier" (whereas Mr Ali is an initiator); and that he had been a "model prisoner" who had engaged in prison rehabilitation programmes[74] (whereas Mr Ali had declined to participate in the REINVEST programme[75] while in custody).
5. After examining the significant and material differences in the circumstances of the two cases cited on behalf of the Applicant, I am satisfied that there are cogent reasons not to accept that they are entirely analogous or that the Tribunal should rely upon them without detailed examination and assessment of the different facts in this application.
6. The Tribunal also notes Deputy President McCabe's comments in Do v Minister for Immigration and Border Protection (Migration)[76]:

A decision-maker is, to some extent, required to guess at the community's expectations. [...] As I begin my deliberations, I assume the Australian community would be fair-minded and mature. [...] The community would certainly not be vengeful. The applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment. I would also expect the community to be conscious of the length of time the applicant has lived in Australia and other circumstances which might assist the community to form a proper judgment about the individual and what should be done.[77]

1. A similar formulation was expressed by this Tribunal in Waits v Minister for Immigration and Multicultural and Indigenous Affairs[78]:

[T]he expectations of the Australian community should be taken to be the expectations of the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.[79]

1. Deputy President McCabe encapsulated the Tribunal's general approach in Labi v Minister for Immigration and Border Protection (Migration),[80] holding that:

The Direction points out the Australian community expects non-citizens will obey Australian laws while they remain in this country. But the Direction implicitly acknowledges the community is not completely intolerant of risk: rather, it will have regard to the nature of the character concerns or offences and make a reasonable judgment. In short, one can rely on the Australian community when fully informed of the facts, to demonstrate some perspective and settle on an outcome that is proportionate.[81]

1. Finally, I refer to the Tribunal's decision in Anaki v Minister for Immigration and Border Protection,[82] where it held that:

The consideration of Australian community expectation allows, impliedly at least, reasonable judgement by a decision-maker, bringing appropriate perspective and proportionality to bear in the assessment of risk. Furthermore, the expectation must be considered contextually, relative to factors arising in relation to other principles set out in [the] Direction 65.[83]

1. However, they are also to be assessed in light of the Tribunal's authority, in particular, by consideration of the individual circumstances of the specific Applicant: proportionally; contextually; with a sense of perspective; non-vengefully; and from the point of view of an informed and reasonable member of the community who is fair-minded and mature.
2. With reference to a previous Ministerial Direction covering the same issues,[84] the Full Court of the Federal Court of Australia referred to "the three elements in the cl 7(1)(b) calculus"[85] which must be considered by the Tribunal. In that Direction, the three elements referred to were the likelihood of future harm being done; the extent of that potential harm; and the degree to which a risk of harm should be tolerated by the Australian community.[86] The "calculus" under the Ministerial Direction No. 65 involves a larger number of elements, but the principle of their appropriate balancing remains the same.
3. I believe that the Australian community would want this Tribunal to weigh up its proper disapproval and rejection of repeated offences of assault and domestic violence, especially those committed against vulnerable women against the prospect of affording a "second chance" to offenders who are, in the Tribunal's opinion, not without risk of re-offending.
4. In Anaki v Minister for Immigration and Border Protection (Migration),[87] the Tribunal based its discussion around the consideration expressed as follows:

On balance, while the limit of tolerance of Mr Anaki's offending conduct has been reached and tested, it has not yet been exceeded.[88]

1. It falls to this Tribunal to determine whether or not, in Mr Ali's case, that limit of tolerance has been reached.

1. Domestic violence is a scourge on the Australian community. In Mendoza v Minister for Immigration and Border Protection (Citizenship),[89] this Tribunal made its position clear when it stated that:

The Australian community, rightly, professes zero tolerance for violence against women. There is zero tolerance for domestic violence perpetrated against any woman, man or child. Such forms of violence are unacceptable at any time - in any place - in any circumstances - and whether manifest physically, emotionally or psychologically.[90]

1. The approach taken by this Tribunal in relation to matters of domestic violence follows the clear guidance given by Deputy President Kendall when he stated that:

The Tribunal would add that, in a society that adheres to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systemically intolerable. Its harms are threefold. First, it results in direct physical and psychological harm for those women against whom the violence is directed. Second, it psychologically harms the children of these women - children who, as in this instance, witness their mothers being abused, degraded and dehumanised-and sends a message to these children (male and female) that behaviour of this sort is to be tolerated. Third, it normalises those socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated.[91]

1. The Tribunal accepts in relation to Mr Ali that the facts of his assaults on his wife were as described in the sentencing remarks of the Magistrate in relation to the April 2017 event and that his wife was also the victim of the 2010 charges which had led to a previous conviction and sentence of imprisonment (suspended). It accepts that he struck his wife with his fist, kicked her while on the floor, and took her violently by the head. It also accepts that this was done in the presence of a minor grandchild. It accepts the inevitable conclusions resulting from the photograph presented to the Court, illustrating the scratches and bruises inflicted on Ms Bibi.
2. It rejects Mr Ali's assertion, in evidence, that the matters before the Court were only "the police version" of events and that they were simply not true.
3. It also rejects Mr Ali's assertion, in evidence, that he merely "pushed [her] in the face with [his] finger" and that there was nothing more to the event.
4. When confronted with the remarks of the sentencing Magistrate in relation to a photograph before the Court showing Ms Bibi's injuries, Mr Ali's response was to state that when photographs "were taken too close up" they made things look worse.
5. Throughout his written statements and in evidence, Mr Ali displays absolutely no sense of offering other than a formal apology and no sense of contrition for his actions. He continues, at all stages and levels, effectively to deny that serious assault took place and, on all occasions, attempts to downplay the event (into some sort of "little argument") and to shift blame to the victim: "This is clearly not may [sic] fault too, you know, I mean she make me arguing all the time, you know [...]".[92]
6. The Tribunal's assessment of the calculus referred to above, is that the Australian community would expect that a man who beats up his wife in front of one of his tiny 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 the laws of Australia and actually blames his wife for her own victimhood, should not be the holder of an Australian visa.
7. On this criterion, that is also the opinion of the Tribunal.

1. Having considered the "primary" matters as required under clause 13 of Part C of the Direction, the Tribunal is required to address the "other considerations" set out in clause 14 therein.
2. There is a very recent and important authority from the Federal Court guiding the Tribunal in its approach to the assessment of these "other" considerations when examining matters related to an appeal against a decision not to revoke a visa cancellation.
3. In Suleiman v Minister for Immigration and Border Protection,[93] Colvin J stated:

[D]irection 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' [...] It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[94]

...

To treat the other consideration as secondary irrespective of its character in the particular case does not conform to the language of Direction 65. So, in this case, even though the Tribunal found that the applicant was 'at risk of harm - arguably even death given the consequences that flow from this mental disability if left untreated' this was a matter that it placed as always being of lesser importance than the primary considerations. The Tribunal did not consider, as it was required to do by Direction 65, whether in the specific circumstances the nonrefoulement obligations should be afforded greater weight.[95]

1. This approach was recently approved and followed by the Federal Court in HSKJ v Minister for Immigration and Border Protection.[96]
2. It is in the light of this guidance that the Tribunal turns to consider the "other" matters, which include (but are not limited to):

(a) International non-refoulement obligations;

(b) Strength, nature and duration of ties;

(c) Impact on Australian business interests;

(d) Impact on victims;

(e) Extent of impediments if removed.[97]

1. There do not appear to be any non-refoulement obligations vis-à-vis Mr Ali's potential return to Fiji. This matter counts neither for nor against Mr Ali's application.

1. Mr Ali obviously has significant ties to Australia. He has lived here for just over half of his life - that is, 30 out of 59 years.
2. He has contributed to the Australian economy as a person who was in gainful employment for some 20 years and undoubtedly would have worked longer had he not suffered an industrial accident which curtailed such activities. The delegate, in their report, acknowledged that Mr Ali had been a taxpayer and that he and his wife have freehold title to the family home.[98]
3. He has extensive family ties and connections through his children, grandchildren, siblings, nephews and nieces. Their support for him in this application was manifest and sincere. There is evidence that Mr Ali has contributed both emotionally and financially to the welfare of members of his extended family. Several members of the family express a degree of dependence on him and record significant impact on their own lives as a result of his removal into custody. He is uniformly described as helpful and caring.[99]
4. Mr Ali presented no evidence, nor is there any other evidence before the Tribunal, that Mr Ali has been engaged in, or made any contribution to, any community or social organisations or activities other than those relating to his family.
5. On the other hand, the Tribunal is also conscious of the fact that Mr Ali has been in Australia for a sufficient length of time to know that domestic violence is unacceptable to the Australian community and contrary to the standards expected of responsible members of it. He does not appear to have accepted or internalised this premise. Equally, his very poor driving record demonstrates a continuing contempt for, and disregard of, the laws of Australia.
6. Nevertheless, on balance, given his family and employment history in Australia, the Tribunal accepts that this factor counts in Mr Ali's favour in relation to his application.

1. There are no matters to be considered under this specified item. As such, it counts neither for nor against in any consideration of this application.

1. The principal victim of Mr Ali's violent behaviour has been his wife, Munifa Bibi. She has provided very strong support for Mr Ali's application, both in writing[100] and in oral evidence before the Tribunal.
2. It is always difficult for any Tribunal to assess evidence when presented by a wife who has been a victim of domestic violence. Despite the Applicant's behaviour, Ms Bibi has remained with Mr Ali and has become his principal carer - indeed she was paid government benefits in this role. Mr Ali asserts that since his imprisonment and his alleged coming to a realisation of the nature of his behaviour, he and his wife have grown closer.[101] This was also stated by Ms Bibi in her evidence, but there is no way that the Tribunal can assess the objective validity of this claim one way or another.
3. It is not uncommon - indeed it is tragically all too common - for victim partners to stay with abusive partners and to continue to defend their actions. Mr Ali and Ms Bibi come from a culture where female deference to male authority is expected and where it is seen as shameful for family members to be anything other than publicly supportive of each other, no matter what the circumstances. It will be recalled that each of the four family members, in giving evidence, affirmed that this sort of issue was not regarded as a proper matter for discussion within the immediate family unit.
4. Nevertheless, the Tribunal has to accept in good faith what Ms Bibi has put to it and to take it into account.
5. Although if Mr Ali were permitted to remain in Australia and if he were to reoffend, it would almost certainly be Ms Bibi who would be most likely to suffer and be a victim. Her statements in support of Mr Ali must be taken as having been given in full knowledge of this possibility.
6. Not to take Ms Bibi at her word would be improperly disrespectful of her on the part of the Tribunal. Consequently, despite its misgivings, it concludes, at the very least, that this criterion does not, in itself, weigh against Mr Ali's application.

1. There would no doubt be some impediments facing Mr Ali were he to be required to return to Fiji. They are not necessarily easy to assess.
2. Obviously, removal from an extended network of family support would be an impediment and there is no indication that family members would return to Fiji with him where, in any case, they would not be citizens.
3. The Tribunal accepts that the quality of health care is not as great in Fiji as in Australia, although it is not unacceptable and that Mr Ali would be disadvantaged in this respect. It is also obvious that, at his age, and with his disabilities,[102] he would find it hard to secure employment and hence regular income. He does not have any close relatives in Fiji and has no access to accommodation.
4. On the other hand, Mr Ali lived in Fiji until he was 29 years of age, was educated and grew up there, and so it cannot be asserted that he would be unfamiliar with the country, its language, social customs, mores or culture. This is not a case of a person facing removal to a country which they have never visited or where they have no familiarity with the language and culture.
5. He would, on the other hand, have considerable financial resources (by Fijian standards) as he informed the Tribunal that if he were required to return, he would "sell the house". The Tribunal has no way of assessing the value of a four bedroom house in Ropes Crossing, but it cannot imagine, given the nature of the dwelling and the location, that it would be negligible and Mr Ali apparently owns it freehold.[103]
6. On this point, the Tribunal noted that while Mr Ali stated very clearly that, if he were forced to return to Fiji:

I would sell the house and the family would have nowhere to live.

1. This does not appear to be the understanding of Ms Bibi (or perhaps she is unaware of Mr Ali's intentions) who told the Tribunal that if Mr Ali were removed, she would not follow him to Fiji and would "continue to live" in the family home.
2. On balance, this criterion should be assessed as weighing in Mr Ali's favour.

1. After consideration of all the primary and other considerations which are required under the Direction, the Tribunal must come to a final conclusion. This final "calculus" has been characterised by the Tribunal in the following terms:

Having considered the applicable primary considerations and the other relevant considerations in this case, the ultimate task of the Tribunal is to determine, on the basis of the appropriate weight to be given to each of those considerations having regard to Direction [41], whether or not those considerations, on balance, favour cancellation, or non- cancellation, of the visa.[104]

1. Giving appropriate weight is not a mechanical process, it must by the very nature of the Act and the Direction be essentially subjective - a matter of fine judgment. As the Tribunal has said elsewhere:

The balancing process contemplated by the Direction is not a simple mechanical exercise. One does not reach a conclusion by assigning values to particular considerations and tallying the differences. Beginning with each of the primary considerations - and without forgetting other considerations that are generally regarded as being of lesser weight - we must ask ourselves: what is the preferable decision in this case?[105]

1. That is the broad approach which this Tribunal takes, although with the modification set out in Suleiman v Minister for Immigration and Border Protection[106] to the effect that the "other" or non-primary considerations are not necessarily considerations of "lesser weight".
2. 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.
3. 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.
4. 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.
5. The decision under review is affirmed.

I certify that the preceding 155 (one hundred and fifty-five) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

[4] Ibid 209-215; Tribunal Evidence A1 (Mr Ali's letter dated 1 June 2018), A3 (Ms Bibi's letter dated 24 June 2018).

[7] Tribunal Evidence A4 (Mr Ali's statement dated 5 July 2018).

[11] Ibid 21; Contra Ibid 54 (Not "eight" as submitted by Mr Ali's lawyers).

[15] Now the Department of Home Affairs.

[21] Migration Act 1958 (Cth) sub-s 499(2A).

[23] Migration Act 1958 (Cth) s 501(3A).

[25] Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166.

[26] [2016] FCA 1166 at [38].

[27] Siueva v Minister for Home Affairs (Migration) [2018] AATA 1079 at [21].

[28] G Documents 64, 70 (respectively).

[32] Ibid 77 (Ms Bibi's Australian passport details of birth).

[33] See, eg, BFXK v Minister for Immigration and Border Protection [2018] AATA 886 at [113].

[34] Ministerial Direction No. 65 pt C sub-cl 13(2).

[37] [2018] FCA 10.

[38] Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10 at [43]- [44].

[39] [2018] AATA 732.

[40] Fu (Migration) [2018] AATA 732 at [30] (per Member Jan Redfern).

[41] Ministerial Direction No. 65 pt C sub-cl 13.1.2(1).

[52] Tribunal Evidence R1 (Respondent's Statement of Facts, Issues and Contentions) para 24(a).

[53] See, eg, Irving v Minister of State for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 68 FCR 422 at [431]- [432].

[54] QSBL v Minister for Home Affairs (Migration) [2018] AATA 2074.

[55] See especially Tribunal Evidence A4.

[59] Ministerial Direction No. 65 pt C sub-cl 13.3(1).

[60] YNYQ v Minister for Immigration and Border Protection [2017] FCA 1466 at [76]- [77].

[61] [2016] FCA 348.

[62] Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [64].

[63] [2018] AATA 161.

[64] Mahu v Minister for Immigration and Border Protection (Migration) [2018] AATA 161 at [73].

[65] [2016] AATA 999.

[66] Mahu v Minister for Immigration and Border Protection (Migration) [2018] AATA 161 at [75]; See especially Rabino v Minister for Immigration and Border Protection (Migration) [2016] AATA 999 at [68].

[67] Mahu v Minister for Immigration and Border Protection (Migration) [2018] AATA 161 at [75].

[68] G Documents 54; Tumaialu v Minister for Immigration and Border Protection (Migration) [2016] AATA 863; Tauariki v Minister for Immigration and Citizenship [2013] AATA 475.

[69] [2013] AATA 475.

[70] Tauariki v Minister for Immigration and Citizenship [2013] AATA 475 at [123].

[71] Tauariki v Minister for Immigration and Citizenship [2013] AATA 475 at [61]- [92].

[72] [2016] AATA 863.

[73] Tumaialu v Minister for Immigration and Border Protection (Migration) [2016] AATA 863 at [226].

[74] See especially Tumaialu v Minister for Immigration and Border Protection (Migration) [2016] AATA 863 at [140], [147], [173], [203], [228].

[76] [2016] AATA 390.

[77] Do v Minister for Immigration and Border Protection (Migration) [2016] AATA 390 at [23].

[78] [2003] AATA 1336.

[79] Waits v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].

[80] [2016] AATA 316.

[81] Labi v Minister for Immigration and Border Protection (Migration) [2016] AATA 316 at [60].

[82] [2016] AATA 693.

[83] Anaki v Minister for Immigration and Border Protection (Migration) [2016] AATA 693 at [89].

[85] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].

[86] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [14].

[87] [2016] AATA 693.

[88] Anaki v Minister for Immigration and Border Protection (Migration) [2016] AATA 693 at [99].

[89] [2018] AATA 686.

[90] Mendoza v Minister for Immigration and Border Protection (Citizenship) [2018] AATA 686 at [48].

[91] XFKR v Minister for Immigration and Border Protection (Migration) [2017] AATA 2385 at [45].

[93] [2018] FCA 594.

[94] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23].

[95] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28].

[96] [2018] FCA 1013.

[97] Ministerial Direction No. 65 pt C sub-cl 14(1).

[102] G Documents 72-75 (The medical report from Dr Roger Pillemer, an Orthopaedic Surgeon, suggests that Mr Ali's condition is such that he is not likely at any stage in the future to be fit for employment), 212 (Report of Dr Robert Alder).

[104] Applicant 4264 of 2011 v Minister of Immigration and Citizenship [2011] AATA 920 at [88]. Ministerial Direction No. 41 was an earlier version of Ministerial Direction No. 65.

[105] Visa Cancellation Applicant v Minister for Immigration and Citizenship [2011] AATA 690 at [49].

[106] [2018] FCA 594.