//
[2022] AATA 792
General information, not legal advice.
Administrative Appeals Tribunal of Australia
2022-03-15
Original judgment source is linked above.
Lum and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 792 (15 March 2022)
And Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the decision under review is affirmed.
.....................................[SGD]...................................
MIGRATION - visa cancellation under subsection 501(3A) of the Migration Act 1958 (Cth) - cancellation not revoked under subsection 501CA(4) - where the applicant has a substantial criminal record - where the applicant does not pass the character test - issue: is there another reason why the visa cancellation should be revoked - Direction No. 90 considered - primary and other considerations considered - Applicant's criminal history and background considered - decision under review affirmed.
Family Law Act 1975 (Cth)
Migration Act 1958 (Cth)
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
Deng v Minister Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337
Jagroop v Minister for Immigration and Border Protection and Another [2016] FCAFC 48; (2016) 241 FCR 461
Jal v Minister for Immigration and Border Protection (Migration) [2016] AATA 789
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Nyemah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2107
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
Saleh and Minister for Immigration and Border Protection (Migration) [2017] AATA 367
Soames and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1955
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
XFKR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2385
ZFZM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1633
Department of Foreign Affairs and Trade Country Information Report Malaysia
Direction No. 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
2. On 25 March 2020 the Applicant was convicted in the Local Court of New South Wales of Sexually touch another person without consent, Goods suspected stolen in/on premises (not m/v) (three counts), _Break and enter house etc steal value (3A) The Minister must cancel a visa that has been granted to a person if:
(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) ...; 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.
13. Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the 'character test' if the person has a 'substantial criminal record'. Subsection 501(7) of the Act relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a) ...
(b) ...
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
...
14. Section 501CA of the Act applies if the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
15. Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under subsection 501(3A). Subsection 501CA(4) provides:
(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.
16. Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
17. The Minister is empowered by subsection 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. The Direction must be applied by all decision-makers, except for the Minister acting personally, such as the Minister's delegates and the Tribunal.[10]
18. On 8 March 2021, the Minister signed Direction No. 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA ('the Direction'). The Direction commenced on 15 April 2021 and revoked the previous Direction 79 on the same date.[11]
19. The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-‑citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-‑citizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
20. Paragraph 6 of the Direction provides that, informed by the principles in paragraph 5.2, a
decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
21. Paragraph 8 of the Direction identifies the following as primary considerations:
a) Protection of the Australian community from criminal or other serious conduct;
b) Whether the conduct engaged in constituted family violence;
c) The best interests of minor children in Australia; and
d) Expectations of the Australian community.
22. Paragraph 9 of the Direction identifies a non-exhaustive list of other considerations:
(a)
b) Extent of impediments if removed;
c) Impact on victims; and
d) Links to the Australian community, including:
(i) Strength, nature and duration of ties to Australia; and
(ii) Impact on Australian business interests.
23. Paragraph 7(1) provides that, when taking the relevant considerations into account, '... information and evidence from independent and authoritative sources should be given appropriate weight.'
24. Paragraph 7(2) states that '[p]rimary considerations should generally be given greater weight than the other considerations.' That does not preclude the Tribunal, however, based on the specific circumstances of each case, to give an 'other' consideration the equivalent of or greater weight than a primary consideration.[12]
25. Paragraph 7(3) states that '[o]ne or more primary considerations may outweigh other primary considerations.' However, as held in Jagroop v Minister for Immigration and Border Protection and Another:[13]:
... the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501.
26. Before the power in subsection 501CA(4) of the Act to revoke the original decision is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
27. There is no dispute that the Applicant made the representations required by paragraph 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo,[14] the Full Court of the Federal Court of Australia made the following observations in relation to subsection 501CA(4):
... there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word 'may' in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view...[15]
29. If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision should be revoked.
31. The Applicant attended high school in Australia for one year. He then moved to Sydney where he worked as a tiler. In 2015 he started his own tiling business.[18]
32. The Applicant's Nationally Coordinated Criminal History Check dated 2 September 2020 records his criminal offending in Australia.[19] These offences are as follows.
33. On 21 November 2016, the Applicant was charged by New South Wales Police (NSWPOL) with the following offences, alleged to have been committed on 20 November 2016:
34. The facts of these offences are set out in the sentencing remarks of Magistrate Breton dated 1 May 2017.[20] The Applicant was working in Canberra and received a text from BMZ stating that she wanted to leave him. On 20 November 2016, BMZ texted the Applicant stating that she wanted to visit him in Canberra, and he told her not to. BMZ then went to the city with a male friend to buy a new phone when she received a call from the Applicant asking her to see a friend at the Campsie RSL 'apparently on a rouse to pick up some property.' When BMZ arrived at this location, she was confronted by the Applicant who told her to get in his car. He then grabbed her phone, asked her for the passcode and began to look through the phone.
35. His Honour described what then occurred between the Applicant and BMZ:
There is some argument then about [the Applicant] having discovered apparently [Ms Z's] infidelity. She has an argument with him about that which he doesn't believe in terms of her explanation, at least. He then apparently attempts to call her ex-husband. I understand, I think, a person by the name of [A]. After [the Applicant] hung up he became angry at [Ms Z] he punched and slapped the victim an unknown number of times to the face, head, ear, throat region. Her left shoulder, left hand and arm region. The victim's face began to swell as a result of the punches. The victim placed her hands up to her face in an attempt to protect herself and whilst she was trying to protect herself the victim was told by [the Applicant], "I'm going to kill this baby."
He then told her she has got two options, have the baby and give it to him then go back to China as I understand it or divorce the accused and he will get rid of the baby. She got out of the car ran to Park Street and where she flagged down a car and went to Campsie Police Station immediately. They noticed the injuries including the chipped front upper tooth. Those injuries I described earlier plus the tooth, soft tissue damage on her left hand with swelling and bruising and soft tissue damage on her left side of her jaw, the actual bodily harm and I have seen photographs ... which demonstrate the injuries. He was arrested and declined it seems to say anything at that stage.[21]
36. His Honour stated that following his arrest the Applicant was granted bail.
37. The Applicant was questioned about this offence during cross-examination. He said that BMZ was having an affair and he could not accept that she was doing so when she was pregnant with his child.[22] He was 'very, very angry' and could not control his emotions. Afterwards he regretted his actions and apologised to BMZ and tried to comfort her.[23] He told the Tribunal that he did not say he would kill the baby. What he said was that he did 'not want that baby anymore.'[24] He went to the police station the next day and turned himself in and was arrested.[25] He agreed he did not admit to the offence until after he was questioned by police.[26]
38. On 21 November 2016, a police officer made an application under paragraph 25(1)(a) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) for an interim Apprehended Domestic Violence Order ('ADVO') for the protection of the complainant, BMZ. The provisional order prevented the Applicant from going within a hundred metres of her place or attempting to approach or contact BMZ. It also contained a direction for the Applicant to appear in the Burwood Local Court on 24 November 2016.
39. The Applicant disregarded the AVO and continued to attempt to contact Ms Z by phone, text and social media begging her to forgive him as it was 'an impulsive moment' and stating that he loved her.[27] He told the Tribunal that when the AVO was imposed he was 'confused' and 'not really sure' of its conditions.[28]
40. The Burwood Local Court made interim orders on 24 November 2016, 22 December 2016 and 19 January 2017. A final apprehended domestic violence order for 12 months' duration was made on 1 May 2017.
41. On 1 December 2016, the Applicant went to BMZ's home and took about $600 in cash and letters which had been sent to her by the police. The Applicant told BMZ to get into the car which she did, and he took her to a gaming place at the Campsie RSL and then drove her back home. During this time, the Applicant was arguing about money and other boyfriends, telling BMZ that whilst he was at work she was busy talking to other men and that she did not deserve to be his wife.[29]
42. The Applicant told the Tribunal that he took the money from BMZ because he had no money. At this time, he was 'in a bad mood' and he thought that he should 'just have a little bit of fun' by going gambling with BMZ because they both enjoyed this activity.[30]
43. In his sentencing remarks dated 1 May 2017, His Honour described the next sequence of events:
About 3am on Friday 2 December 2016 they are together, it seems and there is an argument again. That continue through it seems because it says that the victim did not attempt to leave the accused during that night, nor did she attempt to call police because she was too frightened that the accused would wake her up and hurt her like last time. Ultimately [the Applicant] was arrested on 4 December although it appears according to the facts she was trying again still to protect him at that stage.[31]
44. On 4 December 2016, the Applicant was charged by NSWPOL with one offence of contravening a prohibition or restriction specified in the provisional apprehended violence order, contrary to subsection 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).[32] Following his arrest, the Applicant was granted bail and released on 5 December 2016.[33]
45. The Applicant appeared in court on 22 December 2016 and was released on bail.[34]
46. On 16 January 2017, the Applicant was charged by NSWPOL with the following further offences, alleged to have been committed on 15 January 2017:
47. The Applicant was remanded in custody on 17 January 2017 as a consequence of these further criminal charges.[35]
48. The offences were committed when BMZ went to the marital home to collect some belongings and found the Applicant asleep in one of the bedrooms. He awoke and another argument ensued lasting several hours during which the Applicant demanded BMZ's mobile phone password. During this time BMZ was crying loudly. In his sentencing remarks dated 1 May 2017, Magistrate Breton detailed what then occurred:
[The Applicant] took [BMZ's] phone from her again, she continued to deny the accused access to her phone. As a result [the Applicant] grabbed the victim by the arms to stop her leaving. Put her arms behind her back and pushed her onto the couch. Apparently she felt pain as a result because he grabbed her quite firmly. She finally gave in to his requests and told her the password. Again, all because he suspected her of having an affair with someone else. As she attempted to leave, in a moment when he was doing something else, the accused tore of a sleeve for a dress in the attempt to prevent her from leaving. She ran out onto the street and stopped another vehicle and flagged it down for help.[36]
49. His Honour rejected the defence's argument that BMZ was the one who had wanted the Applicant back, and she was contacting him to apologise, stating that 'there is nothing else in the facts besides his word for that and his word at this particular point in time carries very little weight.'[37] In reply to the defence's argument that the Applicant felt humiliated by the discovery of his wife's affair, His Honour stated that 'one might think [Ms Z] was somewhat humiliated on a number of occasions by having to put up with his behaviour and flag down passers-by.' [38] In sentencing the Applicant, His Honour stated that a term of imprisonment was necessary for this offending as it was serious and, whilst it was 'not at the top end of the scale', in his view it was 'certainly not far off'.[39]
50. On the same day, the Court issued an Apprehended Violence Order (AVO) against the Applicant, listing Ms Z and anyone with whom she had a domestic relationship, as protected persons.
51. During cross-examination, the Applicant told the Tribunal that he knew he was not allowed to contact BMZ but he was 'very angry' and so he yelled at her 'Why do you do this to me?' He was worried she would report him to the police. He used violence towards BMZ because he was 'angry', 'in a panic', and could not control his emotions. Afterward he really regretted his actions.[40]
52. On 1 May 2017, the Applicant appeared in the Burwood Local Court in respect of the six criminal charges. He entered pleas of guilty to each charge, and was convicted and sentenced by Magistrate Breton as follows:
Sequence 1 -
Stalk/intimidate intend fear physical etc harm (Domestic) - T2
Sequence 2 - Assault occasioning actual bodily harm (DV) - T2
Sequence 1 -Contravene prohibition/restriction in AVO (Domestic)
Good Behaviour Bond (S9), 2 yrs' duration with programme and supervision requirements
Sequence 1 - Contravene prohibition/restriction in AVO (Domestic)
53. The Applicant appealed against the sentences imposed by the Local Court to the District Court of New South Wales.
54. On 13 June 2017, His Honour Judge Conlon SC dismissed the appeal against sentence, save that His Honour varied the sentence imposed in respect of the Assault occasioning bodily harm offence by reducing the minimum non-parole period to five months. His Honour described this as 'extend[ing] some further leniency to [the Applicant] with a view to him being released and ultimately resuming cohabitation with his wife and child.'[41]
55. The Applicant was released on a parole order on 14 June 2017.[42]
Driving offences, possession of stolen property and larceny
56. On 23 November 2017, the Applicant drove a vehicle when he was not authorised to do so.[43] He was charged by NSWPOL and found guilty of this offence on 27 March 2018, in his absence.[44] A warrant was issued for the Applicant's arrest.[45] He was ultimately sentenced to a $1,500 fine in the Sutherland Local Court on 2 May 2018 and disqualified from driving for 12 months.[46]
57. On 3 April 2018, the Applicant was charged by NSWPOL for being in possession of stolen property (on 1 April 2018) and larceny of less than or equal to $2,000 (between 24 November 2017 and 6 March 2018).[47] The Applicant was convicted of these offences in his absence in the Burwood Local Court on 12 October 2018 and 4 December 2018. Warrants were issued for his arrest and he was charged with an offence of failing to appear in court in accordance with his bail undertaking.[48]
59. On 29 July 2018, the Applicant was charged by NSWPOL with driving under the influence of illicit drugs (on 25 July 2018).[51]
60. On 10 August 2018, the Applicant was convicted at a contested hearing in the Central Local Court in respect of these offences. He was released following the hearing, however he returned to custody on separate warrants on 10 December 2018.[52] On 12 December 2018, the Local Court refused to annul the Applicant's larceny and stolen property convictions.[53]
61. On 1 February 2019 the Applicant appeared in the Burwood Local Court and was sentenced as follows:[54]
Sequence 1 - Goods in personal custody suspected being stolen (not M/V)
Sequence 2 - Larceny value (2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
108. Paragraph 8.1(2) states that in considering the need for protection of the Australian community, decision-makers should also have regard to:
a) The nature and seriousness of the non-citizen's conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(a) Nature and seriousness of the Applicant's conduct to date
109. Paragraph 8.1.1(1) sets out factors to be considered in determining the nature and seriousness of the non-citizen's criminal offending or other conduct to date. Relevant to the Applicant's conduct, the Tribunal must have regard to the following factors:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) ...
(ii) ...
(iii) ...
(iv) ...
d) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e) the cumulative effect of repeated offending;
f) ...
g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
110. The Applicant's criminal offending spans a period of seven years and comprises approximately 15 separate offences. In addition, the Applicant has a history of breaching obligations that have been imposed upon him by authorities, including AVOs, bail undertakings, community-based orders and prison regulations.
111. Having regard to the factors in paragraph 8.1.1(1) of the Direction, the Tribunal finds, for the following reasons, that the Applicant's criminal offending and other conduct to date is very serious. It involves conduct described in 8.1.1(1)(a) against multiple female victims over a number of years. The Applicant committed family violence offences against his wife, BMZ and engaged in acts of domestic abuse against his former partner, WP. He also committed the offence of sexual touching without consent offence against a female victim when she was sleeping. This latter offence represents an escalation of the Applicant's offending beyond domestic abuse to a non-consensual sexual act against a vulnerable woman. As required by paragraphs 8.1.1(1)(a)(i), 8.1.1(1)(a)(ii) and 8.1.1(1)(a)(iii) of the Direction, the Tribunal finds that the Applicant's criminal offending is very serious.
112. The Applicant's other offending includes driving offences, possession of stolen property, burglary and larceny. Whereas the Applicant's other offences are individually less serious than his family violence and sex offending, they are nevertheless serious. They demonstrate his disregard of traffic and road laws, and his lack of respect for the personal property of members of the community. In particular the Applicant's offences of driving under the influence of illicit drugs placed other road users at risk of serious harm.
113. In determining the seriousness of the Applicant's conduct, paragraph 8.1.1(1)(c) of the Direction also requires the Tribunal to consider the sentence imposed by a court in relation to offences committed by him (other than those relating to his violent and sexual crimes against women and acts of family violence, which must be viewed very seriously regardless of the sentence imposed). The custodial sentences imposed on the Applicant by the courts noted in paragraphs 65 and 66 above, are an objective indicator of the seriousness of his criminal offending. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved: Jal v Minister for Immigration and Border Protection (Migration);[114] PNLB and Minister for Immigration and Border Protection (Migration)[115]and Saleh and Minister for Immigration and Border Protection (Migration).[116]
114. In relation to the factors in paragraphs 8.1.1(1)(d) and 8.1.1(1)(e), the Applicant's violent offending, has been frequent and re-occurring from November 2016 until he was remanded in custody in July 2019. The Applicant assaulted his wife, BMZ on at least two occasions, including when she was pregnant with their son, TL. In addition, he committed the offence of sexually touching a person without consent and he was made subject to an ADVO in relation to another female partner, WP. This conduct is very serious, and the cumulative effect of the Applicant's violent offending raises significant concerns for the safety of the community if the cancellation of his visa were to be revoked.
115. On the basis of the evidence before it, and for the stated reasons, the Tribunal finds that the Applicant's criminal offending is very serious in nature, and this weighs strongly against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.
(b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harms increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
117. Paragraph 8.1.2(2) of the Direction provides that in assessing the risk that may be posed to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
- information and evidence on the risk of the non-citizen re-offending; and
- evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
118. Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to reoffend in accordance with paragraph 8.1.2(2)(a) of the Direction, the Tribunal finds that the harm to individuals, including those who are in a close relationship with the Applicant, should he engage in similar conduct could include extremely serious physical or psychological injury. The Applicant has demonstrated a propensity to act violently with disregard for the harm he causes to his victims. The Applicant's criminal offending and other serious conduct has included actual and threatened physical violence against his former partners and a non-consensual sexual act committed against a vulnerable woman. If his previous criminal behaviour were to be repeated, this would pose a significant risk to members of the community, particularly women.
119. The Applicant's criminal history reveals a persistent disregard for the law and persistent criminal offending. He has repeatedly engaged in acts of family violence against his female partners. The Tribunal has previously recognised the physical and psychological harm that is caused by violent behaviour in a domestic context. In XFKR and Minister for Immigration and Border Protection (Migration) ('XFKR'),[117] the Tribunal observed at [45]:
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.
120. Were the Applicant to again to engage in driving and traffic offences, this would place the safety of other road users at risk of serious harm including serious personal injury or death and economic loss. If the Applicant were to continue to commit property offences of the kind he has committed to date, it would cause distress and loss to his victims. In addition to the potential physical and psychological harm to the Applicant's victims, there is the significant financial cost to the community associated with emergency services and law enforcement activities of any future offending by the Applicant. For these reasons, the Tribunal finds that the nature of the harm to individuals and the community should the Applicant continue to offend is very serious.
121. The Applicant was assessed by a psychologist at the John Morony Correctional Centre in March 2020 who found that he was within the 'Above Average Risk range relative to other sexual offenders.'[118] The psychologist noted that in terms of risk management, the Applicant would need to work on his 'impulsivity/self-control, problem solving and possible sexual preoccupation and regulation as well as possible intimacy/social skills deficits', and that he 'may also benefit from participating in interventions aimed at addressing his drug use.'[119] The psychologist also was of the view that the Applicant would benefit from a comprehensive psychological assessment.[120]
122. A NSW Community Corrections Officer at the Windsor Community Corrections Office prepared a Sentencing Assessment Report in relation to the Applicant dated 24 March 2020. The Officer assessed the Applicant as being at a 'Medium-High risk of reoffending' according to the Level of Service Inventory - Revised (LSI-R).[121] The report considered the Applicant's personal circumstances and factors related to offending. It noted that the Applicant has a history of anti-social behaviour, mixed awareness about his criminal actions, appeared frequently to minimise his culpability, had a history of poly substance abuse, suffered from financial strain, and had responded to prior supervision.[122]
(b) The likelihood of the non-citizen engaging in further criminal or other serious conduct
123. Having regard to the likelihood of the Applicant engaging in further criminal or other serious conduct in accordance with paragraph 8.1.2(2)(b) of the Direction, the Tribunal notes that the Applicant's evidence is that he has concluded that it is 'not worth it' to have an argument with women and he will not engage in similar behaviour in the future. He claims that he has undertaken programs which have taught him how to control his anger and other emotions and he has learned that family violence is 'no good'. He wishes to be a 'good father' and to take steps to regain custody of TL and AP. The Respondent submits that there is little evidence of the Applicant taking steps towards rehabilitation, and that he appears to have limited insight into his offending, minimising his conduct and blaming his victims.
124. The Applicant was assessed by a psychologist at the John Morony Correctional Centre in March 2020 who found that he was within the 'Above Average Risk range relative to other sexual offenders.'[123] The psychologist noted that in terms of risk management, the Applicant would need to work on his 'impulsivity/self-control, problem solving and possible sexual preoccupation and regulation as well as possible intimacy/social skills deficits', and that he 'may also benefit from participating in interventions aimed at addressing his drug use.'[124] The psychologist also was of the view that the Applicant would benefit from a comprehensive psychological assessment.[125]
125. A NSW Community Corrections Officer at the Windsor Community Corrections Office prepared a Sentencing Assessment Report in relation to the Applicant in March 2020. The officer assessed the Applicant as being at a 'Medium-High risk of reoffending' according to the Level of Service Inventory - Revised (LSI-R).[126] The report considered the Applicant's personal circumstances and factors related to offending. It noted that the Applicant has a history of anti-social behaviour, mixed awareness about his criminal actions, appeared frequently to minimise his culpability, had a history of poly substance abuse, suffered from financial strain, and had responded to prior supervision.[127]
126. These reports appear to be the only formal assessments available in relation to the Applicant's risk of reoffending and were relied upon by the court when he was sentenced in March 2020. The Tribunal has given these reports appropriate weight in considering the likelihood of the Applicant engaging in further criminal or other serious conduct.
127. The Applicant has a history of repeat offending over a sustained period, and despite the various opportunities afforded to him, including non-custodial sentences, he continued to commit further offences. After being sentenced to terms of imprisonment for six offences on 1 May 2017 and having his sentence in respect of the Assault occasioning bodily harm varied on appeal to provide further leniency to allow him to resume cohabitation with BMZ and SL, the Applicant proceeded to re-offend following his release. He committed further serious offences, resulting in his second custodial sentence of an aggregate of two years imprisonment for five offences including the sexual touching offence. This indicates that even the serving of a custodial offence did not effectively deter the Applicant from engaging in criminal conduct.
128. The Applicant breached a number of orders, including the AVO for the protection of BMZ, and he was on conditional liberty by virtue of being on bail and under a community correction order when he committed the sexual touching offence. The fact that the Applicant breached these obligations in circumstances where he had been on notice that failure to comply with such orders would result in further consequences, demonstrates his lack of respect for the law and the legal system, and casts considerable doubt on his ability to comply with the law in the future.
129. While the Applicant claims he will not re-offend, he has expressed only limited remorse for his criminal offending to date, particularly his very serious crimes against his female victims. He has pointed to BMZ's unfaithfulness and WP's drug-taking, drug-dealing and her mental health condition as reasons why he lost control of his emotions leading to him assaulting them. In relation to the victim of the sexual touching offence, the Applicant relies on what he claims is a previous sexual encounter between them as the basis for him committing against her a non-consensual sexual act.
130. The Sentencing Assessment Report dated 24 March 2020 records that the Applicant 'appeared to possess mixed awareness about his criminal actions' and stated that the victim of the sexual touching offence had 'shown prior intimacy and that he felt partially entitled to sexual activity'.[128] He did however make statements acknowledging that his sexual actions were wrong due to his inability to gain the victim's consent. He recognised that his offending actions 'caused his victim to feel intense distress and fear.'[129]
131. The Applicant told the Corrections Officer that he did not know his license was suspended and that some of the property listed in his theft charges was not stolen. The Officer noted that the Applicant 'appeared to frequently minimise his culpability in all of his offences and placed blame on others or his drug and alcohol use.'[130] In relation to his break and enter offence, the police facts record that the Applicant left a note to apologise to his victims during the commission of the offence, indicating his awareness that his actions had negative impacts. He also recognised that his driving offences were dangerous due to a lack of control which may have endangered himself and others.
132. The Applicant's lack of insight into his offending indicates that he does not realise the seriousness and impact of his criminal behaviour, which undermines his claims he will not reoffend. His ongoing attempts to minimise his culpability and his belief that his conduct was somehow justified, show that the Applicant is not genuinely remorseful, nor that he has taken full responsibility for his offending. The Tribunal therefore cannot be satisfied that the Applicant has reformed and is unlikely to re-offend in the future.
133. The Sentencing Assessment Report notes that the Applicant's offending is at least partly related to his substance abuse.[131] The Applicant told the Corrections Officer that he was under the influence of illicit drugs during most of his offending. He claimed to have attended Narcotics Anonymous (NA) in custody to address his substance use, however this could not be verified by CSNSW records.[132] Since entering gaol the Applicant has been found guilty of two correctional centre offences relating to the preparation and manufacture of alcohol. It appears therefore that the Applicant continues to use alcohol, and it remains unclear whether he would continue to use illicit drugs if he were released into the community, where they are readily available.
134. Although the Applicant completed a Corrective Services Domestic Abuse course in October 2019 and January 2020, the Salvation Army Positive Lifestyle Program in December 2019, and a first aid course in October 2019 he has not undertaken any additional courses during the last two years including since he has been in immigration detention. The limited evidence that the Applicant remains committed to taking ongoing steps to address the behavioural and substance related causes of his offending is such that it cannot be said that he will not engage in similar criminal behaviour if he were to re-enter the community.
135. On the basis of the evidence before it and taking into account available information and evidence on the risk of the Applicant re-offending and his rehabilitation, the Tribunal finds that the likelihood of the Applicant engaging in further criminal or other serious conduct is medium to high. In the context of the potential serious harm to the Applicant's victims should he engage in the same or similar criminal conduct in the future, the Tribunal finds this risk to be unacceptable.
136. For the reasons above and applying the guidance in paragraphs 8.1.1 and 8.1.2 of the Direction, Primary Consideration 1 weighs on balance against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 2 - Family violence committed by the non-citizen
137. This Primary Consideration is relevant in the Applicant's circumstances as he has been convicted of offences that involve family violence.
138. Family violence is referred to in the Principle enunciated at paragraph 5.2(5) of the Direction as conduct which 'is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.' Family violence is also expressly referred to in Primary Consideration 1 of the Protection of the Australian community as conduct which is viewed very seriously by the Australian Government and the Australian community. It is also expressly referred to in Primary Consideration 4 of the Expectations of the Australian community as conduct of such seriousness that the Australian community would expect the Australian Government to refuse entry or cancel the visas of non-citizens.[133]
139. The Tribunal has consistently found that family violence is abhorrent. It has been described as 'a corrosive blight on the Australian community',[134] 'plainly abhorrent'[135] and an offence which 'warps and destroys the healthy bonds that should exist between partners and within families.'[136] As the Tribunal observed in XFKR, family violence 'normalises ... 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.'[137]
140. Paragraph 4(1) of the Direction defines 'family violence' as 'violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful'. It contains a non-exhaustive list of examples of behaviour that may constitute family violence which includes:[138]
a) an assault; or
b) a sexual assault or other sexually abusive behaviour; or
c) stalking; or
d) repeated derogatory taunts; or
e) intentionally damaging or destroying property; or
f) intentionally causing death or injury to an animal; or
g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
j) unlawfully depriving the family member, or any member of the family member's family, or his or her liberty.
141. Paragraph 8.2(1) of the Direction provides that the Australian Government has 'serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia', and that '[t]he Government's concerns in this regard are proportionate to the seriousness of the family violence engaged by the non-citizen.'
142. Paragraph 8.2(2) provides that this consideration is relevant in circumstances where a non-citizen has been found guilty of an offence involving family violence, or where there is information from independent and authoritative sources indicating that the non-citizen has been involved in the perpetration of family violence (where the non-citizen has been afforded procedural fairness).
143. The Direction does not define a 'family member'. However, subsection 4(1AB) of the Family Law Act 1975 (Cth), relevantly provides that a person is a member of the family of another person if, relevantly:
(d) the first person is or has been married to, or in a de facto relationship with, the second person; or
(e) the first person is or has been a relative of the second person ...; or
(h) the first person ordinarily or regularly resides or resided with the second person, or with another member of the family of the second person; or
(i) the first person is or has been a member of the family of a child of the second person.
144. The Applicant's convictions for Assault occasioning bodily harm, Stalking and Criminal damage constitute acts of family violence for the purposes of the Direction. The conduct resulting in the AVO for the protection of his wife BMZ, which the Applicant breached thereby constituting an offence, also is family violence under the Direction. Whilst there is less evidence before the Tribunal about the conduct by the Applicant against WP, it is clear that provisional, interim and final ADVOs were issued against the Applicant. The Applicant was not married to WP at the time of the domestic violence incidents in mid-2019 which resulted in the ADVOs, and it is unclear whether they were in a de facto relationship at the time. However, their son, TL, was born in July 2019, and therefore the Applicant was a family member of WP under paragraph (i) above at the relevant times. This conduct is also family violence for the purposes of the Direction.
145. The sexual touching offence does not constitute family violence for the purposes of the Direction because there is not the necessary nexus of dependence between the Applicant and the victim.[139] The Applicant's evidence that there had been some intimacy between the two of them does not alter this finding.[140] There was also no evidence that the Applicant lived at the address.[141]
146. In considering the seriousness of the family violence engaged in by the non-citizen, paragraph 8.2(3) of the Direction states that decision-makers must consider the following factors:
a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
- the extent to which the person accepts responsibility for their family violence related conduct;
- the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
- efforts to address factors which contributed to their conduct;
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non-citizen's migration status, should the non-citizen engage in further acts of family violence.
147. Having regard to the frequency of the Applicant's family violence offending in accordance with paragraph 8.2(3)(a) of the Direction, the evidence is that the Applicant has been involved in a number of incidents and convicted of offences involving family violence. His criminal record includes convictions on 1 May 2017 for Assault occasioning actual bodily harm (DV), Common assault (DV), Stalk/intimidate intend fear physical etc, and Destroy or damage property (DV) being offences committed against his wife, BMZ. In addition, as a result of his family violence offending, the Applicant was made subject to AVOs in relation to BMZ and he breached the orders by reoffending. The Applicant's offence of Common assault (DV) was committed whilst he was on bail for his offence of Assault occasioning actual bodily harm (DV) and subject to an AVO. These family violence offences committed against BMZ when she was in the early stages of her pregnancy with their son, SL. These convictions support a finding of repeated criminal conduct of a violent nature by the Applicant and the increase of seriousness is reflected in the substantial sentences of imprisonment imposed on him by the Court on 1 May 2017. Guided by paragraph 8.2(3)(b) of the Direction, the Tribunal finds that the cumulative effect of the Applicant's family violence offending is very serious as it caused fear and physical injuries to the victim.
148. In relation to the factors in paragraph 8.2(3)(c) of the Direction, the evidence before the Tribunal is that the Applicant continues to downplay his violent behaviour and minimise his personal culpability by blaming external factors for his offending. This indicates that he has not fully accepted responsibility for his own actions and continues to engage in victim-blaming. He has provided little indication that he appreciates the impact of his behaviour on TL and AP who witnessed the Applicant's family violence against WP.
149. The Applicant provided evidence of his completion of a Domestic Abuse courses in October 2019 and January 2020. Whereas the completion of these courses is evidence that the Applicant took some steps towards appreciating the seriousness of family violence, his ongoing refusal to accept personal culpability for his offending is such the Tribunal cannot be satisfied that this training has contributed in any significant way towards his rehabilitation. Nor can it be satisfied that if the Applicant were to encounter problems in his relationship with another partner in the future, he will not engage in further acts of family violence.
150. On the basis of the evidence before it and applying the guidance in paragraph 8.2 of the Direction, the Tribunal finds that the Applicant's offences involving family violence are very serious. Accordingly, Primary Consideration 2 weighs strongly against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 3 - The best interests of minor children in Australia affected by the decision
151. Paragraph 8.3(1) of the Direction requires decision-makers to determine whether revocation is in the best interests of the child. This consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made: paragraph 8.3(2). If there is more than one child affected, the Tribunal must consider the interests of each child individually to the extent that their interests may differ: paragraph 8.3(3).
152. In considering the best interests of the child, paragraph 8.3(4) relevantly requires the following factors be considered:
a) the nature and the duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or the non-citizen's ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) ...
153. The relevant minor children are the Applicant's children who have not yet turned 18 years of age, namely his son, SL aged four years, his son TL aged two years and his step-daughter, AP aged four years.
154. The Applicant's family violence offences were committed against SL's mother, BMZ when she was pregnant with him. The Applicant's evidence is that he has not had contact with BMZ or SL since November 2021. TL and AP are WP's children. WP made allegations of domestic violence in the presence of her children, and the Applicant is the subject of an AVO in respect of them until July 2022.[142] The Applicant claims that TL and AP are in foster care and that he has telephone contact with them.[143]
155. The Applicant states that he loves his children very much and that he has always played a parental role in their lives providing them with emotional, financial and practical support. He states that being detained in immigration detention is causing his children to suffer as he cannot provide them with such support. He claims that their suffering would increase if he was removed from Australia, as it would prevent him from resuming his loving relationship with them.
156. The Tribunal has considered the interests of SL, TL and AP individually and cumulatively as follows.
157. Having regard to the factors in paragraph 8.3(4)(a), the evidence before the Tribunal is that the Applicant and BMZ continue to be married but he has not had contact with BMZ or SL since November 2021. Until April 2018 there was an AVO which prohibited the Applicant from contacting BMZ and SL. SL was born when the Applicant was in gaoland, following his release in June 2017, he had limited face to face contact with SL although they would talk once or twice a week by video conference. The Applicant was taken into custody in July 2019. There has been no in-person contact between him and SL in the almost three years which have followed. There is no evidence to suggest that the Applicant has been involved in SL's day-to-day life, although he did provide some financial support for him when he was able to do so. Whereas the Applicant clearly cares deeply for SL his son, his contribution to his upbringing is not significant enough for it to be described as co-parenting, particularly since November 2021 when he lost all contact with him. Accordingly, the Tribunal finds that the nature and duration of the Applicant's relationship with SL is relatively limited.
158. In relation to the factors in paragraph 8.3(4)(b) and 8.3(4)(c) the evidence is that the Applicant has no contact with SL and there is little potential for him to play a positive role in his life if he were to re-enter the community. Whilst there is no evidence to suggest that the Applicant's past conduct has had any direct impact on SL, if the Applicant were to reoffend in the future this may have a negative impact on him. This impact will be mitigated if BMZ and SL have indeed returned to China.
159. Having regard to the factors in paragraph 8.3(4)(d), 8.3(4)(e) and 8.3(4)(f), the evidence is that SL has been in the primary care of his mother since at least July 2019. If the Applicant is removed from Australia, the possibility that he would be able to have physical contact with SL would be extremely limited if not non-existent. However, the Applicant has not been physically present in SL's life since he was a young child, and their relationship has largely been conducted by regular phone calls, which can continue if he is removed from Australia. There is no evidence before the Tribunal about SL's views about the impact on him of his father being removed from Australia, nor evidence of him having been abused, neglected or experiencing trauma as a result of the Applicant's conduct.
160. On the basis of the evidence before it, the Tribunal finds that it is in SL's best interests for the Mandatory Visa Cancellation Decision to be revoked. However, as the Applicant has lost all contact with SL and he may have returned to China with BMZ, the Tribunal has attributed less weight to SL's interests than had he continued to have regular communication with the Applicant.
161. The evidence before the Tribunal is that TL is currently in foster care. Having regard to the factors in paragraph 8.3(4)(a), the evidence before the Tribunal is that the Applicant has not resided with TL since his incarceration in July 2019 at which time TL had just been born. The Applicant has therefore been physically absent for most of TL's life. This long period of absence has inevitably limited the Applicant from being able to establish a close and meaningful relationship with TL. The contact TL currently has with his father is by phone and is facilitated by WP. There is no evidence to suggest that the Applicant has been involved in TL's day-to-day life since he has been incarcerated or that he has provided him with any financial support. Whereas the Applicant clearly cares for TL, his contribution to his son's upbringing to date has been minimal. Accordingly, the Tribunal finds that the nature and duration of the Applicant's relationship with TL is very limited.
162. In relation to the factors in paragraph 8.3(4)(b) of the Direction, the evidence is that there is limited potential for the Applicant to play a positive role in TL's life. Although he wishes to take steps to regain custody of TL, it is unclear whether this would be granted by the Children's Court. Accordingly, there is doubt as to whether the Applicant will be able to play a positive role in TL's life in the future.
163. Having regard to the factors in paragraph 8.3(4)(c) and 8.3(4)(g) of the Direction, the evidence is that TL was present when the Applicant committed family violence offences against his mother, WP. Any future criminal offending by the Applicant, particularly domestic violence offending towards his mother, would have a negative psychological if not physical impact on TL. On the basis of this evidence, the Tribunal finds that any violent acts the Applicant may perpetrate against women in his presence in the future would not be in TL's best interest to witness.
164. Having regard to the factors in paragraph 8.3(4)(d) of the Direction, if the Applicant were removed from Australia this would almost certainly end any possibility of physical contact between him and TL for the foreseeable future. However, given the Applicant's limited communication with TL due to him being in foster care, the fact that he has not been present for most of TL's life, and that he would be able to maintain communication with him via electronic means, the impact of the Applicant's removal from Australia on TL would be relatively limited.
165. In relation to the factors in paragraph 8.3(4)(d), 8.3(4)(e) and 8.3(4)(f), the evidence is that TL has been in the primary care of his mother and a foster carer since he was born. There is no evidence before the Tribunal about TL's views about the impact on his of her father being removed from Australia, nor evidence of him having been abused or neglected by the Applicant.
166. On the basis of the evidence before it, the Tribunal finds that, on balance, it is in TL's best interests for the Mandatory Visa Cancellation Decision to be revoked.
167. The evidence before the Tribunal is that AP is currently in foster care. Having regard to the factors in paragraph 8.3(4)(a), the evidence before the Tribunal is that the Applicant has not resided with AP since his incarceration in July 2019 at which time AP was aged two years. The Applicant has therefore been physically absent for a considerable amount of AP's life. This long period of absence has inevitably limited the Applicant from being able to establish a close and meaningful relationship with AP. The contact AP currently has with the Applicant is by phone and is facilitated by WP. There is no evidence to suggest that the Applicant has been involved in AP's day-to-day life since he has been incarcerated. Whereas the Applicant's evidence is that AP considers him to be her father, his contribution to her upbringing to date has not been significant. Accordingly, the Tribunal finds that the nature and duration of the Applicant's relationship with AP is limited.
168. In relation to the factors in paragraph 8.3(4)(b) of the Direction, the evidence is that there is limited potential for the Applicant to play a positive role in AP's life. Although he wishes to take steps to gain custody of AP so that she and TL are not separated, it is unclear whether this would be granted by the Children's Court. Accordingly, there is doubt as to whether the Applicant will be able to play a positive role in AP's life in the future.
169. Having regard to the factors in paragraph 8.3(4)(c) and 8.3(4)(g) of the Direction, the evidence is that AP was present when the Applicant committed family violence offences against her mother, WP. Any future criminal offending by the Applicant, particularly domestic violence offending towards her mother, would have a negative psychological if not physical impact on AP. The Tribunal finds that any violent acts the Applicant may perpetrate against women in his presence in the future would not be in AP's best interest to witness.
170. Having regard to the factors in paragraph 8.3(4)(d) of the Direction, if the Applicant were removed from Australia this would almost certainly end any possibility of physical contact between him and AP for the foreseeable future. However, given the Applicant's limited communication with AP due to her being in foster care, the fact that he has not been present for most of her life, and that he would be able to maintain communication with her via electronic means, the impact of the Applicant's removal from Australia on AP would be relatively limited.
171. In relation to the factors in paragraph 8.3(4)(d), 8.3(4)(e) and 8.3(4)(f), the evidence is that TL has been in the primary care of her mother and a foster carer since July 2019. There is no evidence before the Tribunal about AP's views in relation to the impact on her of the Applicant being removed from Australia. Nor is there evidence of AP having been abused or neglected by the Applicant, however she was witness to the family violence committed by the Applicant against WP in July 2019.
172. On the basis of the evidence before it, the Tribunal finds that, on balance, it is in AP's best interests for the Mandatory Visa Cancellation Decision to be revoked.
173. In summary, applying the guidance in paragraph 8.3(4) of the Direction, the Tribunal finds that Primary Consideration 3 weighs marginally in favour of revocation of the Mandatory Visa Cancellation Decision as it is in the best interests of SL, TL and AP (individually and cumulatively) for the Applicant to be permitted to remain in Australia.
Primary Consideration 4 - The expectations of the Australian community
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) ...;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature ...;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; ...
(e) ...
(f) ...
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
175. The Full Court of the Federal Court considered paragraph 11.3(1) of Direction 65, which is analogous to paragraph 8.4 of the Direction, in FYBR v Minister for Home Affairs ('FYBR').[144] The majority (Charlesworth and Stewart JJ) concluded as follows:
...[Paragraph] 11.3 contains a statement of the government's views as to the expectations of the Australian community... [which operates] as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[145]
[I]t is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant's circumstances or evidence about those expectations.[146]
[However] ... [t]he question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[147]
... [I]t will be necessary in every case to assess the circumstances particular to the visa applicant in question in order to reach an evaluative assessment of "appropriateness".[148]
176. The effect of paragraph 8.4 is that it imputes to the Australian community the expectation that non-citizens who have permission to remain in Australia will obey Australian laws. The question to be addressed does not involve an inquiry into what the Australian community does or does not expect, because that is normatively expressed in the terms of the consideration: paragraph 8.4(4). Rather, the relevant inquiry is 'whether it is appropriate to give more or less weight to a deemed community expectation' of non-revocation of a mandatory visa cancellation 'that might otherwise arise simply because of the nature of the non-citizen's character concerns or offences.'[149] As a normative expression, this consideration indicates the likelihood that community expectation will in most cases lead to non-revocation, without dictating an inflexible conclusion. The question for a decision-maker is the weight to be attached to this consideration.
177. Having regard to the expectations of the Australian community as stated in paragraph 8.4 of the Direction, the Applicant has breached numerous Australian laws and has been convicted of multiple offences in Australia, including a number of very serious offences. The Applicant's offences and other conduct include family violence against his wife and partner which, as recognised by paragraphs 8.4(2)(a) and (c) of the Direction, should generally result in the cancellation of the non-citizen's visa. Accordingly, under paragraph 8.4(1) of the Direction the Australian community would have an expectation that the Applicant's visa should remain cancelled due to his violent and serious offending.
178. The Applicant arrived in Australia at the age of 17 years and is now aged 26 years. Having regard to the Principles in sub-paragraph 5.2(4) of the Direction, particularly the length of time the Applicant has resided in Australia, the Australian community would likely afford some degree of tolerance for the Applicant's criminal behaviour as he has lived in Australia for almost a decade. The Tribunal finds that the length of time the Applicant has been living in Australia is a factor that supports a finding that there is a higher level of tolerance by the Australian community for his criminal conduct than there would be for a non-citizen who has not lived in the community for an extended period.
179. The Principles in sub-paragraph 5.2(5) of the Direction recognise that the inherent nature of certain conduct is so serious that even strong countervailing considerations may be insufficient to justify revoking a mandatory visa cancellation, even if the non-citizen does not pose a measurable risk of causing physical harm to members of the Australian community. Family violence is expressly recognised in this sub-paragraph as this type of conduct. This supports a finding that this Primary Consideration weighs heavily against revocation of the cancellation decision.
180. Having had regard to the Government's views in relation to the expectations of the Australian community and giving them appropriate weight, and taking into account the nature, seriousness and impact of the Applicant's criminal offending, and the duration of his residency in Australia, the Tribunal finds that Primary Consideration 4 weighs strongly against revocation of the Mandatory Visa Cancellation Decision.
181. While the Primary considerations carry particular weight, the Direction acknowledges at paragraph 9 that 'other considerations' must be taken into account by the decision-maker where relevant. Paragraph 7(2) states that '[p]rimary considerations should generally be given greater weight than the other considerations.'
182. The Tribunal notes that these considerations are 'other' considerations, as opposed to 'secondary' considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection:[150]
... Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including nonrefoulement obligations). 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.
183. The 'other' considerations relevant to the Applicant's circumstances are considered in the following paragraphs.
184. Paragraph 9.1 of the Direction relevantly provides:
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
(2) In making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(3) However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
(4) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
(5) International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
(6) It may not be possible at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.
(7) Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non-citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.
(8) If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international non refoulement obligations.
185. In his request for revocation, the Applicant stated his fears and concerns if he were required to return to Malaysia:[151]
2. Huge emotional hardship (i.e. missing my two children in Australia).
186. These matters do not engage Australia's non-refoulement obligations under the Migration Act as they do not indicate that the Applicant has a well-founded fear of persecution for a Convention reason nor that he faces a real risk of serious harm that would entitle him to complementary protection.
187. The Tribunal has had regard to the Department of Foreign Affairs and Trade (DFAT) Country Information Report Malaysia dated 29 June 2021, particularly the section relating to the economy and employment.[152] This supports the Tribunal's finding that the Applicant does not engage Australia's non-refoulement obligations.
Extent of impediments if removed from Australia
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
189. Having regard to the factors in paragraph 9.2(1)(a), the evidence before the Tribunal is that the Applicant is 26 years of age and is generally in good health. He has a history of drug abuse, including methamphetamine.
190. Guided by paragraph 9.2(1)(b) of the Direction, the evidence before the Tribunal is that the Applicant resided in Malaysia until the age of 17 years and he has made a number of return trips to his home country in 2014, 2015 and 2016. He is familiar with the language and culture and there are no substantial language or cultural factors that would impede his re-settlement in Malaysia.
191. Having regard to paragraph 9.2(1)(c) of the Direction, the Applicant's evidence is that if he were to be returned to Malaysia, he would have no job, no place to stay and would have a hard life due to the country's poor economy. The Applicant also has expressed concern that his removal would result in physical separation from his children and deny him the opportunity to reconnect with his wife and 'save the marriage', which would cause him 'huge emotional hardship'.[153]
192. The Tribunal is satisfied that the Applicant will have access to health services, medical treatment and welfare services in Malaysia similar to those available to other Malaysian citizens,[154] although these services will be a lower standard and more limited than those available to him in Australia. The Tribunal accepts that the Applicant will experience some difficulties in re-establishing himself in Malaysia, including finding accommodation and suitable employment. However, these impediments are not insurmountable. The Applicant's employment history in Australia includes working as a waiter, cleaner, and salesperson. He also worked as a tiler in his own business from 2013 to 2019. The Applicant therefore has skills and experience that are transferrable and should permit him to find work in Malaysia. Accordingly, the Tribunal is satisfied that the Applicant has the capacity to support himself and would be able to establish himself and maintain basic living standards in the context of what is generally available to other citizens of Malaysia.
193. The Tribunal accepts that the Applicant will experience significant emotional hardship upon return to Malaysia due to the physical separation from his two sons and step-daughter, his mother and brother, and the familial and social network he has established during his residency in Australia for almost a decade. The evidence before the Tribunal is that the Applicant's father and members of his extended family, including his grandparents, reside in Malaysia. These family members should be able to provide the Applicant with a degree of emotional and practical support as he settles back into life in his home country.
194. On the basis of the evidence before it and guided by the factors in paragraph 9.2 of the Direction, the Tribunal finds that this other consideration weighs marginally in favour of the revocation of the Mandatory Visa Cancellation Decision.
(1) Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
196. Whilst the evidence is that the victims of the Applicant's offending have been impacted by the offending, there is no information available as to how non-revocation of the Mandatory Visa Cancellation Decision would affect them. The Tribunal finds that this other consideration is of neutral impact in assessing the impact on the Applicant's victims of his family violence offending of a decision to revoke the Mandatory Visa Cancellation Decision.
197. Paragraph 9.4 of the Direction requires decision-makers to have regard to paragraphs 9.4.1 to 9.4.2 below.
Strength, nature and duration of ties to Australia
198. Paragraph 9.4.1 requires consideration of the strength, nature and duration of the Applicant's family and social ties to Australia:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
199. Having regard to paragraph 9.4.1(2)(a) of the Direction, the evidence before the Tribunal is that the Applicant has resided in Australia since November 2012 having arrived in Australia at the age of 17 years. He had three subsequent brief departures in 2014, 2015, and 2016, and his most recent arrival was on 5 May 2016.[155] He attended two secondary schools in Australia for a period totalling approximately 15 months.[156] His employment history in Australia includes working as a waiter, cleaner, and salesperson, in addition to establishing his own tiling business which operated from 2013 to 2019. He contributed to the Australian community through his active participation in Buddhist activities at the Fo Guang Shan Nan Tien Temple.[157]
200. In relation to the factors in paragraph 9.4.1(1) and 9.4(2)(b) of the Direction, the Applicant has immediate family members in Australia, being his mother and his brother. He states that he has a very close and loving relationship with his mother and that she would suffer emotional hardship if he was removed from Australia. The Applicant has contact with his former partner WP, who is the mother of TL and AP. She contacts him twice a week to enable him to speak to AP via video call when she visits her daughter in foster care. The Applicant's evidence is that he was providing financial support for his son and step-daughter prior to his incarceration. The Applicant has lost contact with his wife, BMZ and son, SL. The Applicant has other ties to Australia, being an aunt, two nieces/nephews and one cousin in Australia. He submits that he has a close relationship with his extended family members..
201. Notwithstanding the absence of representations from the Applicant's immediate family members, the Tribunal has considered the impact of non-revocation upon his immediate family in Australia and finds that they would experience emotional, practical, and financial hardship. The Applicant's son, TL and step-daughter, AP would experience emotional hardship if he were removed from Australia. If the Applicant provided financial support for WP, she may experience some financial hardship raising the two children as a sole parent. The Applicant's mother and brother and extended family members would likely experience emotional distress if the Applicant were returned to Malaysia. As the Applicant is no longer in contact with BMZ and SL, the Tribunal finds that the impact on them of his removal will not be significant. It also accepts that the Applicant's friends and/or community members in Australia will be upset or disappointed by a non-revocation decision.
202. As the Applicant's began offending in 2016, being just four years after his arrival in Australia, the Tribunal has in accordance with paragraph 9.4.1(2)(a)(ii) and 9.4.1(2)(a)(ii) of the Direction given less weight to his ties to Australia.
203. On the basis of the evidence before it, the Tribunal is satisfied that Applicant's family members, friends and other community members who are Australian citizens or have a permanent right to remain in Australia, would be negatively impacted if the Applicant's visa is not reinstated, and that this consideration weighs in favour of revocation of the Mandatory Visa Cancellation Decision.
204. The Applicant does not claim that any Australian business interests would be affected by his removal to Malaysia. The Applicant's employment history has not been such that his removal from Australia would mean that the successful completion of a major project or the delivery of an important service in Australia would be compromised. Accordingly, the Tribunal has given the factors in paragraph 9.4.2(3) no weight.
205. On the basis of the evidence before it, and having regard to the factors in paragraph 9.4, particularly the length of time the Applicant has resided in Australia, his contributions to the community, as well as the strength and nature of the Applicant's family and social ties in Australia, the Tribunal finds that this consideration weighs marginally in favour of revocation of the Mandatory Visa Cancellation Decision.
206. In summary, the Tribunal finds that Primary Considerations 1 and 2 weigh strongly against revocation of the Mandatory Visa Cancellation Decision. The nature and seriousness of the Applicant's criminal offending is very serious, particularly as it has largely involved family violence offences against his wife and former partner in a family violence context, and a non-consensual sexual act against a vulnerable victim. The medium to high risk of him committing future criminal offences coupled with the nature and seriousness of the harm this would cause to his future victims is such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.
207. Primary Consideration 3 weighs in favour of revocation of the Mandatory Visa Cancellation Decision. It is in the best interests of the Applicant's two sons and his step-daughter for him to remain in Australia. Primary Consideration 4 weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that Applicant's serious and violent offending should cause him to forfeit the privilege of remaining in Australia, and this is not outweighed by his nine-year residence in Australia and his employment contributions.
208. In regard to the relevant Other Considerations, only his links to the Australian community weigh in favour of revocation of the Mandatory Visa Cancellation Decision.
209. The Tribunal is not satisfied that there is 'another reason' why the Mandatory Visa Cancellation Decision should be revoked, and accordingly the Reviewable Decision to refuse to revoke the Mandatory Visa Cancellation Decision must be affirmed.
I certify that the preceding 209 (two hundred and nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk
...................................[SGD].....................................
[10] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O'Callaghan and Jackson JJ).
[12] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR 545, [23]; [28] (Colvin J).
[15] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
[16] Transcript of proceedings, 1 March 2022, 7 - 8.
[17] Transcript of proceedings, 1 March 2022, 8.
[18] Transcript of proceedings, 1 March 2022, 9.
[20] Exhibit 6, G9, 113-114 Transcript of the sentencing hearing (including the sentencing remarks of Magistrate Breton) in the Local Court of New South Wales in R v Wai Lhun Lum (2016/00347574).
[22] Transcript of proceedings, 1 March 2022, 14
[23] Transcript of proceedings, 1 March 2022, 14.
[24] Transcript of proceedings, 1 March 2022, 12.
[25] Transcript of proceedings, 1 March 2022, 14.
[26] Transcript of proceedings, 1 March 2022, 15.
[28] Transcript of proceedings, 1 March 2022, 16.
[30] Transcript of proceedings, 1 March 2022, 17.
[40] Transcript of proceedings, 1 March 2022, 20.
[50] Exhibit 4, RTB, 230 - 231, 233 and 250
[57] Sexually touch another person without consent - T2.
[64] Transcript of proceedings, 1 March 2022, 52.
[66] Exhibit 6, G6, 100, lines 14 to 16.
[67] Paragraph 21A(2)(j) Crimes (Sentencing Procedure) Act 1999 (NSW).
[70] Transcript of proceedings, 1 March 2022, 53 -54.
[71] Transcript of proceedings, 1 March 2022, 54.
[74] Transcript of proceedings, 1 March 2022, 48.
[75] Transcript of proceedings, 1 March 2022, 49.
[76] Transcript of proceedings, 1 March 2022, 50.
[80] Transcript of proceedings, 1 March 2022, 42.
[81] Transcript of proceedings, 1 March 2022, 43.
[82] Transcript of proceedings, 1 March 2022, 44.
[83] Transcript of proceedings, 1 March 2022, 55.
[84] Transcript of proceedings, 1 March 2022, 56.
[88] Transcript of proceedings, 1 March 2022, 52.
[93] Transcript of proceedings, 1 March 2022, 23.
[94] Transcript of proceedings, 1 March 2022, 31 - 33.
[95] Transcript of proceedings, 1 March 2022, 33.
[96] Transcript of proceedings, 1 March 2022, 23.
[97] Transcript of proceedings, 1 March 2022, 29.
[98] Transcript of proceedings, 1 March 2022, 30.
[99] Transcript of proceedings, 1 March 2022, 31 - 32.
[100] Transcript of proceedings, 1 March 2022, 29.
[101] Transcript of proceedings, 1 March 2022, 30.
[104] Transcript of proceedings, 1 March 2022, 34.
[105] Transcript of proceedings, 1 March 2022, 34 - 37.
[106] Transcript of proceedings, 1 March 2022, 8, 23.
[107] Transcript of proceedings, 1 March 2022, 24.
[109] Transcript of proceedings, 1 March 2022, 25.
[110] Transcript of proceedings, 2 March 2022, 65.
[111] Transcript of proceedings, 2 March 2022, 63.
[112] Transcript of proceedings, 2 March 2022, 66.
[116] [2017] AATA 367 at [50].
[121] Exhibit 4, RTB, 274 emphasis in original.
[123] Exhibit 4, RTB, 269 emphasis in original
[126] Exhibit 4, RTB, 274 emphasis in original.
[133] Direction, subparagraph 8.4(2)(a).
[134] Soames and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1955 at [106].
[135] Nyemah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2107 at [56].
[136] ZFZM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1633 at [136].
[139] See Deng v Minister Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 at [149]- [150].
[140] This was specifically rejected by Magistrate Stewart in his decision: Exhibit 6, G6, 101.
[141] Cf Deng v Minister Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 at [155].
[145] Charlesworth J at [66] - [67]; Stewart J at [91].
[146] Charlesworth J at [42]; Stewart J at [104].
[150] [2018] FCA 594 at [23].
[154] See DFAT report at [3.156]-[3.158].
(2017) 250 FCR 548
(2016) 241 FCR 461