THE TRIBUNAL'S DECISION
22 The Tribunal set out the procedural history ([4]-[7]) and the legal framework for the decision, including Direction 90 ([8]-[11]). It summarised the evidence before it of the applicant's offending and conduct. In addition to trespass and drink-driving offences, this included multiple incidents of physical aggression between the applicant and Ms AB, often escalating from heated arguments while both were intoxicated, and in breach of various domestic violence orders ([22]-[23]).
23 The Tribunal set out the applicant's written and oral evidence ([24]-[40]); Ms AB's written and oral evidence ([41]-[52]); testimony from the applicant's friends ([53]-[56]; and expert evidence from two psychologists ([57]-[60]).
24 The Tribunal recorded its findings and reasons for affirming the refusal decision in a structure replicating that of Direction 90.
25 Under the heading "Protection of the Australian Community", the Tribunal noted that it did not accept the applicant's explanation for the trespass, and that repeat drink-driving offences reflected a reckless indifference to others ([77]-[78]). The Tribunal found as follows:
79. The Applicant was found guilty of three charges of contravening a domestic violence order in 2015, with the court deciding to impose a six-month term of probation, but not to record convictions. Unfortunately, the Applicant was not dissuaded by the court's non-custodial penalties and his offending continued. The court subsequently imposed custodial sentences, which are the most serious sanction available.
80. The Tribunal rejects the Applicant's claims that he 'has never been convicted of a violent offence, only of contravention of a domestic violence order', and that the nature of the interactions between him and Ms AB 'defy the standard definition of family violence'. The preponderance of the Applicant's offending and other objectionable conduct relates to repeated contraventions of family violence orders to protect Ms AB, drink-driving, and breaching conditional liberty. Ms AB said he was verbally abusive towards her and the Applicant conceded he was verbally abusive and threw and broke things during arguments between them. He also pushed Ms AB, and his aggressive and abusive conduct was personally observed by police. This conduct collectively constitutes family violence.
81. The Applicant has offended frequently since December 2012, receiving increasingly severe punishments including several terms of imprisonment. This reflects an upward trend of serious offences: cl 8.1.1(1)(d). The cumulative effect of the Applicant's repeat offending has imposed costs on the community and reflects a persistent lack of respect for Australia's law-enforcement framework: cl 8.1.1(1)(e).
82. The Applicant's overall offending is very serious.
(italics in original)
26 The Tribunal then summarised its findings in relation to the risk to the Australian community from further offences or serious conduct by the applicant. After reciting legal authority in relation to the assessment of such risk, the Tribunal found as follows (at [90]):
For the reasons discussed earlier, the Tribunal does not accept the Applicant's past claims to the Department, the two psychologists who assessed him, and to his lawyer, that he was abstinent from alcohol variously since early 2017 or May 2018, had learned his lesson, and turned the corner towards a law-abiding life. The Tribunal instead accepts the accuracy of the police reports dated between 4 November 2018 and 9 November 2019, which refer to the Applicant being arrested while sleeping in the driver's seat of his car and registering a reading of 0.204 grams of alcohol in 210 litres of breath, arguing with Ms AB in a public place, driving while disqualified, and drinking alcohol with Ms AB on 9 November 2019. In her most recent statement, Ms AB conceded she has consumed alcohol on several occasions since the Applicant was taken into detention. It is also noteworthy that the Applicant has been in immigration detention for about half the time of his claimed abstinence; and in the year prior to that was subject to a visa refusal process. These are entirely different contextual circumstances to those during which his alcohol abuse and offending occurred.
27 At [91]-[94], the Tribunal noted:
(a) the psychologist evidence that the applicant experiences impaired judgment when drinking;
(b) the favourable risk assessments prepared by medical officers in immigration detention; and
(c) the applicant's agreement that he remains subject to a domestic violence order until July 2023.
28 At [95]-[98], the Tribunal noted the applicant's evidence that he had not undertaken the therapy recommend by psychologists, but had received counselling and successfully completed six months' probation. The Tribunal reiterated its rejection of the applicant's claimed abstinence from alcohol, finding that he had "consistently relapsed … particularly when stressed, depressed, and living with Ms AB" and that "[t]he persistent nature of his alcohol abuse, notwithstanding comparatively short periods of abstinence in custodial settings, does not inspire confidence that he has overcome his alcohol problem" ([96]).
29 Under the subheading "Tribunal findings relating to recidivism risk", the Tribunal stated (at [99]) that:
The potential harm from a repeat of the Applicant's offending is very serious, with consequences including serious physical or psychological injury or death. This is regardless of whether there is a repeat of family violence or he again drives while intoxicated. The community's tolerance for such offending by non-citizens is very low.
30 After rejecting the applicant's claim that his drinking and domestic violence were triggered by the death of his father, on the basis that there had been incidents pre-dating that death (100]-[102]), the Tribunal found (at [103]) that:
The Applicant's failure to respond to past rehabilitative opportunities raises serious concerns about his capacity to change the course of his life if released. His claimed rehabilitation since entering detention is very recent and untested; particularly in the context of a resumed relationship with Ms AB. The Tribunal holds significant concerns about the persistently dysfunctional and abusive relationship between the Applicant and Ms AB, which was characterised by persistent alcohol abuse and friction. The Applicant's evidence, and that of Ms AB at the present hearing, does not inspire confidence they have 'rebuilt a functional and stable relationship'. This is particularly so, given [the psychologist's] evidence that Ms AB was still bringing 'dysfunctional ideas' to the relationship, and absence of any corroboration for her claimed counselling and treatment. Moreover, [the psychologist] stated that when one person blames themselves for the other person's domestic violence that can adversely 'influence the dynamic of the relationship.'
(italics in original; footnote omitted)
31 The Tribunal rejected reports prepared by detention centre medical officers as evidence of recidivism risk in the community on the basis that those reports focus on the risk the applicant poses to himself and others in the detention facility ([104]). The Tribunal gave little weight to the expert evidence of the two psychologists, on the basis that it was reliant on self-reporting by the applicant, that the psychologists were unaware of past unsuccessful rehabilitation and that their criteria for assessment were more limited than the scope of the Tribunal's evaluation ([105]-[106]). At [107]-[109], the Tribunal found that it was not confident that the applicant would not abuse alcohol and remain law-abiding, nor that the relationship between him and Ms AB would improve. It concluded (at [110]):
The Tribunal is unconvinced that the protective factors invoked by the Applicant will be any more effective in the future than in the past. Despite stable accommodation, employment, the interests of his children, support from family and friends, a desire to make a permanent life for himself in Australia and rehabilitative opportunities, the Applicant engaged in persistent alcohol abuse and offending. He constitutes at least a moderate risk of recidivism. Given the very serious nature of the Applicant's past offending and the harm such conduct can cause, coupled with a moderate and unacceptable recidivism risk, this primary consideration weighs very substantially against exercising the discretion in his favour.
32 The Tribunal then turned to the considerations relating to family violence in para 8.2 of Direction 90. After noting a dispute between the parties as to whether the applicant's conduct amounted to family violence, the Tribunal found as follows (at [114]):
The Tribunal rejects the Applicant's claim that his convictions are not for violent offences and adopts the reasoning about family violence in Healey and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4309. Irrespective of whether Ms AB may have taunted or goaded the Applicant during arguments, or embellished her account of what occurred to police, or refused to cooperate after police attendances, or that the Applicant was 'never charged with any physical crimes', he had other choices, such as walking away. Instead, he threw glasses or bottles at a wall, television and sliding door, verbally abused Ms AB, and was observed by police as being 'quick to anger, verbally abusing and swearing at [Ms AB]...[and]...walked towards [Ms AB] raising his hand in a clenched fist and swinging it in an aggressive motion towards her face'. Ms AB was also observed by police to have an injury that was 'fresh and bleeding,' and was 'very upset and traumatised'. The Applicant has unpersuasively explained red marks on Ms AB's neck as resulting from when he pushed her away, and a scratch on her face as accidentally caused while trying to recover his credit card. In relation to the latter, the Tribunal prefers the police report referring to their viewing of CCTV footage, which showed the Applicant standing over Ms AB and poking her face. The Tribunal does not accept Ms AB's evidence that this incident looked 'more extreme' than it was.
(italics in original)
33 The Tribunal found that it preferred police incident reports to the evidence of either the applicant or Ms AB because the applicant and Ms AB frequently claimed to be unable to recall details due to their intoxication at the time of the incident ([115]-[116]). Noting the guidance of a decision of this Court (Kenny J's observations in CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101; [2019] FCA 101 at [98]-[100]), the Tribunal stated that it had only given weight to police reports of incidents that resulted in a conviction, or where the Applicant conceded his involvement or likely involvement, or where he had accepted the accuracy of the police record ([118]). The Tribunal then concluded its findings in relation to family violence as follows (at [119]):
The Tribunal has no reason to doubt the contemporaneous police records about what they personally observed during these incidents. The Tribunal is satisfied that the Applicant has committed repeated acts of family violence against Ms AB. This primary consideration weighs substantially against his application.
34 Turning to its assessment of the best interests of children in relation to para 8.3 of Direction 90, the Tribunal found as follows:
120. The Applicant has a five-year-old and one-year-old biological child with Ms AB. He is also stepfather to Ms AB's two children from a previous relationship who are nine and 13 years of age. Custody of the two older children is shared by Ms AB and her former partner. In that respect, the interests of the Applicant's younger biological children can be distinguished from those of his stepchildren.
…
122. The evidence discloses that, despite being in detention, the Applicant has continued to play a prominent parental role in his children's lives. The Tribunal has no doubt his relationship with them is close and loving. His absence from their lives while previously imprisoned, or subject to [Domestic Violence Orders] affecting contact with his family, or while in immigration detention, has imposed an increased burden on Ms AB. It is acknowledged, however, that care of the two older children is shared with their biological father. Ms AB's capacity to continue caring for the children is also affected by, to some degree, a mental health condition she suffers ...
123. The Tribunal accepts that if the Applicant is repatriated to PNG, the adverse emotional and financial impact on Ms AB and the children will be exacerbated because she does not intend to leave Australia. That is a personal but understandably difficult decision, which she says is founded on greater opportunities for herself and the children in Australia. It is also claimed that the biological father of the two older children is unlikely to accept them leaving Australia.
124. Although contact between the Applicant and the children could continue by video calls as it currently does, and perhaps visits to PNG, that would be a poor substitute for the close contact the family would enjoy if he remained here. The children would be adversely affected by losing that close contact with the Applicant and his emotional and perhaps financial support. The latter depends on the Applicant's ability to find work.
125. The Tribunal finds that visa refusal is not in the children's best interests and this primary consideration weighs substantially in favour of setting aside the reviewable decision.
(footnotes omitted)
35 The Tribunal then set out its finding in relation to para 8.4 of Direction 90 - "Expectations of the Australian Community". The Tribunal noted (at [127]) that:
Clause 8.4(2) of the Direction states that visa cancellation, refusal or non-revocation 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. Serious character concerns are raised because of conduct in Australia or elsewhere, of the following kind:
a. acts of family violence;
…
(italics in original)
36 After noting at [128]-[130] case law to the effect that this part of Direction 90 required the Tribunal to focus on what the government has deemed the community's expectations to be, and that these would in most cases favour cancellation, the Tribunal found that:
131. The Applicant's offending reflects serious breaches of the privilege afforded to non-citizens to enter and remain in Australia. He has not been law-abiding and has not respected important institutions like the courts. His persistent criminal conduct raises serious character concerns within the meaning of cl 8.4(2)(a) of the Direction and he should expect to forfeit the privilege of staying in Australia.
132. The Applicant has lived in Australia for approximately a decade. Notwithstanding that he may be afforded a higher level of tolerance because of the time he has spent here, and other positive features of his case, this primary consideration nevertheless weighs substantially against exercising the discretion in his favour.
37 The Tribunal then turned to the "Other Considerations" in Part 9 of Direction 90. The Tribunal found that consideration of links to the Australian community weighed substantially in the applicant's favour ([147]-[150]; found that consideration of the impediments faced by the applicant if removed to PNG weighed moderately in his favour ([134]-[139]); and gave neutral weight to international non-refoulement obligations ([133]) and to the impact on victims ([140]-[146]).
38 Under the heading "Conclusion", the Tribunal stated:
151. The Applicant does not pass the character test. In considering whether the discretion under s 501(1) of the Act to refuse the visa should be exercised, the Tribunal has applied the Direction [90] to the specific circumstances of his case. The Tribunal sees no reason to depart from the guidance in the Direction that greater weight 'should generally be given' to the primary considerations than other considerations.
152. The Applicant's overall offending is very serious and is characterised by repeat family violence, drink-driving offences, and breaches of conditional liberty. The Tribunal has little confidence in his latest assurances that rehabilitative progress during the last year in detention has mitigated his recidivism risk to an acceptable level, particularly when considered in the context of a resumed relationship with Ms AB.
153. The Applicant's persistent criminal conduct reflects serious breaches of the privilege afforded to non-citizens to enter and remain in Australia. He has not been law-abiding nor respected important institutions like the courts. His persistent criminal conduct raises serious character concerns within the meaning of cl 8.4(2)(a) of the Direction and he should expect to forfeit the privilege of staying in Australia.
154. The Tribunal accepts the Applicant's biological children and stepchildren would be adversely affected by losing close contact with the Applicant and his emotional and perhaps financial support. Visa refusal is not in their best interests.
155. The Tribunal accepts that after ten years living in Australia, the Applicant is likely to experience a period of adaptation in resuming his life in PNG. He has close ties to Ms AB, their children, and other friends and past employers. If removed, he would be unlikely to be permitted to return for the foreseeable future.
156. Having weighed all relevant considerations individually and cumulatively, the Tribunal finds the discretion under s 501(1) of the Act should be exercised to refuse to grant the Applicant's visa. That is because the primary considerations 'Protection of the Australian community,' 'Family violence committed by the non-citizen', and 'Expectations of the Australian community,' considerably outweigh the combined weight to be given to the primary consideration 'Best interests of minor children in Australia' and the other countervailing considerations.
(italics in original)
39 Accordingly, the Tribunal affirmed the refusal decision.