(d) members and staff of the Tribunal in the course of performing their duties.

.................................[SGD]...........................

MIGRATION - Non-revocation of mandatory cancellation of Class BB Subclass 155 visa - where Applicant does not pass the character test - whether there is another reason to revoke the mandatory cancellation decision - consideration of Ministerial Direction No 90 - domestic violence - mental health issues - availability of health care in South Korea - decision under review affirmed

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65

Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561

Bennett and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1462

Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292

DKXY v Minister for Home Affairs [2019] FCA 495

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

FYBR v Minister for Home Affairs [2019] FCAFC 185

Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; (2016) 241 FCR 461

Minister for Home Affairs v Buadromo [2018] FCAFC 151

Minister for Home Affairs v HSKJ [2018] FCAFC 217

Minister for Home Affairs v Stowers [2020] FCA 407

PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050

Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141

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

Viljoen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1252

Direction No 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

1. On 1 May 2020 the Federal Court (Gleeson J) set aside the decision of the Tribunal of 23 October 2019 which affirmed a decision of a delegate of the Minister for Home Affairs (now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - the Respondent) under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) not to revoke the cancellation of XGHJ's (the Applicant) Class BB Subclass 155 visa and remitted the matter to the Tribunal for reconsideration according to law.

2. When this matter was first heard by the Tribunal the relevant Direction under s 499 of the Act was Direction No 79. Direction No 79 was revoked on 15 April 2021 upon the commencement of Direction No 90.

3. The Full Federal Court in Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; (2016) 241 FCR 461 held that the Tribunal is required to apply the law and any relevant policy in existence at the time of making its decision. In this matter the Tribunal has applied Direction No 90. Further, as the matter was heard after Direction No 90 was published, the parties were not disadvantaged and were able to make submissions and provide evidence having regards to the terms of Direction No 90.

4. The Applicant was born in South Korea in July 1974 and arrived in Australia on 30 July 1997 when he was 23 years of age - Exhibit 1 G33 p. 150, Exhibit 2 para 4.

5. The Applicant's parents are still alive and are, respectively, in their mid 70s and 80s and he also has an older brother - Exhibit 16 p. 4 para 1.

6. Both of the Applicant's parents have been long-term members of the Yoido Full Gospel Church. This Church, which is located on Yoi Island in Seoul, is a Pentecostal denomination affiliated with the Assemblies of God. The Applicant's father was one of the earliest members of the church, and has played a prominent role in the congregation in his role as a Pastor - Exhibit 14 p. 1, Exhibit 16 p. 5 para 2.

7. It would appear that the Applicant had an unremarkable childhood, growing up in a happy family atmosphere, and having had no difficulty with his schooling. Following secondary school, the Applicant commenced a Bachelor of Electronics - Exhibit 16 p. 5 paras 2-5.

8. The Applicant was required to perform two years military service while he was living in South Korea. During that service he was posted to a Border Unit which served at the border of South and North Korea and rose to the rank of Squadron Sergeant of a firearm platoon of 28 men. Whilst serving at this time he witnessed the suicide of a friend and fellow soldier which traumatised him. This emotional trauma was compounded in August 1996 by a landslide which engulfed his camp resulting in the death of a number of soldiers - Exhibit 8 paras 3 - 15.

9. Shortly thereafter (1997), on being discharged, the Applicant sought psychiatric support in Seoul and was diagnosed with post-traumatic stress disorder (PTSD), major depressive disorder (MDD) and alcoholism - Exhibit 8 para 16.

10. The Tribunal was provided with a translated psychiatrist medical report dated 3 June 1997 - Exhibit 18.3. In that report it is stated that the Applicant had a history of drinking and smoking of more than two years. It was noted that the Applicant "has a history of alcoholism and psychotic symptoms". It was also observed:

"He states that alcohol 'the only way to help him resolve all those symptoms without medication 'indicates mental illness medical support inside the army...

[The Applicant], at 23 years old, young man has been diagnosed with the alcoholism of

• It was high concentration with alcohol in the blood causes symptoms to him:

slowing of reflexes, the gap in the memory, poor decision-making abilities, staying conscious but not having memory of his actions, which called a blackout. A decreased ability to control bodily movements, especially he had risky behaviour, that symptom can happen this.

[The Applicant] is diagnosed with major depressive disorders and alcoholism.

He is under my treatment for the following medications

• - Mirtazapine (50 mg)
• - Pristiq (150 mg)"

11. The Applicant did not complete his university studies, and decided instead to travel to Australia - Exhibit 16 p. 5 para 5.

12. It is not contested that after arriving in Australia, the Applicant has been in continuous employment. The evidence before the Tribunal is that the Applicant has been engaged mostly in manual work, including demolition, cleaning, painting and tiling. For a number of years up to 2009, the Applicant ran his own cleaning business, and from 1 November 2016 worked for Waterpoint Building Management as a cleaner - Exhibit 3 TB1 p. 44, Exhibit 16 p. 5 paras 5 - 6. The Business Operations Manager of Waterpoint Building Management in a character reference of 13 March 2018 stated that the Applicant was "a high achiever in his work ethic, always diligently efficiently completing his duties and following them up with taking on further duties" - Exhibit 1 G26 p. 118.

13. About ten months after arriving in Australia the Applicant met Ms JYC, who was also born in South Korea but was an Australian citizen - Exhibit 3 TB11 p. 283 para 5. The Applicant and JYC married in Australia in March 1999 and in 2001 returned to South Korea and celebrated their marriage with their respective families - Exhibit 3 TB11 p. 283 para 5, Exhibit 8 para 19, Exhibit 16 p. 7 para 20.

14. The Applicant and JYC's only child, Ms YJK, was born in October 2002 - Exhibit 1 G34 p. 151.

15. The Applicant described JYC as his "dream wife" and "a great wife who has sacrificed everything for our family" - Exhibit 8 paras 19 - 20.

16. Unfortunately conflicts arose between the Applicant and YJC concerning the monetary support she was providing to her family. According to the Applicant YJC's "extended family visited us quite often from offshore...to borrow our money mainly." - Exhibit 8 para 19.

17. A dispute arose on 3 March 2002 between the Applicant and his wife. At the time of the dispute YJC was eight weeks pregnant. According to the Police Facts Sheet, the Applicant and YJC were at JYC's brother's home when a dispute arose over whether they would stay the night there or return to their home. The following account is given in the Police Facts Sheet - Exhibit 3 TB1 pp. 5 - 6:

"The victim did not want to argue in her brother's home and went outside and got into her car.

The defendant followed the victim outside to her car and grabbed the victim on the arm preventing her from leaving the premises. The defendant grabbed the victims left arm whilst she was then seated in the vehicle saying 'Jump out of the car, come inside'. The victim and the defendant continued to argue about where to sleep for the next five to ten minutes.

The defendant then grabbed the right arm of the victim and said 'Come out!'. The defendant then pulled the victim out of the car causing the victim to fall on the ground.

The victim stood up and the defendant then pushed the victim with both hands on her shoulders causing the victim to hit the wall behind her. The victim said 'What are you doing, how could you do this I am pregnant!'

The defendant then punched the victim with a closed right fist to the left side of her face. The victim attempted to cover up and the defendant again hit the victim in the left eye and nose with a closed right fist. The victim fell onto the ground and screamed.

The victims brother came out from the house and asked what was going on. The defendant again tried to get to the victim however the brother stood between the victim and the defendant. The brother then escorted the defendant from the scene.

The brother and the victim then drove to Concord hospital, the victim was treated for soft tissue bruising and swelling to the bridge of the nose, left eyelid, and upper left and right arms."

18. The Applicant was subsequently arrested, however while he denied punching YJC he claimed that he had thrown his wallet and keys in her face.

19. In her psychological assessment report of 6 November 2020, Ms Delphine Bostock noted that the Applicant informed her that the victim of his assault was his brother-in-law and that he denied that "he had ever been physically violent with intimate partners." - Exhibit 16 p. 9 para 33.

20. In a Statutory Declaration of 6 September 2019, the Applicant again denied the version of events outlined in the Police Fact Sheet set out above - Exhibit 3 TB11 p. 286:

"31. The assault charge in 2002 happen when my ex-wife and I were moving to Croydon. My ex brother in law and I started arguing and then we ended up fighting. My wife tried to break it up and got hurt. The argument was about money I didn't get any legal advice and went to court. I didn't speak English at that time. This was a stupid fight and I should have known better, I should have walked away."

21. On 22 March 2002 an Apprehended Violence Order under the Crimes Act 1900 (NSW) was made against the Applicant for the protection of YJC, which prohibited the Applicant from intimidating, stalking, assaulting, molesting, harassing, threatening or otherwise interfering with her - Exhibit 3 TB1 p. 10. Further, the Applicant was convicted of assault occasioning actual bodily harm under s 59(1) of the Crimes Act 1900 and fined $750- Exhibit 3 TB1 p. 4, TB3 p. 123.

22. From the evidence presented, this was the first time that the Applicant came to the attention of Police either in Australia or South Korea.

23. It would appear that the Applicant and YJC continued living together and after their child was born in 2002 they stayed together as a family unit until 2005/2006 when YJC left the family home - Exhibit 8 paras 25 - 26, Exhibit 16 p. 8 para 23. When YJC left the family home she did not take YJK with her, and the Applicant initially took on the role of sole parent looking after YJK and juggling parental responsibilities with working - Exhibit 8 paras 27 - 29. The exact circumstances of the Applicant's parenting of his daughter are unclear as will be explained below.

24. The Applicant provided this account of what occurred when his first wife left the family home - Exhibit 3 TB11 p. 284:

"10. My ex-wife moved back to South Korea when we separated. My daughter has family in Australia from her mother's side but because we got divorced and this is shameful and embarrassing in our culture, they have had no contact or relationship with [YJK]. This is why it's so hard for single parents in South Korea to survive. Divorce is still taboo.

11. My ex-wife and I got officially divorced in 2009.

12. In or around 2009 I decided that it was important that [YJK] (aged around 8 years old) learnt the Korean culture so I took her to South Korea and left her in the care of my parents and brother. [YJK] was living in Korea for 3 years between 2009 and 2012. She went to school and learned the language. She also got the love and attention of my mum and her grandmother. My mum was a housewife so she looked after [YJK] like her child. During this time [YJK] grew very close to my parents and one brother. She enjoyed her time in Korea.

13. Around 2012 we decided it was time [YJK] came back to Australia..."

25. Commencing in 2005, the Applicant was charged with a number of traffic related offences.

26. On 24 October 2005 the Applicant was convicted of drink driving and was fined $800 and disqualified from driving for nine months. The Applicant had an alcohol reading of 0.125 - Exhibit 3 TB1 pp. 13 -15, TB3 p. 123.

27. The Applicant was next convicted on 25 January 2006 for driving whilst disqualified (on 31 December 2005) and was fined $750 and disqualified from driving for two years - Exhibit 3 TB1 pp. 17 - 18, TB 3 p. 123.

28. Again, the Applicant continued to drive whilst disqualified and was apprehended on 13 March 2006. He was sentenced at the Burwood Local Court on 3 April 2006 for driving whilst disqualified and fined $1,000 and disqualified for two years - Exhibit 3 TB1 pp. 21 - 22, TB3 p. 124.

29. Of interest is a Probation and Parole Service Court Duty Officer Report prepared by Ms Cheryl White who interviewed the Applicant prior to his sentencing at the Burwood Local Court. Ms White recounted the following information given to her by the Applicant - Exhibit 3 TB1 p. 24:

"The offender is not previously known to this Service.

At 32 years old, [the Applicant] currently resides in his own premises which he shares with a flat mate. [The Applicant] is presently going through divorce proceedings. He stated that his wife had returned to Korea with his daughter aged five. His daughter is living with his elderly parents. He stated that he is having financial difficulties as he is required to send $2000 per month to Korea for the upkeep of his family along with paying $3100 monthly toward his home and car loan....

It would appear that [the Applicant] has been gainfully employed since his arrival in Australia, initially in the building industry. In 2001 [the Applicant] related that he had commenced his own cleaning business which he currently employs five to six people.

When reflecting on the offence, [the Applicant] agreed with the Police facts, claiming that he had to drive as a requirement of his employment as he is required to bring all the cleaning equipment to various worksites. He stated that he works six to seven days per week and on two of those days none of his employees are capable of driving. When discussing the concept of licence entitlement, the offender offered very little understanding, however he claimed that he would refrain from driving until qualified to do so..."

30. Unfortunately, the Applicant did not refrain from driving whilst disqualified and was again charged on 24 May 2007 with this offence having been questioned by Police following a random breath test. - Exhibit 3 TB1 pp. 25 - 26.

31. The Applicant was again interviewed by a Probation and Parole Officer (Ms Lita Medeiros). Ms Medeiros was informed that the Applicant then resided in an apartment with his wife and four year old daughter - Exhibit 3 TB1 p. 28. As the Applicant's first wife and daughter had, according to Ms White, returned to South Korea the previous year, it is not clear if the information given to Ms Medeiros by the Applicant was accurate. The Applicant did not remarry until 2009 - Exhibit 3 TB1 p. 33.

32. In that part of the reported headed "Attitude to the Offence", Ms Medeiros made the following observations - Exhibit 3 TB1 p. 29:

"Despite accepting responsibility for the offence, [the Applicant] made attempts to justify his offending. Namely, he claims that the management of his business relies heavily upon his driving and that at the time of the offence he was on his way home after taking an employee home. It is noted that [the Applicant] has previously verbalised good intentions in relation to addressing his offending. However, ultimately it appears that he could not be troubled with the demands of organising and adhering to alternative arrangements to driving and he has subsequently re-offended with the current offence."

33. Subsequently, Ms Medeiros commented - Exhibit 3 TB1 p. 29:

"He presented as co-operative and appeared to acknowledge his criminogenic issues. It appears that his offending has likely resulted from his capriciousness and he appears to otherwise abide by and value a lawful lifestyle."

34. On 7 November 2007 at the Burwood Local Court the Applicant was sentenced to six months imprisonment suspended on entering a bond - Exhibit 3 TB3 p. 124.

35. In October 2009 the Applicant married his second wife, Ms SC. The marriage was not a happy one, with the parties often arguing, specifically about SC's male English language tutor. On 2 August 2010 the Applicant arrived home intoxicated, and the Police Fact Sheet provides the following account of what occurred - Exhibit 3 TB 1 p. 33:

"The accused was upset and angry because the victim had not answered a number of telephone calls he had made throughout the day. The accused and victim have begun arguing about this. The accused has kicked the victim's left knee and locked her inside the bedroom of the apartment.

The accused opened the door five minutes later and began throwing the victim's cosmetics and clothes onto the floor. The accused told the victim to 'Get out' and proceeded to take hold of the victim's hair with his hand and pull her along the ground. The accused has punched the victim to the left side of her head at least five times. The accused's assault of the victim resulted in a small red mark to the left forehead area and a bruise approximately .5cm diameter on her left hand.

The victim left the unit and called her friend who in turned contacted police...

Police attended...and were met by the accused who was sitting on the ground inside the front door, with the door lock in one hand and a screwdriver in his other hand...."

36. The Applicant appeared before Magistrate Longley of the Burwood Local Court on 6 August 2010. A conviction for common assault was recorded and the Applicant was directed to enter into a good behaviour bond for two years and to comply with the terms of an Apprehended Violence Order - Exhibit 3 TB1 pp. 35 - 36.

37. Less than two months later, on 30 September 2010, the Applicant was again charged with driving whilst disqualified. On 2 March 2011 he was sentenced at the Balmain Local Court to perform 150 hours community service and was disqualified from driving for two years commencing on that day - Exhibit 3 TB3 pp. 125 - 126.

38. The Applicant's repeated disregard for multiple Court orders that he refrain from driving whilst disqualified continued. On 22 August 2012 he was arrested at Silverwater having initially been interviewed by Police for driving an unregistered motor vehicle. Upon further investigations it was determined that the Applicant was driving whilst disqualified - Exhibit 3 TB1 pp. 41 - 42.

39. The Probation and Parole Service Court Duty Officer Report of 16 October 2012 provides the following information - Exhibit 3 TB1 p. 44:

"...He said he married in 1999 and divorced in 2006, remaining single since then, but now having the care of his nine year old daughter from the marriage, living with him, in his rented unit.

...he had his own cleaning business...with many employees, but his driving disqualification in 2005, apparently ultimately led to the demise of his business by 2009 as he could not effectively supervise his workers. He said he became bankrupt which only ended in December 2011.

Since July this year...he has been employed as a supervisor for a large suburban shopping centre, working five days and getting to work by public transport...

His ex-wife has remarried and has her own restaurant business but does retain contact with their daughter....if he should face a gaol penalty, his daughter should return to live with his parents in Korea as she has been living with them previously..."

40. It would appear that the Applicant did not inform the Probation and Parole Officer that he had remarried, let alone that he had been convicted of assaulting his second wife.

41. On 16 October 2012 Magistrate Farnan sentenced the Applicant to imprisonment for six months, it being suspended on the condition that he enter into a good behaviour bond for six months - Exhibit 3 TB1 pp. 45 - 47, TB3 p. 126 - 127.

42. The Applicant was again charged with driving whilst disqualified on 19 November 2014, and was sentenced on 18 December 2014 at the Burwood Local Court to 150 hours community service and with a further two year driving disqualification - Exhibit 3 TB1 pp. 49 - 51, TB3 p. 127. The Pre-Sentence Report prepared by a Community Corrections Officer contains the following observations - Exhibit 3 TB1 p. 52:

"[The Applicant] said that he had no excuse for his short-sighted behaviour. He said he had asked friends if they could assist in having his car taken for servicing and to get a blue slip, but when none were able he decided to drive the car himself. He said he regretted this decision and acknowledged that his actions constituted a serious offence."

43. In 2015 the Applicant's third wife (Ms EYK) arrived in Australia from South Korea with her daughter (Ms HBK). It would appear that HBK came to Australia on a student visa and EYK on a guardian visa. The Tribunal was informed that EYK had work limitations under her visa with consequent monetary problems. EYK was initially relying on monetary support provided by her mother - Exhibit 3 TB9 p. 270 para 3, TB11 p. 285 para 20.

44. HBK and YJK both attended the same high school in Sydney and became friends. HBK would often visit YJK at her home, and met the Applicant. HBK's first impression of the Applicant was that "he was really nice" and he often cooked for his daughter and HBK and was "very kind and gentle" to YJK - Exhibit 3 TB10 p. 277 para 3.

45. The Applicant first met EYK in December 2016 and they soon started dating. On 12 April 2017 the Applicant and EYK were married, and EYK and HBK moved into his home - Exhibit 1 G4 p. 20 para 24, G22 p. 106 paras 5- 8, Exhibit 3 TB9 p. 270 para 7.

46. EYK gave this account of the events after they were married - Exhibit 3 TB9 p. 271:

"8. Our life was good after we got married. A couple months after our wedding I started to notice that [the Applicant] was a heavy drinker. He would mostly drink after work. He would be a totally different person when drunk."

47. Police records admitted into evidence disclose that only one month after the wedding, the Applicant and EYK were fighting resulting in Police intervention.

48. On 16 May 2017 Police investigated a dispute between the Applicant and EYK. It would appear that both parties had been drinking and that an argument arose over the fact that EYK and HBK had eaten all of the left-over food without leaving any for YJK. No charges were laid - Exhibit 3 TB3 p. 143.

49. Police were again called to the Applicant's unit on 24 May 2017 following an alcohol fuelled argument between him and his wife over whether their cat should remain inside the unit overnight. Again, no charges were laid, and the Police opined that EYK was the instigator/aggressor of the argument - Exhibit 3 TB3 pp. 142 - 143.

50. Unfortunately, the pattern of drunken arguments between the Applicant and EYK continued, and culminated in Police intervention on 10 August 2017. EYK provided this account of what occurred - Exhibit 3 TB9 p. 271:

9. On or around 10 August 2017 [the Applicant] and I got into an argument. [HBK] heard us and came to my defence. [HBK] started cursing at [the Applicant] in Korean, and [the Applicant] pushed her. [HBK] called the police and an AVO was ordered against him. [The Applicant] had to move out of our home, but our relationship continued."

51. The contemporaneous Police Report of the incident paints a somewhat more violent and traumatic account of what transpired - Exhibit 3 TB 1 pp. 66 - 67:

"About 10.30pm on 9th August 2017, the victim was in her room. The victim has hears (sic) the argument between her mother and step dad escalate and both were shouting at each other.

The victim has become concerned for the welfare of her mother and has left her bedroom and made her way into the main bedroom where her mother and the accused were arguing. The victim has attempted to intervene in the argument to calm the situation down.

The accused has began screaming at the victim and a verbal argument has ensued for a number of minutes. The victim has then said 'Fuck you' to the accused in Korean.

This has enraged the accused who has commenced to push the victim back into the hallway with both hands to the victims chest. The victim has stumbled backwards into a wall where the accused pinned her against a wall with his hands around her chest and neck region causing scratches to the left side of the victims neck...The accused pushed the victim into her own bedroom and onto her bed and held her down.

The victim has attempted to free herself by clawing, scratching and kicking the accused. The victims mother....has began scratching the accused back in an attempt to help the victim. The accused let go of the victim and went back into the main bedroom...

The accused was placed under arrest and cautioned and escorted outside the unit. The accused started yelling and resisted efforts to remove him from the unit resulting in police utilising a knee strike and wrist lock. After a few moments, the accused complied and was removed from the unit and out to the police caged truck."

52. An Apprehended Domestic Violence Order (ADVO) under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) was made on 17 August 2017. Pursuant to this Order, the Applicant was prohibited from approaching or contacting HBK or going within 100 metres of where HBK lived or worked. Specifically, the Applicant was prohibited from going within 100 metres of his Croydon unit - Exhibit 3 TB1 pp. 69 - 71.

53. It would appear that the Applicant, having been prohibited from living at this apartment, resided with a female cousin, Ms BJH - Exhibit 3 TB1 p. 86.

54. According to the Applicant, on 2 October 2017 (Labour Day), he went to his apartment to see his wife and daughter and pick up some documents. He provided this account of what occurred - Exhibit 3 TB11 pp. 286 - 287 para 33:

"My stepdaughter called the police. Stupidly I had some drinks with friends beforehand after work and then went to the house."

55. In another Statutory Declaration, the Applicant expanded on what occurred - Exhibit 1 G22 p. 107 para 17:

"On 2 October 2017, after having a few drinks with my friends after work, I went to see my family but [HBK] at that time may not have had positive feelings towards me. So when she saw me at the house we had a small altercation and she contacted the police again. This led me to stand before the court..."

56. The contemporaneous Police record of what occurred suggests a much more volatile situation - Exhibit 3 TB3 p. 141:

"On Monday the 2nd of October 2017, the Accused was in the bedroom of his unit with his wife. The Victim and the Witness were in their bedroom directly opposite. About 9.25pm on Monday the 2nd of October 2017, the Victim and the Witness could hear yelling coming from within the main bedroom. The Victim and Witness went into their parent's bedroom and saw the Accused and his wife arguing. At this time the Victim has stepped in between the Accused and her mother. The Accused has said to the Victim 'Don't trust your mother'. The Victim has told the Accused 'Don't talk to me', this is when the Accused grabbed the Victim by her hair. The accused pulled the victim's hair using his left and right hand, pulling her hair above both her ears. The Accused said to the Victim 'what did you say to me'. The Victim has then started screaming and kicked the Accused in the legs so that he would let go of her hair. A scuffle between all parties has occurred on the bed in the main bedroom. The Witness and her step mother have pulled the Accused off the Victim. The Accused has then grabbed a back pack with his belongings and left the unit."

57. In neither of the Statutory Declarations quoted above does the Applicant refer to a further incident which occurred on 26 October 2017 which resulted in him again being arrested after having breached the terms of the ADVO. The Police record of what transpired is set out below - Exhibit 3 TB3 p. 139:

"About 10:00pm on Thursday the 26th October 2017, Police received a triple zero call to..........in relation to a domestic incident occurring. Police attended shortly after and met the witness and partner of the accused,.............who was pointing to the stairwell in the common area of the building. Police were aware of the accused and his ADVO conditions. Police went to the top level of the unit complex and found the accused hiding in the corner. Police arrested and cautioned the accused in relation to breaching his ADVO. The accused said 'I know but I want to see me daughter.' Police could smell a strong scent of intoxicating liquor coming from the breath of the accused. Police then entered the unit and spoke with the aforementioned victim, witness and the accused' second daughter and witness...............Police ascertained that the accused was in the bedroom with his partner drinking when and (sic) argument occurred between them. Police were contacted after an escalation between the accused and his partner."

58. It would appear that the Applicant's bail was revoked on 27 October 2017 and he was remanded in custody. The Applicant remained in custody until 26 February 2018 - Exhibit 1 G8 p. 47, G22 p. 107 para 17, Exhibit 3 TB3 p. 129.

59. In a Pre-sentence Report prepared by a Community Corrections Officer, and dated 31 October 2017, the following observations were made about the above incident - Exhibit 3 TB1 pp. 86 - 87:

"[The Applicant] claimed that he was only a social and occasional consumer of alcohol. However, he informed that when he is angry or upset, he drinks alcohol without restraint, becoming even more angry or irritated.

[The Applicant] informed that on the night of his current offence, he shared a bottle of white wine, and glass of beer each, with his wife at a nearby hotel, after which he walked her home....where they continued to drink alcohol in her bedroom, prior to the victim also returning home...

[The Applicant] said that he was fully aware at the time of his offence that he was breaching a recently finalized Apprehended Domestic Violence Order (ADVO) but he wanted to be with his partner...He said he had no good excuse for what he had done."

60. The Applicant appeared before the Burwood Local Court on 31 October 2017 and 2 February 2018 in relation to the offences outlined above. Following the revocation of his bail on 27 October 2017, the Applicant remained in custody, and this was taken into account when he was sentenced on 2 February 2018 - Exhibit 1 G7 pp. 43 - 44.

61. On 31 October 2017 the Applicant was convicted of assault occasioning actual bodily harm and contravening an ADVO. On both counts the Applicant was sentenced to imprisonment for 12 months suspended on entering a bond to attend for counselling, educational development and drug and/or alcohol rehabilitation as supervised by the Burwood Probation and Parole Service -Exhibit 1 G6 pp. 39 - 41, Exhibit 3 TB3 p. 128. When sentencing the Applicant, Magistrate Trad said - Exhibit 1 G6 p. 38:

"I note that you have been bail refused in relation to this matter since 27 October, last Friday. Having regard to the nature of the allegations that see you back before the Court so soon after a s 9 being imposed, it should be very clear to you that a gaol sentence is an option that the Court must be considering. It is a breach, not only of a court order in terms of for the protection of the victim of the offence, the protected person under the AVO, but also a breach of that bond that was imposed by the Court. So both very serious matters and it is a case that under all of the circumstances, having regard to the report that has been prepared, in my view the only option for the Court is a custodial sentence."

62. When the Applicant next appeared before Magistrate Trad on 2 February 2018 for contravening an ADVO he was sentenced to four months imprisonment commencing 27 October 2017 and concluding on 26 February 2018 - Exhibit 1 G5 p. 36.

63. When sentencing the Applicant, Magistrate Trad again made it clear the ramifications he would face should he continue with his unlawful behaviour - Exhibit 1 G7 p. 44:

"ACCUSED: Actually the - my stepdaughter and my wife has got - only experience that Australian life is only three years. They can't speak English very well, even I just teach the call to the police to report the whole thing. I let them know but a problem is they never imagine just contact to the police make a result like this so -

HER HONOUR: But really that they don't think that - that they don't know that the consequences of reporting--

ACCUSED: Yes.

HER HONOUR:--your conduct is not really a matter for me to be concerned about because clearly you are the one who is under the obligation to behave in a certain way because of the AVO.

ACCUSED: Yeah

HER HONOUR: So it was your obligation not to commit the offence to which you have pleaded guilty to.

ACCUSED: Yeah, I understand about that, yeah. So if I change I make sure I never just got the same behaviour like this.

HER HONOUR: I take that into consideration because, quite frankly, if the conduct is repeated in the future, you have already received a custodial sentence because you are under a suspended sentence, today I am going to impose a custodial sentence to take into consideration the period of time you have already been in custody but it is also to reflect the offending that occurred to prior to and the fact that you were on bail subject to allegations of assault occasioning actual bodily harm prior to it. And this is a contravene AVO with violence, and so the Court must take that into account and impose a custodial sentence...

But I do warn you very clearly - if you continue to offend in this way the custodial sentences will get longer. Do not forget that since this offence you are now subject to a 12 month suspended gaol sentence, so if you commit any offences after you are released and you commit any offences at all that bring you back before the Court you will then be in breach of that s 12, that is a 12 month gaol sentence, and you could spend up to that full period of time in goal. So you must be very mindful of your conduct when you leave custody..."

64. On 19 February 2018 a delegate of the Respondent cancelled the Applicant's Class BB Subclass 155 Five Year Resident Return visa under s 501(3A) of the Act on the basis that he had a substantial criminal record. The delegate referred to the Applicant's 31 October 2017 conviction for contravening an ADVO and his sentence of 12 months imprisonment. Reference was also made to the fact that at that time the Applicant was serving a sentence of imprisonment and to his conviction of 2 February 2018 - Exhibit 1 G12 pp. 62 - 65.

65. The Applicant was also informed of his right to make representations for the revocation of the cancellation decision - Exhibit 1 G12 pp. 63 - 65.

66. Immediately after being released from prison the Applicant was placed in immigration detention. The Applicant remained at the Villawood Immigration Detention Centre until July 2018 - Exhibit 1 G8 p. 47.

67. The Applicant duly made representations for revocation of the cancellation decision. He stated that if he was deported from Australia his family would be scattered. His wife did not have the capacity to support the family and would be forced to return to South Korea. His daughter and step-daughter would find it difficult to integrate back into Korean society and would be educationally disadvantaged. Further, if they remained in Australia, they would be alone and without parental guidance and support. The Applicant also claimed that his stepdaughter was shocked about the ramifications of her calling the Police and she was sorry. In conclusion, the Applicant made these representations - Exhibit 1 G20 p. 92:

"I also know that my actions were wrong and I regret that I didn't seek legal advice when this first happened. I wasn't aware of the seriousness of an AVO and nor was my step-daughter and the rest of my family.

I am truly sorry for my family and I promise that I will never do the same thing again and will work on my rehabilitation in relation to my alcohol problem. Please let our family be together and please give us another chance to be happy."

68. Attached to the application was a Personal Circumstances Form. In response to the Question: "What do you think is the likelihood that you may re-offend now?" the Applicant provided the following response - Exhibit 1 G21 pp. 102 - 103:

"I can assure you that I will never re-offend. I do not want my family to go through this experience again. I know that I have several offences in my criminal records which are mostly related to driving offences. I operated a cleaning business as a sole trader for close to 13 years, from around 2003 to 2016, and my livelihood heavily depended on driving. However, I was young and reckless so I sometimes would drink with colleagues or friends to 'release' my stress and loneliness as a single parent. At that time, I thought that I had no choice but to drive or else I would not be able to maintain my business. Now, however, I know that this is not the right attitude. I now take ownership of the offences I committed and recognise that I should have either not drunk before driving, or decided to sacrifice my business if I wanted to drink. As my records show, I do not have any driving offences since then, which shows that I am not a threat to the community, that I respect the law and that I have changed."

69. In addition the Applicant provided a Statutory Declaration together with supportive Statutory Declarations from EYK and HBK as well supportive statements from YJK, his employer and Mr Kwang-Kook Kim - Exhibit 1 G22 - 27 pp. 106 - 120.

70. On 25 July 2018, after considering the Applicant's response a delegate of the Respondent determined to revoke the original decision to cancel his visa - Exhibit 1 G13 pp. 68 - 69.

71. Less than two months after his release from immigration detention, the Applicant again came to the attention of New South Wales Police.

72. According to EYK, 20 September 2018 was Korean Thanksgiving (Chuseok), which is a big celebration in South Korea and an occasion when time is spent with family. On that day EYK cooked Chuseok dishes and asked the Applicant to join her for dinner. She did so, knowing that this was in breach of the ADVO. The Applicant was hesitant to come home, but ultimately agreed. He arrived at 8:00pm. At the time HBK was not in the apartment, but later came home and realised that the Applicant was in the apartment. According to EYK as soon as HBK heard the Applicant's voice she called the Police and he was then arrested. - Exhibit 3 TB9 p. 271 para 11.

73. This version of events is somewhat at odds with the Police report of what transpired.

74. At approximately 10:30 pm on Thursday 20 September 2018 New South Wales Police attended at the residence of EYK and HBK after receiving information that the Applicant was at the premises in a drunken state arguing with EYK. The Police account of what transpired is set out below - Exhibit 3 TB3 p. 137:

"...About 10:30 pm on Thursday 20th September 2018, Police attended..........after receiving information the accused was at the address, intoxicated and arguing with his ex-wife who resides at the address. Police were invited into the unit by........, who told Police the accused was in the bedroom and there was a current Apprehended Violence Order in place that he was not allowed to be at the address. INDICMENT 1. CONTRAVENE RESTRICITON IN AVO (DOMESTIC) Police entered the bedroom and observed the accused standing in the bedroom, in breach of his current orders. Police observed the accused was unsteady on his feet, his balance was well affected and there was a strong smell of intoxicating liquor, Police formed the opinion the accused was well affected by intoxicating liquor. Police introduced themselves to the accused and informed him he was under arrest for breaching the AVO. INDICTMENT 2/3: RESIST/ASSAULT POLICE OFFICER IN EXECUTION OF DUTY Police told the accused to turn around which he complied. Police began to search the accused and remove property from his person and place it on the bed. Whilst Police were searching the accused, he screamed loudly and turned around quickly then pushed.......in the chest. Police have reacted to this by utilising an approved 'check-drill' striking the accused in the upper chest, which has knocked the accused onto the bed. Police have moved in to attempt to restrain the accused, whilst moving towards him, the accused violently kicked at......striking him in the chin, feeling immediate pain. The accused began to scream and yell towards Police, fearing further violent confrontation Police removed their Oleo-resin Capsicum (O.C.) Spray and yelled at the accused 'stop all you'll be sprayed.' The accused kicked towards Police again and attempted to stand up. It was at this point, Police delivered a short burst of O.C. spray, which struck the accused in the face, taking immediate effect. Police moved in a took a hold of the accused, the accused began to violently resist Police efforts to restrain him by trying to punch and kick Police whilst he continued to scream and yell in another language. The accused was taken to the ground and continued to violently resist Police efforts to restrain him. Police were required to utilise a number of approved knee and hammer fist strikes. Police required the assistance of four (4) officers in total to eventually gain control of the accused when he was hand-cuffed to the rear...."

75. On 20 September 2018 at the Burwood Local Court, the Applicant pleaded guilty to three charges:

(f) Assaulting a Police Officer in execution of duty; and

(g) Resisting a Police Officer in execution of duty.

76. With respect to the first charge, the Applicant was sentenced to imprisonment for 12 months commencing on 20 September 2018 with a non-parole period of four months - Exhibit 3 TB3 p. 131.

77. With respect to the remaining two charges, the Applicant was sentenced to a Conditional Release Order which required supervision for 24 months commencing 28 September 2018 and concluding on 27 September 2020 - Exhibit 3 TB3 p. 131.

78. On 23 October 2018, a delegate of the Respondent again cancelled the Applicant's visa pursuant to s 501CA of the Act - Exhibit 1 G14 pp. 71 - 74. The Applicant requested a revocation of the visa cancellation - Exhibit 3 G31 pp. 132 - 133.

79. On 31 July 2019 a delegate of the Respondent decided, pursuant to s 501CA(4) of the Act, not to revoke the original cancellation decision - Exhibit 1 G2, 3 and 4, pp. 10 - 33.

80. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act, which provides:

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

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

(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."

81. The starting point when considering s 501CA(4) is whether an applicant has made representations in accordance with the invitation given - s 501CA(4)(a). It is not disputed in this matter that the Applicant has made the requisite representations.

82. It will be noted that the word "may" is used at the outset in s 501CA(4). The implications of the use of the word "may" were considered by the Full Federal Court in Minister for Home Affairs v Buadromo [2018] FCAFC 151 where the following observation was made (at [21]):

"...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...."

83. Accordingly, there are two issues to be determined by the Tribunal:

(a) whether the Applicant passes the character test as defined by s 501 of the Act; and

(b) whether there is another reason why the decision to cancel the Applicant's visa should be revoked.

84. If the Applicant succeeds on either ground, then the cancellation of the Applicant's visa must be revoked - Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66 (Marzano) at [31] per Collier J.

85. Further, the "reason" in s 501CA(4)(b)(i) is not any reason but rather the determinative reason for revocation arrived at after a balancing exercise. Her Honour Collier J made the following observations in Marzano (at [32]):

"In relation to the question whether s 501CA(4)(b)(ii) contemplates an evaluative process on the part of the Minister, I respectfully adopt the reasoning of North ACJ in Gaspar [2016] FCA 1166 at [38] - [39]. In so doing, I note that the section does not, for example, require the Minister to revoke a cancellation decision if the Minister finds 'any' reason why the cancellation decision 'could' be revoked. The requirement that the Minister revoke a cancellation decision if he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against revocation. This is the exercise upon which the Minister clearly embarked in this case..."

86. Section 501 of the Act empowers the Minister to both refuse to grant a visa and also to cancel a visa already granted to a person, if the Minister forms the opinion that the person does not pass the character test.

87. In turn, the character test is defined in s 501(6). Importantly, a person does not pass the character test if "the person has a substantial criminal record" - s 501(6)(a). A "substantial criminal record" is defined by s 501(7) and includes:

"(c) the person has been sentenced to a term of imprisonment of 12 months or more..."

88. As Tamberlin J observed in Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292 (Djalic) at [68]/310:

"The authorities recognise that the protection of the Australian community lies at the heart of the discretionary power to cancel the visa of, or deport a non-citizen convicted of serious criminal offences."

89. In the earlier Full Federal Court decision of Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65 Lander J quoted with apparent approval part of Ministerial Direction 21. Lander J's reasoning was agreed to by both Carr and Sundberg JJ. As Tamberlin J observed in Djalic ([71]/310) this suggested that their Honours "considered that the Direction accurately (or at least not inaccurately) summarises both the general object of the legislation and the principal purpose of the power to cancel a visa conferred by s 501." Lander J observed (at [104]):

'The object of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. To facilitate this object the Minister has been given a discretion to refuse or cancel a visa where the visa applicant or visa holder does not pass the Character Test. In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it. The powers conferred under section 499 enable directions to be given, in exercising discretions under section 501, for the protection of the Australian community.

2. The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter into or to remain in the community."

90. After quoting the above extract from Direction 21, Lander J then observed:

"105 The definition of a person passing the character test in s 501(6) shows that Parliament intended that persons who have been convicted of relatively serious crime; associate with criminals; have a history including an immediate history of criminal conduct or general conduct indicating bad character; are a significant risk of engaging in criminal conduct or undesirable conduct (s 501(6)(d)), should not be permitted to travel to or remain in Australia. Shortly put, persons who have committed or are likely to commit criminal or other like conduct should not be permitted to travel to or remain in Australia. Because the purpose is to exclude those persons, the matters that are relevant to the exercise of the Minister's discretion will include any fact or circumstance which would suggest that a person of otherwise bad character (as it is defined in the Act) should be allowed to travel to or remain in Australia.

106 Where the applicant has failed to pass the character test because the applicant has a substantial criminal record (as in this case), the seriousness of the offences; the circumstances of the offences for which convictions have been recorded; any mitigating facts or circumstances relating to the convictions; the degree of remorse or contrition of the applicant; the sentencing remarks of the sentencing court; the applicant's history before and after the convictions; the applicant's personal circumstances; the effect of an order under s 501 on the applicant's dependents and his family; the prospect of the applicant's rehabilitation; and the chances of the applicant committing further offences would usually be relevant factors to which the Minister would have regard.

107 In short, any matter that would move the Minister to allow a person of proven bad character (as it defined in the Act) to travel to or remain in Australia, notwithstanding that proven bad character, would be relevant to a decision by the Minister."

91. A Hearing was convened in Brisbane on 28 April and 6 May 2021 and evidence and submissions were received, due to social distancing requirements as a result of the COVID‑19 pandemic, remotely by means of Microsoft Teams.

92. The Applicant was represented by Mr Berg and Ms Hart and the Respondent by Mr Cunynghame. The Tribunal notes that Mr Cunynghame is referred to as "Mr Cunningham" in the transcript of this Hearing. When quoting from the transcript, Mr Cunynghame will be referred to as "Cunningham".

93. The Applicant, who has been in immigration detention since his release from prison in January 2019, appeared via Microsoft Teams throughout the two day Hearing.

94. Apart from the Applicant, the Tribunal received testimony on 6 May 2021 from EYK and HBK.

95. During the course of the Hearing I asked Mr Berg if he wanted the Tribunal to use an acronym for the Applicant and for his wife, daughter and stepdaughter. Mr Berg responded positively to this suggestion (Transcript (Tr.) 6.5.2021 p. 117). Although the Tribunal has not received a formal written application for not publishing the Applicant's name, on 24 September 2021, I directed, pursuant to s 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), that the name of the Applicant be replaced with the pseudonym XGHJ. Further, if any other person's name might lead to the identification of the Applicant and his immediate family, the Tribunal has also used pseudonyms.

96. Leave was given to the parties to provide written closing submissions after the close of the Hearing.

97. The Applicant provided closing submissions (ACS) on 31 May 2021 and a closing reply (AR) on 1 July 2021. The Respondent provided closing submissions (RCS) on 11 June 2021.

98. On 4 October 2019 Deputy President Constance directed, pursuant to s 35(3) of the AAT Act, that the publication or other disclosure of certain confidential information regarding EYK not be published. This material was admitted into evidence as Exhibit 5, subject to the suppression direction of Deputy President Constance.

99. At the close of the Hearing I gave the parties the opportunity to make submissions on the question of whether the confidentiality direction of Deputy President Constance should remain or be replaced for the purposes of the disposition of this matter.

100. Unfortunately, the Tribunal did not receive any submissions from the Applicant, however the Respondent did agree that the confidential information regarding EYK should not be published - RCS paras 30 - 31.

101. The Tribunal agrees with the Respondent that the confidential information should not be published. Further, the Tribunal has not had regard to that information which is included in Exhibit 5. Whilst a further Direction duplicating the one made by Deputy President Constance is not considered necessary, to put this issue to rest, the Tribunal directs that the documentation contained in Exhibit 5 not be published, and the information contained therein is limited to the persons identified in the Direction.

102. As discussed above, a person will not pass the character test if they have a "substantial criminal record" which term is defined to include the circumstance where a person has been sentenced to a term of imprisonment of 12 months or more - s 501(7)(c).

103. It is not disputed that the Applicant was convicted on 31 October 2017 at the Burwood Local Court of both assault occasioning actual bodily harm and the contravention of a prohibition/restriction in an ADVO. On both counts the Applicant was sentenced to imprisonment for 12 months - Exhibit 1 G5 p. 36.

104. It is also not disputed that on 2 February 2018 the Applicant was sentenced to a term of imprisonment for contravention of an ADVO - Exhibit 1 G5 p. 36.

105. It is also not disputed that on 28 September 2018 the Applicant was convicted of contravention of a prohibition/restriction in an ADVO and resisting and assaulting Police. The Applicant was sentenced to a term of imprisonment for 12 months and two conditional release orders of 24 months - Exhibit 3 TB3 p. 131.

106. Both the Applicant and Respondent submitted that the determinative issue for the Tribunal is whether there is another reason why the mandatory cancellation should be revoked - Exhibit 2 para 20, Exhibit 6 para 5.

107. The Tribunal is therefore satisfied that the Applicant has a substantial criminal record (s 501(6)(a)) as defined by s 501(7)(c) as he was sentenced to a term of imprisonment of more than 12 months and that he does not pass the character test.

IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT'S VISA SHOULD BE REVOKED?

108. Subsection 501CA(4) provides for the revocation of the initial decision to cancel a visa, if, inter alia, there is another reason why the original decision should be revoked - s 501CA(4)(b)(ii).

109. In considering whether there is another reason why the cancellation of the Applicant's visa should be revoked, the Tribunal is required to comply with any Directions made by the Minister under s 499 - s 499(2A), see also Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

110. A failure by the Tribunal to comply with the Direction or make a decision based on an incorrect understanding of it, is an error going to the exercise of the Tribunal's jurisdiction - Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141 at [21] per Flick J and Minister for Home Affairs v Stowers [2020] FCA 407 at [21] per Yates J.

111. In this matter Direction No 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) applies.

112. The Direction is intended to provide a framework within which decision-makers approach the task, inter alia, of deciding whether to cancel a non-citizen's visa.

113. It is of relevance to note at the outset, that Direction No 90 is in some significant ways different to Direction No 79. Significantly for this matter, s 8(2) prescribes conduct that constitutes family violence as a primary consideration for decision-makers. The comparable provision in Direction No 79 (s 9) made no reference to family violence. The term "family violence" is defined by s 4(1) as follows:

"family violence means violent, threatening or other behaviour by a person that coerces or control's a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:

(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

(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or

(j) unlawfully depriving the family member, or any member of the family member's family, or his or her liberty."

114. The overarching Principles that guide decision-makers when, inter alia, determining whether to revoke a mandatory cancellation under s 501CA are contained in s 5.2. It should be noted that Principle 5.2(5) makes specific mention of family violence as being, prima facie, a serious matter. It is manifestly clear that the Minister, when making this Direction, was drawing to the attention of decision-makers the serious and harmful effect of family violence and ensuring that this pernicious and destructive conduct was given proper consideration.

"(1) Australia has the 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 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 measurable 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 measurable risk of causing physical harm to the Australian community."

116. The Direction also provides specific guidance on how to exercise the discretion. Relevantly, s 6 provides that a decision maker, informed by the Principles quoted above, must take into account the considerations identified in ss. 8 and 9, where relevant to the decision.

117. Further, s 7 provides guidance on taking the relevant considerations into account.

118. This section provides that primary considerations should generally be given greater weight than the other considerations - s 7(2). Further, one or more primary considerations may outweigh other primary considerations - s 7(3).

119. Before turning to the primary and other considerations, it is important to consider the evaluative task required of a decision-maker. Reference can be made to the following observations of Colvin J in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]:

"The use by the Tribunal of the term 'secondary' indicates that the 'other considerations' are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non-refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Directions 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 other considerations be treated as secondary in all cases. 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."

120. This interpretation is consistent with the observations of the Full Federal Court in Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [34] - [35].

121. Section 8 sets out the four primary considerations in deciding whether to revoke the mandatory cancellation of a non-citizen's visa:

(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

122. The other considerations are set out in s 9 of the Direction, namely:

(i) strength, nature and duration of ties to Australia;

123. Although reorganised, the other considerations set out above are the same as those contained in cl. 10 of Direction No 79.

124. I will consider each of the primary considerations and other considerations in turn.

PRIMARY CONSIDERATION 1 - the protection of the Australian community from criminal or other serious conduct

125. Subsection 8.1 of the Direction provides the following general guidance to a decision-maker when considering the protection of the Australian community:

"(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

(2) Decision-makers should also give consideration 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.

126. As will be noted, whilst s 8.1 outlines broad public policy considerations, s 8.1(2) focuses the attention of a decision-maker on two specific considerations. Each of these will be dealt with below.

127. First, a decision-maker must consider the nature and seriousness of a non-citizen's conduct to date - s 8.1(2)(a). Subparagraph 8.1.1 outlines the following matters that a decision-maker must have regard to:

(a) without limiting the range of conduct that may be considered very serious, the following types of crime and conduct are viewed very seriously by the Australian Government and community:

(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 following types of crime and conduct are considered by the Australian Government and community as serious:

(i) causing a person to enter into or being a party to a forced marriage regardless of whether a conviction or sentence has been imposed;

(ii) crimes committed against vulnerable members of the community or government representatives or officials;

(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent on the decision-maker's opinion;

(iv) a crime committed in immigration detention, during an escape from, or after a non-citizen has escaped, immigration detention or an offence against s 197A of the Act.

(c) subject to the crimes or conduct mentioned in subparagraphs (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

(d) the frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;

(f) whether the non-citizen provided false or misleading information to the Department, including by not disclosing prior criminal offending;

(g) whether the non-citizen re-offended since being formally warned, or since being made otherwise aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status.

128. Second, a decision-maker is require to consider the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct - s 8.1.2.

129. In considering the need to protect the Australian community from harm, decision-makers should have regard to the Government's view that the community's tolerance for any risk of future harm is lower as the seriousness of potential future harm increases. Some conduct, and the consequential harm caused, if repeated, is so serious that any risk it may be repeated is unacceptable - s 8.1.2(1).

130. In assessing the risk posed by the non-citizen to the community, decision-makers must have regard to, cumulatively - s 8.1.2(2):

(a) the nature of 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:

(i) information and evidence on the risk of the non-citizen re-offending; and

(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to the time spent in the community since the most recent offence.

131. As outlined previously, the Applicant has a history of physical assaults involving his first two wives, his step-daughter and New South Wales Police Officers, as well as traffic offences.

132. Attention will now be given to each of the considerations outlined in s 8.1.1.

s. 8.1.1(1)(a) - violent or sexual crimes, violent crimes against women and children and acts of family violence

133. Subparagraph 8.1.1(1)(a) outlines three types of crimes or conduct which are viewed very seriously by the Australian Government and the Australian community. The use of very distinguishes subparagraph 8.1.1(1)(a) from 8.1.1(1)(b). A decision-maker must, accordingly, take into account that an applicant who has committed a crime, or engaged in conduct, of the type outlined in subparagraphs (i) - (iii), has acted in a manner which is viewed very seriously by the Government and the broader community.

134. There is no evidence before the Tribunal that the Applicant has ever been convicted of committing any sexual crimes.

135. The Applicant has a history of committing crimes of violence against members of his family spanning a period of more than 15 years.

136. As set out previously, the Applicant was convicted of assault occasioning actual bodily harm against his first wife in March 2002. That assault was particularly concerning, as his first wife was eight weeks pregnant at the time. It is important to note that the Applicant was intoxicated when he assaulted her. I will deal later with the Applicant's version of events, however for present purposes suffice it to say, the Applicant's first wife stated that the Applicant pulled her out of her car, pushed her against a wall and then punched her to the left side of her face and then punched her again with a closed fist to her left eye and nose - Exhibit 3 TB3 p. 154.

137. The Applicant was also convicted of assaulting his second wife. Although the Tribunal has not been presented with any evidence of a marriage taking place, the Tribunal proceeds on the assumption that the Applicant and his then partner were living together as husband and wife. The contemporaneous Police records suggest that the Applicant assaulted his second wife whilst intoxicated, and the assault was of a particularly violent nature. The Police report suggests that the Applicant kicked his wife, pulled her along the floor by her hair and punched her at least five times to the left side of her head - Exhibit 3 TB3 p. 150. The second wife fled from the apartment and made a complaint to Police.

138. It should also be noted that when Police went to the Applicant's apartment following his second wife's complaint, they found him inside with a screwdriver in one hand - Exhibit 3 TB3 p. 151.

139. Then the Applicant was convicted in August 2017 of assaulting his stepdaughter, HBK, who intervened in an argument between the Applicant and his third wife. Again, the Police records suggest that the Applicant pushed HBK and pinned her against a wall with his hands around her neck and chest. According to contemporary Police reports, the Applicant then pushed HBK into the bathroom punching her in the face and head and causing her mouth to bleed. The Applicant then pushed her onto a bed and held her down. HBK managed to free herself by scratching and kicking the Applicant, whilst, at the same time, EYK intervened by scratching the Applicant on the back. The Police report suggests the Applicant behaved in an extremely aggressive manner and it is fortunate that neither HBK or EYK were seriously injured in the melee that ensued - Exhibit 3 TB3 p. 142.

140. It should be noted that HBK was in high school and aged 16 at the time of this assault, and, accordingly, was a child for the purposes of s 8.1.1(1)(a)(ii). A person is a child for the purposes of s 8.3 of Direction No 90 if they are under 18 years old - s 8.3(2).

141. There is an unfortunate theme that links all of these violent episodes. On each occasion the Applicant was intoxicated. Further, on each occasion the Applicant has taken offence at the words or actions of others, and has responded by spontaneous acts of violence. The acts of violence, in each case, were not a single action, but repeated violent actions, escalating in terms of actual violence. In the case of the Applicant's first and second wives, the violence culminated in him punching them to the head. In the case of the second wife, it also resulted in him kicking her.

142. Accordingly, the Tribunal views these crimes and the Applicant's conduct very seriously, and this weighs against him.

s. 8.1.1(1)(b)(ii) - crimes against government officials in the performance of their duties

143. As set out above, the Applicant violently responded to Police Officers when he was arrested on 20 September 2018. It will be recalled that this was only two months after the Applicant had been released from immigration detention, whilst breaching the terms of his ADVO and in an intoxicated state.

144. The Applicant pushed a Police officer in the chest, and after Police forcibly knocked him to a bed he responded by kicking a Police officer in the chin. Even though he was warned that Police would use Capsicum Spray, the Applicant again kicked at the Police officers. Despite being sprayed, the Applicant continued to resist Police by trying to kick and punch them. So violent and persistent was the Applicant's response to the Police officers performing their duties, that it took four Police officers to gain control of the situation - Exhibit 3 TB3 p. 137.

145. Again, it is very fortunate that the neither the Applicant or the arresting Police officers were injured in what can only be described as an extremely violent altercation.

146. Mr Berg and Ms Hart submitted (Exhibit 7 paras 2 - 3) that the Applicant had only been convicted of a single act of violence against Police as the charge of resisting a Police officer in the execution of duty was not a crime of violence. Rather, it was characterised as "acts of resisting or hindering."

147. Clearly, on the facts outlined, the resistance engaged in by the Applicant was not of a passive kind, such as it could sensibly be characterised as merely hindering. Rather the resistance in question was of a violent and aggressive nature. The Tribunal is satisfied that the crime in question, namely resisting a Police officer, was a crime of violence.

148. Accordingly, the Tribunal takes the Applicant's violent conduct against Police officers, seriously, and this also weighs against him.

149. Subparagraph 8.1.1(1)(c) requires a decision-maker to have regard to the sentence imposed by the courts for the crimes an applicant commits. However, a decision-maker under this subparagraph is not required to consider crimes of a violent nature against women or children or crimes concerning family violence. No doubt, the reason for this is that family violence is separately dealt with by s 8.2.

150. In this matter consideration needs to be given to the sentences imposed for the Applicant's assaulting a Police officer and resisting a Police officer in the execution of that officer's duty.

151. On 28 September 2018 at the Burwood Local Court the Applicant was sentenced for each offence to a Conditional Release Order of 24 months duration commencing on that day and concluding on 27 September 2020. The Order was to be supervised by the Community Corrections Service.

152. The sentence imposed, on the balance, does not suggest that the crimes committed were of the most serious kind. If it were otherwise, then the Tribunal would have expected the Court to impose a substantial custodial sentence.

153. Apart from the domestic violence and Police offences outlined above, the Applicant has been convicted of at least seven driving offences. Those offences include driving whilst disqualified and driving under the influence of alcohol. The nature of these offences has been outlined above.

154. The Respondent contends (Exhibit 2 para 27) that the seriousness of these offences is aggravated by the fact that many were committed while the Applicant was subject to good behaviour bonds. Reliance was placed on the following observations of Senior Member Tavoularis in Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 at [45]:

"...the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant. Indeed laws that protect road users 'go to the essential safety of the community'. Other parts of [the applicant's] criminal history are perhaps more serious than his driving/traffic convictions. But, his failure to understand right from wrong when operating a motor vehicle - be it drinking and driving, driving without a licence, or driving an unregistered vehicle - can only lead me to conclude that this component of his history further confirms the seriousness of his offending and potential risk to the community."

155. While the Applicant's traffic history is discussed in greater detail below, there is a disturbing feature of his offending, be it traffic or otherwise.

156. The Applicant frequently appeared before the Local Court of New South Wales and expressed his remorse for driving whilst disqualified and his preparedness not to repeat his disregard for the traffic laws of New South Wales in general, or his good behaviour bonds in particular. Yet despite his promises to Magistrates of the Local Court, he showed again and again a wilful disregard for the law and the elevation of his own needs above the orders of the Local Court or the safety of the community. Certainly, the Applicant was placed in a very difficult situation due to the fact that he needed to drive to effectively run his business, but no excuses can exculpate his wilful and capricious behaviour.

157. The Tribunal does note that the Applicant's traffic history concluded on 18 December 2014 when he last appeared before the Local Court for driving a motor vehicle whilst disqualified - Exhibit 1 G5 p. 36. The documentation provided to the Tribunal suggests that the Applicant's history of traffic offences spanned the period 2005 - 2014 - Exhibit 1 G5 pp. 36 - 37. It is in the Applicant's favour that his history of traffic offending apparently ended in December 2014 and he has not since appeared before the Local Court for a traffic offence. It cannot be said, then, that there is a trend of increasing seriousness so far as traffic offences are concerned.

158. With respect to the Applicant's history of family violence, it cannot be said that there is a trend of increasing seriousness as each of his offences has involved the use of violence against members of his family. The nature of violence in each case was serious as it involved the Applicant punching females whilst intoxicated, and, in the case of his first wife, whilst she was pregnant.

159. Nonetheless the actions of the Applicant in violently resisting arrest and assaulting Police officers in the execution of their duty when investigating a breach of an ADVO does suggest that the Applicant's violent outbursts were becoming more serious. As previously noted, it was very fortunate that his violent altercation with Police did not result in either he or Police officers suffering serious injury.

s. 8.1.1(1)(e) - cumulative effect of repeated offending

160. This subparagraph draws a decision-maker's attention to those matters where an applicant has been convicted of repeated offending. Clearly this subparagraph does not have relevance where an applicant has been convicted of a single offence, or a series of offences that were committed on a particular day or discrete period of time. The focus of this subparagraph is to ascertain the impact of an applicant's long criminal history whether on particular persons, a unit of society or the broader community.

161. In this matter, the Applicant's history of family violence has led to the breakdown of two marriages and in the case of his third marriage, the disintegration of his family. The Applicant's repeated breaches of traffic laws led to the collapse of his business and his bankruptcy.

162. Clearly, the Applicant's violent offending has had a deleterious impact on his partners, and it is fortunate that his breaches of the traffic laws have not resulted in any traffic accidents or injuries to other persons driving on the public roads of Sydney.

s. 8.1.1(1)(f) - provision of false or misleading information to the Department

163. The Respondent contends (Exhibit 2 p. 8 para 29) that the Applicant provided false and misleading information to the Department by failing to disclose criminal offending on his incoming passenger card on 21 December 2009 when he returned to Australia from Thailand. The Applicant ticked "No" in response to the Question whether he had any criminal convictions - Exhibit 1 G18 p. 87.

164. The Respondent also contends that the Applicant was again misleading in the information he provided to the Department in his personal particulars form when he ticked the "no" box for the Question "are you currently on parole or subject to reporting requirements?". The Respondent contended - Exhibit 2 p. 8 para 29:

"However, the applicant had been placed on a conditional release order for 24 months on 28 September 2018, which was active at the time he completed the form, and which had as conditions that the applicant was to report to a Community Corrections officer no later than seven days from the date of the order, and that he must report to an officer at the times and places so directed."

165. Turning first to the issue of the incoming passenger card, at the first Hearing the Applicant was questioned about his incorrect answer and he stated that he did not remember the conviction.

166. Mr Berg and Ms Hart made the following submission - Exhibit 7 para 8:

"...the Applicant has limited English language capability. The 2002 offence was dealt with by way of a fine and the Applicant did not realise in 2009 that a conviction had been recorded. The Applicant's statement in 2009 was to the best of his understanding and was mistakenly wrong."

167. As the incoming passenger card issue was largely left unaddressed, the Tribunal accepts the submission of Mr Berg and Ms Hart and draws no adverse conclusions against the Applicant.

168. With respect to the personal particulars form, Mr Berg and Ms Hart made these submissions - Exhibit 7 paras 6 -7:

"6. The Conditional Release Order is subject to standard conditions and one additional condition. The standard conditions do not include a reporting requirement. 'Supervision' is mentioned in the additional condition, but it does not include a reporting requirement.

7. The reference to the Applicant's 'no' answer being misleading is not correct. The Applicant is not subject to a reporting requirement condition in the Conditional Release Order."

169. At the Hearing, Mr Berg specifically addressed this issue - Tr. 28.4.2021 p. 13:

"...Now, in fact, at the time the applicant completed the form, he was in detention, and secondly, there's no evidence before the tribunal that he was subject to any reporting requirement at that time. Can I mention, the detention, in case it isn't clear, that it rises almost to absurdity to suggest someone in detention is subject to a reporting requirement..."

170. In response, Mr Cunynghame made these submissions - Tr. 28.4.2021 pp. 18 - 19:

"In my respectful submission the fact of the matter is that the applicant was subject to reporting requirements. I have referred - or we have referred, rather, to page 156 of exhibit 1, which is those obligations. It provides plainly that the offender must appear before the court if called upon to do so, and at any time during the term of the conditional release order. Now, it's, in my respectful submission, beside the point that the applicant was in immigration detention, that simply provides a reason as to why the applicant wouldn't have been able to comply with the order, and steps simply could have been taken with the relevant officers enforcing that order, but he was subject to that order until it was discharged, and it wasn't disclosed in his representations to the government requesting revocation."

171. It is not clear to the Tribunal that in fact there was a reporting requirement in the Conditional Release Order. The Order did require the Applicant to be subject to supervision by a Community Corrections Officer at Burwood Community Corrections District Office. However, nowhere in the Order is there a specific reporting requirement - Exhibit 1 G36 p. 157. It may well be that it follows as a matter of practicality that as part of supervision an element of reporting would follow. However, the Order is silent as to specific reporting requirements.

172. Leaving aside the practical issues of supervision and reporting whilst in immigration detention raised quite properly by Mr Berg, the wording of the Order is such that the answer provided by the Applicant in the personal particulars form was technically correct. In these circumstances no adverse findings can or should be made about the Applicant providing false or misleading information to the Department.

s. 8.1.1(1)(g) -re-offending after being formally warned

173. Apart from warnings from the Bench about the ramifications of further offending with respect to likely sentences imposed, the Applicant was given an official warning in July 2018 by the Department about the ramifications for his visa should he continue to commit criminal offences.

174. When the delegate of the Respondent determined to revoke the initial visa cancellation on 25 July 2018, the following information was specifically given to the Applicant in the letter informing him of the decision - Exhibit 1 G13 p. 68:

"Please note: this decision does not mean that your case cannot be reconsidered again on character grounds in the event of further criminal offending by you."

175. It is manifestly clear, then, that the Applicant was placed on notice of the implications of further offending.

176. This warning was drawn to the Tribunal's attention by the Respondent - Exhibit 2 p. 8 para 30.

177. The fact that the Applicant ignored this warning and reoffended after the revocation of the first mandatory cancellation of his visa is, unfortunately, consistent with his repeated traffic offending despite warnings from the Bench.

178. In summary, the following conclusions can be drawn from the evidence presented to the Tribunal:

(a) the Applicant's offending includes the infliction of physical harm on members of his family. In particular, he has been convicted of assaulting, whilst intoxicated, his first two wives as well as his stepdaughter from his third marriage;

(b) the violent melee with Police officers in 2018 is particularly troubling as the Applicant had only been released from immigration detention for a short period of time and was so serious that it required four Police officers to subdue him;

(c) there is troubling pattern of the Applicant repeatedly driving whilst disqualified, and while intoxicated;

(d) the Applicant's repeated breaching of the traffic laws, despite promises that he would obey those laws, demonstrates a wanton disregard for the law with an attendant burden on Australia's judicial and law enforcement system;

(e) despite receiving a written warning from the Department of the consequences of future offending when his first visa cancellation was revoked, the Applicant continued to offend, and his violent confrontation with Police was most probably the worst of his offending to date as he risked his own health and those of Police officers.

179. The Tribunal agrees with the following submission of the Respondent - Exhibit 2 p. 8 para 31:

"...the applicant's offending is very serious. The applicant's offences involved crimes of family violence against women and he has been sentenced to multiple terms of imprisonment. Further, the cumulative effect of the applicant's violent offending, taken together with his repeat driving offences, reinforces the objective seriousness of his criminal record."

180. The Tribunal concludes that the Applicant's conduct demonstrates a disregard for the criminal and traffic laws of Australia, and the nature of his criminal history and the frequency of his breaches of the traffic laws weigh heavily against the Applicant.

181. As previously explained, a decision-maker is required, when assessing the risk posed to the Australian community by the offending non-citizen, to have regard to, cumulatively - s 8.1.2(2):

(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 available information and evidence on the risk of re-offending and evidence of rehabilitation achieved.

182. As also explained, that assessment is predicated on the Australian community's tolerance for any risk of future harm being lower as the seriousness of the potential harm increases - s 8.1.2(1).

183. Dealing at the outset with potential seriousness of the potential harm, the Respondent made these submissions - Exhibit 2 p. 9 para 34:

"...the Minister contends that the applicant's repeated family violence against women, and the physical and psychological harm that would be caused if he were to reoffend, is sufficiently serious that any likelihood that it may be repeated is unacceptable."

184. Mr Berg and Ms Hart in The Applicant's Statement of Facts, Issues and Contentions (Exhibit 6) also agreed of the seriousness of the harm if the Applicant re-offended - p. 3 para 14:

"...the Australian community regards domestic violence as very serious. Any further reoffending by the applicant is accordingly regarded as very serious harm."

185. The Tribunal agrees with Mr Berg and Ms Hart that, whilst the Applicant's conduct includes very serious offending, "it is not of the most serious kind" - Exhibit 6 p. 3 para 13. Clearly, there are some crimes such as murder, acts of terrorism and sexual assault that are the apex of serious offending. Whilst the Tribunal accepts this, it is nonetheless the case that the Applicant's family violence crimes would be viewed with profound concern by the Australian community.

186. There is a comity of views that the nature of the Applicant's family violence offending, including assaults against women and a child, is very serious. The Tribunal agrees with the Respondent that any repetition of such violence against women or children would be unacceptable to the Australian community. Accordingly, any real or possible risk of the Applicant re-offending would be unacceptable to the Australian community.

187. The first task of the Tribunal is to ascertain the nature of the harm should the Applicant reoffend.

188. When assessing the nature of the harm the Tribunal is required to consider the implications of the Applicant reoffending in a similar way.

189. The Applicant's history of criminal activities is limited to committing acts of family violence, one incident of resisting arrest and assaulting Police and approximately seven traffic offences.

190. Of most concern is the Applicant's history of family violence.

191. Whilst the family violence offences span a period of more than 15 years, it is of concern that each time the Applicant has married, he has subsequently assaulted either his then wife or a member of the family household. In the case of the Applicant's third wife, it has also involved multiple breaches of ADVO's.

192. The Applicant's history of traffic offences is also troubling. He has a history of driving whilst disqualified and driving whilst under the influence of alcohol. The Applicant's actions not only put him at risk of injury or death, but also other road users.

193. Clearly, if the Applicant was released into the community and again re-commenced his history of family violence and traffic offending there would be a danger that members of his household could be subject to violent assault and both himself and other road users would be placed at risk. The Applicant also poses a potential risk to members of the Police Force. Whilst the Applicant is not a tall man and is slightly built, if he was in an intoxicated state and determined to resist arrest, he could pose a danger to those Police officers attempting to enforce the law.

194. In short, the Applicant poses a serious risk to the Australian community should he commit further offences or engage in serious conduct. This weighs against the Applicant.

195. It is therefore important to assess the likelihood of the Applicant actually engaging in further criminal or other serious conduct.

(b) The likelihood of engaging in further criminal or other serious conduct

196. Mr Berg and Ms Hart first made these submissions on behalf of the Applicant - Exhibit 6 p. 3 paras 15 - 17:

"15. Secondly, however, the psychologist's report assesses the Applicant at a 'low risk' of re-offending. It is the lowest category of risk. The psychologist's report on the Applicant is independent and authoritative.

16. Further, the psychologist's report shows the Applicant:

• accepts responsibility for his conduct;
• has insight into his offending and how to not re-offend;
• is suitable for specific rehabilitation to address his problems with alcohol.

17. These considerations are regarded cumulatively to evaluate the risk to the Australian community: There is the very serious nature of future harm. This is balanced against the report which finds the low likelihood of future offending. On balance, the risk to the Australian community is moderate to low."

197. In the ACS additional submissions were made by Mr Berg and Ms Hart:

"16. At the hearing [the Applicant] accepted responsibility for his offending and expressed his remorse. He has shown commitment to rehabilitation and the capacity to rehabilitate. In particular [the Applicant] showed that he:

• Has insight into his alcohol and personal trauma as causes of his offending
• Is motivated to keep and support his family
• Has done volunteer work by way of restitution to the community
• Stopped driving illegally after making the resolution to do so.

17. [The Applicant] is assisted by protective factors. Notably:

• He has a long term commitment to the Full Gospel Church which is an ethical and supportive community;
• He is committed to his family;
• He has found an appropriate psychiatrist, for alcohol relapse prevention;
• His employment plans are appropriate and realistic.

18. At the hearing, [the Applicant] presented as genuine and rehabilitated. This presentation is consistent with the Psychological Assessment Report. The Tribunal should more readily accept the Report's conclusions. In particular, the Report concluded his risk of reoffending is low.

19. The Report also stated 'should he engage in relapse prevention, whereby his risk factors for using alcohol are addressed, it is unlikely that he will engage in criminal conduct.'

20. The risk [the Applicant] poses to the Australian community is low. He has a program in place to engage in relapse prevention. The psychologist's report recognises protective factors and the evidence is that he will engage with those factors."

198. The Respondent, however, contended that the report of Ms Bostock should be afforded little weight, and made these submissions - Exhibit 2 pp. 9 -10 para 35:

"35. The applicant submits that he presents no more than a low to moderate risk of reoffending, relying on the report of psychologist Ms Bostock dated 6 November 2020. However, the Minister submits that little weight should be afforded to that report in circumstances where it suffers from several critical deficiencies. For example:

1. The psychometric testing conducted by Ms Bostock to diagnose the applicant's current conditions was based on self-reporting. In circumstances where the applicant has demonstrated a propensity to deny the seriousness of his offending and to apportion blame to others, the Tribunal can have no confidence in the accuracy of the results of those tests.
2. Ms Bostock's assessment of applicant's risk of reoffending, which she concluded was low, was conducted using the Level of Service/Case Management Inventory (LS/CMI) across eight domains of risk ([53]). However, the intermediate conclusions in respect of several of those domains is fundamentally at odds with the evidence. In respect of family relationships, Ms Bostock concluded the risk was very low notwithstanding that the applicant's most serious offending has been perpetrated against those family members closest to him. In relation to alcohol, the risk was identified as very low as it only took into account the past 12 months and his past alcohol abuse was 'not considered relevant to current assessment of risk'. The applicant's procriminal attitude was also identified as very low on the basis that Ms Bostock considered the applicant had accepted responsibility for his actions. This despite Ms Bostock recording earlier in her report that the applicant denied ever physically assaulting any intimate partner in the context of the 2002 conviction ([22]), and also denied the assault underlying his 2010 conviction and again claimed he was the victim of migration fraud ([37]).

1. Ms Bostock recorded, and accepted, the applicant's indication that he has no connections or family members in Korea who can help him re-settle if he is removed from Australia. This despite earlier recording that the applicant was relieved that his biological daughter had kept in contact with his parents in Korea who assist him in keeping abreast of his daughter's welfare ([30]). This also despite the applicant's evidence that his parents in fact sold their house in Korea, and downsized, in order to support the applicant and his daughter."

199. The Respondent then addressed whether the Applicant had taken responsibility for his offending and whether he was sufficiently rehabilitated such that he posed only a low to moderate risk of further offending - Exhibit 2 pp. 10 - 11 paras 36 - 37:

"36. Rather, what the evidence reveals is that the applicant is yet to take responsibility for his offending. He continues to deny the most serious aspects of his offending and blames others for the charges brought against him, which strongly supports a finding that he presents a significant and ongoing risk of reoffending. In particular, the applicant has variously blamed unidentified employees, a friend of his second wife, and his first wife's brother.

37. Insofar as the applicant contends that his mental health and alcohol abuse have contributed to his offending, the Minister contends that the Tribunal should not be satisfied that those conditions have been sufficiently addressed such as not to continue to present a serious risk of further offending. Further, and more generally, the Minister contends that the Tribunal cannot be satisfied that the applicant is rehabilitated such as to present only a low to moderate risk of further offending. In these respects, the Minister notes the following:

1. the applicant has a lengthy criminal history, dating back to 2002. While he claims that the offending took place at a time when he was in denial of his alcoholism, he continued to offend over a decade and has failed to address his alcohol abuse to date.
2. There is no evidence that the applicant has completed any courses or programs designed to address his drinking problem, which he acknowledges is a core reason for his offending. While the applicant claims that he will address this problem on release, he has provided little to demonstrate this. Further, the claim is undermined by the fact that the applicant has missed consecutive counselling sessions and a psychiatrist appointment while in detention.

1. The applicant claims he will 'never' offend again, demonstrating a lack of insight into his offending and its interrelationship with his untreated drinking issues. That he has attempted to downplay the seriousness of his offending and the repeated breaches of ADVOs also demonstrate a disregard for Australian law and the criminal justice system.

1. Further, the applicant has reoffended notwithstanding that his visa was previously cancelled and he was warned after the cancellation was revoked that it could again be considered for cancellation if he were to reoffend."

200. In assessing the likelihood of the Applicant engaging in further criminal or other serious conduct, the first matter that needs to be considered is the psychological assessment report of Ms Delphine Bostock, Forensic Psychologist of 6 November 2020 - Exhibit 16.

201. Ms Bostock has the requisite qualifications and experience to undertake a professional risk assessment of the Applicant - Exhibit 16 p. 18. Further, Ms Bostock was provided an extensive brief containing key information on the Applicant's history, including his criminal and traffic history - Exhibit 16 pp. 2 - 4.

202. It would appear that Ms Bostock did not interview the Applicant in person but, no doubt due to COVID-19 issues, conducted the interview by telephone - Exhibit 16 p. 4. It would also appear that the interview was conducted without the aid of a Korean interpreter - Exhibit 16 p. 4.

203. When discussing the Applicant's physical and mental health, Ms Bostock referred to a psychological report of 8 October 2019 by Mr Stoker. Ms Bostock observed that Mr Stoker conducted psychometric testing and provided a diagnosis of Major Depressive Disorder and Alcohol Abuse Disorder - Exhibit 16 p. 6 para 14. After noting that Mr Stoker also suggested that the Applicant may suffer from an Autism Spectrum Disorder, Ms Bostock observed - Exhibit 16 pp. 6 - 7 para 15:

"I feel this diagnosis was beyond the scope of a telephone interview where [the Applicant] was reportedly discouraged from providing full response to questioning. I further note that Mr Stoker did not engage the services of an interpreter for his assessment."

204. Quite properly, Ms Bostock points out the limitations of providing an authoritative psychological assessment based on a single interview conducted by telephone and where the patient lacks full command of the English language but does not have the services of an interpreter and where the psychologist has not previously treated the patient. As noted previously, Ms Bostock's own assessment of the Applicant also had some of these limitations.

205. After noting the Applicant's alcohol problems, Ms Bostock noted - Exhibit 16 p. 7 para 19:

"[The Applicant] stated that he has not consumed any alcohol since the index offence in 2018. He stated that he had no intention to drink again; in part because his parents are now aware of the role alcohol has played in his life and actively discourage drinking."

206. Two observations can be made about this statement.

207. First, it is not surprising that the Applicant has not been drinking alcohol since he was arrested in 2018 after assaulting Police. The reason for that is that he has been in custody and immigration detention for almost three years. In short, he has not had the opportunity to access alcohol.

208. Second, it is not clear how the Applicant's parents can play an effective role in his future alcohol consumption. Both parents are elderly and live in South Korea. They have no physical contact with the Applicant and would not be in a position to know on a daily basis whether he was drinking or not.

209. Of more concern is Ms Bostock's account of the Applicant's social and relationship history.

210. With respect to the Applicant's first wife, Ms Bostock observed that he described their relationship as "troubled", said his first wife had a "traumatic background", and that she used alcohol to cope which resulted in "the occasional destruction of property" - Exhibit 16 p. 7 para 21.

211. Of concern was the Applicant's account of his conviction of assault occasioning actual bodily harm on his first wife in March 2002 - Exhibit 16 p. 7 para 22:

"He disagreed with the NSW Police Facts (9/3/2002) that allege he punched his wife. [The Applicant] stated that he was involved in an argument with his wife's brother and that she was accidentally injured when she intervened. [The Applicant] denied ever physically assaulting any intimate partner."

212. If, in fact, Ms Bostock has proceeded on the assumption, based on the Applicant's self-reporting, that he has never physically assaulted any intimate partner, her report would be based on serious false assumptions.

213. Again, the Applicant, when commenting on his relationship with his third wife told Ms Bostock that it was "a loving and respectful relationship." Importantly, the Applicant denied "any physical or verbal abuse in this relationship." - Exhibit 16 p. 8 para 27.

214. This account of the marriage is totally at odds with the numerous Police reports of being called to the marital home after reports of drunken arguments between the Applicant and his third wife. The Applicant's account of a serene, loving and respectful relationship bears little relationship to the accounts of both parties fighting, usually after either or both were drunk. Indeed, at a later point in Ms Bostock's report, she reports the Applicant referring to he and his third wife arguing after he had been drinking alcohol - Exhibit 16 p.10 para 38.

215. It is also disquieting to read of the Applicant's attempt to shift blame to HBK. Ms Bostock provides the following account of what the Applicant said of his stepdaughter - Exhibit 16 pp. 8 - 9 para 28:

"28. When asked to reflect upon his familial relationships, [the Applicant] stated that he wishes he had let his daughters have more independence, noting that the lack of this may have contributed to frustrations at home. He also noted that [HBK] regularly argued with her mother and he was affronted by the use of vulgar language that he felt at times was directed to him. In terms of the quality of their present relationship, [the Applicant] stated that [HBK] appeared to feel guilty about how the situation has unfolded. He stated that there is awkwardness between them now."

216. It is clear from this account that the Applicant places the blame for much of what transpired on his stepdaughter's behaviour and language and suggests that she is now guilty about the consequences of her reporting him to the Police. There is no suggestion of any remorse that he assaulted her.

217. This pattern of blame shifting and downplaying his criminality, again arises in the Applicant's account of his relationship with his second wife. After noting that the Applicant had been convicted of common assault in 2010, Ms Bostock recounted what the Applicant told her - Exhibit 16 p. 10 para 37:

"....[the Applicant] explained that he had formed a relationship with a woman whom he later believed was not genuinely interested in pursuing a relationship with him but rather using him to obtain an Australian visa. [The Applicant] stated that she was of the understanding that if she were to put a claim in for common assault; her visa application would be expedited. He stated that she arranged for her friend to call the police; however, the woman could not be found. [The Applicant] reported that she had returned to Korea. [The Applicant_] denied that he had ever assaulted the victim."_

218. The Applicant's account of both his relationship with his second wife and the circumstances leading to his conviction of common assault are so at variance with the reality of what occurred as to cause serious concern.

219. First, the Applicant seems to deny that he ever married his second wife, and downplays his relationship with her.

220. Second, not only does he deny assaulting his second wife, but impugns her reputation by suggesting that she invented the assault so as to improve her chances of getting a visa. This is again an instance of the Applicant shifting blame from himself to another person, and, in the process, attempting to undermine the credibility of the other person.

221. Ms Bostock reported that the Applicant completed several self-report psychometric measures, including those pertaining to current mood state and alcohol use.

222. The Applicant completed the Depression, Anxiety and Stress Scale (DASS-21; Lovibond & Lovibond, 1995) and scored in the moderate range for depression and anxiety and the mild range for stress - Exhibit 16 pp. 11 - 12 paras 46 - 48.

223. Of most importance, the Applicant underwent a risk assessment. Ms Bostock provided the following explanation of this assessment - Exhibit 16 p. 12 paras 51 - 53:

"51. Risk assessment is a process by which the likelihood of a person committing further offences is determined. This determination is typically based on the evaluation and consideration of two types of risks - historical (static) factors; and dynamic factors. Static risk factors are unlikely to change (e.g. age at first offence) whereas dynamic risk factors are typically considered areas of treatment need (e.g.: poor problem solving skills; use of drugs etc.).

52. Risk assessment is an inherently limited process dependent on the type and quality of information available at the time; as well as sensitive to fluctuation in changes of dynamic factors. Actuarial tools can be used in this process and involve specific calculation of the presence of static factors that are then summed into a total score and place into the broad category range of risk (eg - low, moderate, high) based on comparison to individual or group norms.

53. [The Applicant] was assessed using the Level of Service/Case Management Inventory (LS/CME; Andrews, Bonta & Wormith, 2004). The LS/CMI assessment is a quantitative survey of offender attitudes and situations that provides information about the level of risk/need across eight domains..."

225. Before turning to the conclusions reached by Ms Bostock, some comments can be made about the self-reporting of the Applicant.

226. In the family/marital domain, the Applicant reported that he had a "loving and caring relationship" with his third wife and a "close and loving relationship" with his daughter. He also reported that he had "developed a close relationship" with his stepdaughter and treated her "like his own daughter" - Exhibit 16 p. 13.

227. It will be recalled that earlier in the report the Applicant stated that since his detention there is "an awkwardness" between him and his stepdaughter - Exhibit 16 p. 9 para 28.

228. Further, the Applicant reported that the relationship between himself and his daughter was "strained because she is upset that he continues to support" HBK. In fact he reported that his daughter had left the family home after his detention and was living in a refuge for young people. Ms Bostock stated that the relationship was "strained" and YJK had "distanced herself for a period of time from her father". He is keep abreast of her welfare because "she is now in regular contact with her extended family in Korea" - Exhibit 16 p. 9 para 29. In short, at least at the time of Ms Bostock's report, the Applicant and his daughter were not communicating, she was not visiting him in immigration detention and his only knowledge of her and her welfare was via her communication with the extended family in South Korea. In these circumstances, the Applicant's characterisation of his relationship with his daughter and "close and loving" is, apparently, at odds with the reality he described to Ms Bostock.

229. In the alcohol and drug problem domain, where the qualitative measure is stated to be low risk/need, the evidence relied upon is as follows - Exhibit 16 p. 13:

"The LS/CMI manual stipulates that alcohol use is scored in relation to the past year only. As [the Applicant] has not had access to alcohol for approximately two years; his prior use is not considered relevant to current assessment of risk."

230. A degree of caution is required in accepting the assessment of low risk for this domain. Clearly if alcohol use is scored only for consumption in the previous year a good score would be achieved because, as Ms Bostock noted, the Applicant has not had access to alcohol for two years. If one looked at scoring the Applicant purely in accordance with the metrics prescribed by this Inventory, then alcohol use prior to 12 months would not be relevant, as Ms Bostock noted. However, when looked at from a realistic perspective, the prior consumption of alcohol is clearly relevant. Insofar as this Inventory places arbitrary time limits on consideration of key issues such as alcohol consumption, the qualitative description of the risk is compromised.

231. Finally, in the procriminal attitude/orientation domain, it is noted that the Applicant accepts responsibility for actions and consequences of violations of the law. Further, it is stated that he displayed sensitivity to the needs and feelings of others.

232. It is difficult to reconcile this "evidence" with the Applicant's claim that he had never assaulted his first or second wives and the downplaying and blame shifting he engaged in. Far from accepting responsibility for his actions, the Applicant refused to accept responsibility. Rather than displaying "sensitivity to the needs and feelings of others" he sought to vilify his second wife, undermine the credibility of his first wife and place blame on his stepdaughter. The sensitivity to the needs and feelings of others manifested by the Applicant was selective.

233. From this unsatisfactory factual self-reporting matrix, Ms Bostock concludes that the overall score on the LS/CMI was 9 which placed the Applicant in the low risk of reoffending - Exhibit 16 p. 14 para 54.

234. Appropriately, Ms Bostock made these observations about the alcohol question - Exhibit 16 p. 14 para 55:

"Regarding the assessment of risk of use of alcohol, it is apparent that [the Applicant's] offence history is related to alcohol consumption. Whilst he has maintained a significant period of abstinence, it is noted that this decision has in part been imposed upon him due to incarceration/detention. [The Applicant] maintains that he is no longer motivated to drink alcohol, however this would be best assessed once in the community."

235. The Tribunal agrees with Ms Bostock, and notes that whether the Applicant is sincere in his desire not to again abuse alcohol will only be best assessed once he is back in the community. With that realisation also comes the concomitant risk to the community should he again fall back into past habits.

236. Turning now to the remainder of Ms Bostock's report some further observations need to be made.

237. First, Ms Bostock refers to the assaults perpetrated on the Applicant's first two wives - Exhibit 16 p. 15 para 61.

238. What is disturbing to the Tribunal is the following statement of Ms Bostock:

"He maintains that the victim of the 2002 incident was not his partner".

239. In fact it is not contested that the victim of his 2002 assault was his pregnant wife and the Applicant's continued assertion that he did not assault her demonstrates either a lack of awareness or something more serious.

240. Ms Bostock then recounts with respect to the Applicant's second wife that he "also denied assaulting his partner in the 2010 incident."

241. After recording these statements, Ms Bostock then observed - Exhibit 16 p. 15 para 61:

"The Agreed Facts of these two offences have not been available to me and I cannot independently form an opinion than [the Applicant's] self-report."

242. It is clear to the Tribunal that Ms Bostock's report was based on the Applicant's self‑report of the assaults on his first and second wives. And, as will be set out below, those reports, as apparently accepted by Ms Bostock, were incorrect.

243. Ms Bostock concluded by ascribing the following score for the Applicant's self-reporting - Exhibit 16 p. 14 paras 54 - 55:

"54. [The Applicant's] overall score on the LS/CMI was 9 which placed him in the Low risk of reoffending. His score was below 94.6% of incarcerated male offenders and 71% of community-based male offenders in the North American normative sample.

55. Regarding the assessment of risk of use of alcohol, it is apparent that [the Applicant's] offence history is related to alcohol consumption. Whilst he has maintained a significant period of abstinence, it is noted that this decision has in part been imposed upon him due to incarceration/detention. [The Applicant] maintains that he is no longer motivated to drink alcohol, however this would best be assessed once in the community."

244. The Applicant's drinking history and steps he has taken to deal with his alcohol problem are dealt with below.

245. For the reasons outlined above, the Tribunal does not accept that the score given to the Applicant based on his self-reporting is accurate, as it is predicated on a number of false or incorrect premises.

246. Further, the Tribunal accepts the qualification of the assessment of the risk of use of alcohol outlined by Ms Bostock in paragraph 55.

247. In her conclusions, Ms Bostock refers to the Applicant's convictions for violent offences in 2002, 2010 and 2017 and while noting that the Applicant accepted full responsibility for the 2017 offence and did not dispute the presented facts of what occurred on that evening, she makes the following observations - Exhibit 16 p. 15 para 61:

"[The Applicant] has been convicted of three violent offences in 2002, 2010 and 2017. He maintains that the victim of the 2002 incident was not his partner. He also denied assaulting his partner in the 2010 incident. The Agreed Facts of these two offences have not been available to me and I cannot independently form an opinion other than [the Applicant's] self-report."

248. As previously noted, Ms Bostock's report is based, prima facie, on a version of events for the assaults of 2002 and 2010 which are at odds with the Police reports.

249. Somewhat surprisingly, Ms Bostock concluded that the Applicant accepted responsibility for his criminal conduct - Exhibit 1 p. 15. Certainly, the Applicant accepted responsibility for the 2017 assault, but he explicitly denied responsibility for the assaults on his first two wives.

250. The Tribunal also finds it difficult to accept Ms Bostock's conclusion on the Applicant's risk to the Australian community, particularly to women and children. Ms Bostock observed - Exhibit 16 p. 16 para 64:

"[The Applicant's] criminal history appears to be the product of non-compliance rather than acts of violence directly specifically towards women and children."

251. In fact, the Applicant's non-traffic criminal history is comprised of acts of violence against his first two wives, his step-daughter and members of the New South Wales Police Force.

252. The Respondent contends that the report of Ms Bostock be given no weight - RCS para 5b. Much of this contention is based on the unavailability of Ms Bostock for cross-examination - RCS para 15.

253. In contradistinction, the Applicant's legal representatives contend that the Respondent declined to pay Ms Bostock's professional fee should she attend to be cross-examined - AR paras 25-26.

254. The Tribunal has carefully considered Ms Bostock's report, and the fact that she did not give oral evidence does not result in a finding that her report be given no weight. On the contrary, the Tribunal has found her report to be instructive as it shines a light on the Applicant's awareness or, more correctly, lack of self-awareness of his violent offences against his first two wives.

255. The Respondent made the following submission - RCS para 5:

"...The Minister submits that there remains a significant risk that the applicant will reoffend, potentially causing significant harm to members of the community including the members of his immediate family..."

256. Three reasons were adduced for this submission. The second, dealt with above, was that no weight be given to Ms Bostock's report. The Tribunal does not accept this submission.

257. The first reason, however, was that the Applicant's evidence as to his risk of reoffending with respect to his insight and remorse was said to lack credibility - RCS para 5a.

258. The Respondent drew the Tribunal's attention to the multiple inconsistencies in the accounts the Applicant gave of the assaults on his first two wives and, to a lesser extent, his stepdaughter.

259. The Tribunal's attention was drawn to the evidence that the Applicant gave to the Tribunal at his first Hearing on 14 October 2019. When questioned about the 2002 assault on his first wife, the Applicant first gave this account of what occurred - Exhibit 4 TB30 p. 526:

"The wife's elder brother reported this to the police, that's why. On our moving day the brother came to our place to help us out with the moving but the problem is the brother borrowed money from my wife, cash, many times. That was just the excuses, drug offender, habitual drug offender, the brother. So it started as an argument between me and that brother and then it led into a physical fight and my wife tried to stop us and in the process she fell backwards and she fell on her bottom and she got injured. The brother reported this to the police, like he describe I was - I caused that injury and at that time I didn't speak much English."

260. After putting to the Applicant the Police record of what occurred, the legal representative of the Respondent then put this Question to the Applicant - Exhibit 4 TB30 p. 527:

"MR ESKERIE: You see at the very bottom of that page it says that you were interviewed with the help of a Korean interpreter and you admitted to assaulting her by throwing your wallet and car keys in her face but denied punching her.

INTERPRETER: This can be correct, but I don't know for sure."

261. Subsequently the following exchange occurred - Exhibit 4 TB30 p. 528:

"MR ESKERIE: You pleaded guilty to assaulting your first wife in 2002, that's correct, isn't it?

INTERPRETER: Yes

MR ESKERIE: Now we have three versions of what happened, one of them is what the fact sheet says happened. The second is what you are recorded as having admitted to at the time, which is that you threw your wallet and keys in her face and the third version appears for the first time now, where you say your wife - your ex-wife was intervening and simply fell on her bottom. You're not telling the truth, are you...

INTERPRETER: No

MR ESKERIE: No, what?

INTERPRETER: Yes, that's correct. I pled guilty to the charges, that's correct but the details in the fact sheet, they are incorrect. Not just incorrect, they are totally wrong and I didn't punch. What I describe, they are not included in the document..."

262. It will be seen, then, in October 2019 when the Applicant first appeared before the Tribunal, and after some time in immigration detention, he strongly maintained that he did not physically assault his first wife. The Applicant maintained this version of events a year later when he was interviewed by Ms Bostock, and this fallacious self-reporting underpinned her report and her assessment of the risk of the Applicant reoffending.

263. When the Applicant appeared before the Tribunal on 28 April 2021, less than six months after Ms Bostock issued her report, he gave a different account of the incident involving his first wife.

264. The following exchange occurred between Mr Cunynghame, the Applicant and the Tribunal - Tr. 28.4.2021 pp. 37 - 38:

"MR CUNNINGHAM: Okay. Well, people aren't convicted for having an argument. What is it that you did which led to the criminal conviction?

INTERPRETER: We didn't just argue, but it was something we - I could have avoided...but I had a fight with the brother, so it was my fault that I couldn't control myself and got in rage. So I...and so I am responsible...

MR CUNNINGHAM: But you weren't convicted for any offence relating to fighting with the brother, were you?

INTERPRETER: That's right. In the middle of shoving and pushing...with her brother, I caused bodily harm to my wife and I was convicted...

DEPUTY PRESIDENT: [The Applicant], what did you do to your first wife on that night?

INTERPRETER: Yeah, I threw a wallet I was holding to my wife and so as I physically threw the object to her, that caused a bodily harm and I got convicted for that...

MR CUNNINGHAM: The relevant police fact sheets provide that you pulled her out of the car which caused her to fall on the ground and then proceeded to push her, causing her to hit a wall, and then punched her to the left side of her face. Do you agree with that?

INTERPRETER: Yes, I acknowledge that I did that and I acknowledge that it was...my fault and I am sorry for that."

265. The Applicant also strongly denied at the 2019 Tribunal Hearing that he had assaulted his second wife in 2010. The following exchange occurred - Exhibit 4 TB30 p. 51:

"MR ESKERIE: It says you began throwing her cosmetics and clothes onto the floor. You told her to get out and proceeded to hold her hair with your hand and pulled her along the floor. You punched her to the left side of her head, at least five times.

INTERPRETER: No, I have never punched her...

MR ESKERIE: It says the police arrived and got a five-page notebook statement from the victim.

INTERPRETER: Marks? If I had punched her five times there should be some evidence, marks on her face et cetera.

MR ESKERIE: Well it does she (sic) there were marks on her left forehead area and a bruise on her left hand.

INTERPRETER: I cannot agree with this paragraph."

266. When the Applicant gave evidence in this matter he gave a very different account of what occurred - Tr. 28.4.2021 pp. 38 - 39:

"MR CUNNINGHAM: I was asking you about your conviction for common assault in 2010. What did you do to your second wife which led to that conviction?

INTERPRETER: There was also domestic violence, and it was my fault. We had, I mean, it was for the argument with my second argument after drinking alcohol. I acknowledge that it was my fault and totally unexpectedly at the time, my wife's friend reported it to the police, so that conviction, yes, that led to a conviction.

MR CUNNINGHAM: I understand your evidence, at least to the extent that you're expressing remorse, but I really want to know what it is that you actually did?

INTERPRETER: At the time, I caused a grazing on her face, on my second wife, in her face, by assault and what I'm saying is what I am remorseful about is that instead of just resolving any differences by communication wisely, I relied on assault, you know, induced by alcohol, so that's what I am remorseful about.

MR CUNNINGHAM: Okay, well the police version of events is that you kicked her knee, you took hold of her hair and pulled her along the ground, and then punched her to the left side of her head at least five times. Do you agree with that characterisation of your offending?

INTERPRETER: I accept the, yes, all the things you just mentioned, that, you know, I did and it was my fault and it was my mistake, and I realise that how foolish my actions were and I am greatly regretful for that, and I'm ashamed of that.

MR CUNNINGHAM: I'd put it to you that that doesn't really answer my question. I'm asking whether or not you accept the police version of the facts which I put to you?

DEPUTY PRESIDENT: Mr Cunningham, as I understand it, the interpreter said he said he did. 'I accept all the things you said' is what I understand the interpreter said."

267. The Tribunal is presented with the Applicant giving very different, and conflicting, accounts of the 2002 and 2010 incidents involving his first two wives. When the Applicant was specifically asked at the 2021 Hearing why he gave diverging accounts of the 2010 incident he gave this response - Tr. 28.4.2021 p. 40:

"DEPUTY PRESIDENT...If, [Applicant], you are telling me that you acknowledge you punched your second wife, five times, why did you tell the tribunal in 2019 that you did not punch her?

INTERPRETER: What I said at the time was maybe partly because I couldn't recall the circumstances exactly. Maybe because of the influence of alcohol, but now I, yes, acknowledge that it was a serious offence, and it is a serious offence impacting wider society."

268. Mr Berg made the following submission about the inconsistencies in the Applicant's evidence - AR paras 5, 8 - 15:

"5. The argument against credibility relies on the Applicant giving inconsistent evidence at the previous hearing. The inconsistency is in the Applicant's description of the offending...

8. However, the issue raised by the Respondent is the Applicant's insight and remorse in the present day. The argument does not assist the Tribunal with the issue.

9. The Applicant gave consistent evidence of his insight and remorse.

10. The expert evidence is consistent with the Applicant's. The expert witness is a Psychologist holding the qualification of Master of Psychology (Forensic), University of New South Wales. The witness' expertise will include assessing the credibility of her client.

11. The Respondent seeks to enlarge the argument from inconsistency into a general adverse credibility finding. In effect, the argument submitted is that the Applicant's insight and remorse in 2021 lacks consistency with that in 2019.

12. Or conversely, the argument is that the Applicant can be a credible witness when his insight and remorse presents no differently to 2019. It is a false dichotomy.

13. The argument misconceives the character of insight and remorse. They are qualities the Applicant acquired in his rehabilitation. The common experience is that insight and remorse are attained over time.

14. The statement that the Applicant gave merely self-serving evidence was first made by the Respondent in closing submissions. At the hearing the Applicant was not asked to comment on the statement. He was not asked whether he had genuine insight and remorse in 2021, or was instead giving merely self-serving evidence.

15. This amounts to a denial of procedural fairness and the Tribunal should not make any finding adverse to the Applicant's credibility."

269. The Tribunal is not convinced by Mr Berg's line of reasoning.

270. First, it is not the case, as Mr Berg submitted, that the inconsistencies in the Applicant's version of events surrounding the assault on his first and second wives lies in the description of the offending. As will be recalled, the Applicant told Ms Bostock that "he had never been physically violent with intimate partners" - Exhibit 16 p. 9 para 33. At the 2019 Tribunal Hearing, the Applicant denied punching his first wife and flatly denied punching his second wife. With respect to his second wife, he testified: "No, I have never punched her." - Exhibit 4 TB30 p. 51.

271. The Applicant's description of his offending was to deny any physical assaults altogether. To describe this inconsistency as one of description is not helpful and is incorrect.

272. Next, Mr Berg submits that the issue for the Tribunal is the Applicant's current insight and remorse. The Tribunal agrees with this submission, but in order to evaluate the Applicant's current insight and true remorse it is critical to look at what previously claimed occurred in 2002 and 2010.

273. Mr Berg draws the Tribunal's attention to the report of Ms Bostock. As previously noted, Ms Bostock relied significantly on the self-reporting of the Applicant. That self-reporting, at least as it relates to the assaults of 2002 and 2010, is at odds with his testimony before this Tribunal. To that extent, the reliance that can be placed on the conclusions drawn by Ms Bostock with respect to the likelihood of the Applicant reoffending, is less than it otherwise would have been.

274. It is submitted, that the Applicant has acquired insight and remorse during his rehabilitation whilst in immigration detention. That may be case for many persons, but what the Tribunal finds difficult to appreciate, is why the Applicant as late as October/November 2020 would deny responsibility for assaulting his first two wives (as reported to Ms Bostock), and yet six months later would accept responsibility. By the time the Applicant was interviewed by Ms Bostock he had been in immigration detention for almost two years.

275. This necessarily leads to the views formed by the Tribunal of the Applicant's testimony. The Tribunal was not convinced by the Applicant's testimony that he was remorseful or had gained true insight into his offending. The Applicant's testimony was, at times, formulaic and lacked conviction. The Tribunal formed the view, independently of any submissions of the Respondent, that the Applicant made patently self-serving statements about his remorse for the assaults he perpetrated on his first two wives.

276. As previously noted, there is a strong link between the Applicant's offending and his consumption of alcohol. In a Statutory Declaration deposed on 6 September 2019 at Villawood Immigration Detention Centre, the Applicant dealt with his alcohol dependency as follows - Exhibit 3 TB11 pp. 288 - 289:

"46. I use to drink to relax and unwind. I had a lot of stress with work and would relax with alcohol after work. Then around 2005, when I was caught drink driving, I started to realise that I was no longer a social drinker instead I was a heavy drinker. It was common for me to pass out because I would consume so much. I never saw myself as alcoholic. I was in denial.

47. Drinking has also brought depression. I was diagnosed in 2009 by a psychologist.

48. Since the assault on my stepdaughter I know that I am an alcoholic.

49. I couldn't get any treatment or courses in jail because I was in for too short or I was moved. At Villawood detention centre I have sought help from a psychologist. In need more help.

50. I have contacted the following agencies to get help:

• William Booth house city area
• Salvation Army 100 Boyce Rd Maroubra
• Canterbury Rehab
• Croydon Rehab
• Burwood St John's
• Foundation house
• ADF
• Waverley drug and alcohol centre
• Arden centreadmin@ardencentre.com

51. I have contacted these places to get help because I know my life now depends on it. In the best case I get my visa back, if I don't get help, I will be risking my family and life in Australia. I can't do that. [YJK], my wife and stepdaughter deserve better than that."

277. As will be seen from this statement, the Applicant did not actively seek assistance to deal with his alcohol dependency prior to his final incarceration and placement in immigration detention.

278. In her report, Ms Bostock noted that the Applicant informed her that "he has contacted several agencies across Sydney to seek help for his alcohol use." - Exhibit 16 p. 7 para 19.

279. Ms Bostock also noted that the Applicant acknowledged "alcohol was a major contributing factor in his offending" -Exhibit 16 p. 11 para 44. In turn, Ms Bostock opined that "it is clear that alcohol has been a significant dynamic risk factor in his offending"- Exhibit 16 p. 15 para 63.

280. Of concern to the Tribunal is Ms Bostock's acknowledgment that the Applicant "has never engaged in professional help to address this issue..." - Exhibit 16 p. 15 para 63.

281. Although Ms Bostock noted that the Applicant was now willing to seek such assistance she also noted that the Applicant - Exhibit 16 p. 14 para 55:

"maintains that he is no longer motivated to drink alcohol, however this would be best assessed once in the community."

282. The Tribunal is concerned that the Applicant has not actually undertaken any courses designed to minimise the risk of him reverting to his previous drinking habits. Further, the Tribunal is concerned of the risk of the Applicant reverting to his previous drinking habit once he is back in the community. That is a risk that the community should not be expected to bear.

283. The Respondent contends that there remains a significant risk that the Applicant will reoffend, potentially causing significant harm to both his family and the broader community. It is also contended that that the harm caused by such reoffending is so serious, that even a low risk of similar conduct, particularly against women, is unacceptable - Exhibit 2 paras 38 - 39.

284. The Tribunal is in broad agreement with this submission of the Respondent.

285. The history of the Applicant as previously outlined, does not support the optimistic assessment of Ms Bostock. The Tribunal formed the view that the Applicant is not as remorseful as Ms Bostock opined. Assessing the degree of a person's remorse is an inherently subjective exercise and largely dependent on the subject of the assessment expressing their feelings in a truthful and open manner. In this matter, Ms Bostock's assessment of the Applicant was predicated, to a degree, on his self-reporting of the circumstances leading to the assault on his first two wives. The accounts he gave to Ms Bostock were recanted when the Applicant gave testimony to the Tribunal in 2021. The Tribunal formed the opinion, having closely observed the Applicant give evidence, that he was not a contrite and remorseful individual.

286. The history of the Applicant is one of a cycle of him offending, expressing remorse and contrition and then reoffending. No doubt alcohol and money issues were key drivers to this cycle of criminality. Further, the Tribunal has no reason to doubt that, at times, the Applicant was indeed sorry for his actions. However, the Tribunal is faced with a lengthy history of repeated breaches of the traffic laws of New South Wales and of assaults on members of his family, and, in particular quite brutal assaults on his first two wives. Further, when the Applicant first appeared before the Tribunal in 2019 he falsely claimed under oath that he did not assault his first two wives and engaged in an exercise of blame shifting and blame minimisation. The Tribunal is not convinced that the Applicant is truly contrite, but, rather gave testimony before this Tribunal that was designed to convince me that he now had the self-awareness and remorse that would enable him to successful reintegrate into the community.

287. The Tribunal has formed the view that there is at least a medium risk, and possibly a significant risk, to the Australian community of the Applicant engaging in further criminal or other serious conduct if he were to be released back into society. That risk includes, but is not limited to, the commission of acts of violence against members of his family.

288. In consideration of all of the evidence and each of the relevant factors contained in the Direction, the Tribunal finds that Primary Consideration 1 weighs heavily against the Applicant.

PRIMARY CONSIDERATION 2: WHETHER THE CONDUCT ENGAGED IN CONSTITUTED FAMILY VIOLENCE

289. Subparagraph 8.2(1) highlights the Government's serious concerns about conferring on non-citizens who engage in family violence the privilege of remaining in Australia. Those concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.

290. This consideration is relevant where the non-citizen has, inter alia, been found guilty of an offence that involves family violence and/or there is information or evidence from independent and authoritative sources indicating that the non-citizen has been involved in the perpetration of family violence, and in being considered under ss 501 or 501CA has been afforded procedural fairness - s 8.2(2).

291. It will be noted that s 8.2(2) refers to a non-citizen not only being convicted of an offence involving family violence, but also where there is evidence or information from an independent and authoritative source indicating that a non-citizen has perpetrated acts of family violence. In short, the Tribunal's mandate when assessing family violence pursuant to s 8.2 is not limited to evidence of criminal convictions. Whilst each matter must be evaluated on the basis of the evidence presented, it would be open in certain circumstances for the Tribunal to consider admissions made by a non-citizen to Police or to medical experts or, for example, evidence of acts as displayed on CCTV footage. The issue is whether, in the opinion of the presiding Member, the evidence of family violence is independent and authoritative - see Bennett and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1462 at [162].

292. In considering the seriousness of the family violence engaged in by the non-citizen, s 8.2(3) prescribes the following factors, where relevant:

"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;

1. rehabilitation achieved at time of decision since the person's last known act of family violence, including:
   1. the extent to which the person accepts responsibility for their family violence related conduct;
   2. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);

iii. efforts to address factors which contributed to their conduct; and

1. 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."

293. Mr Berg correctly submits (AR para 34) that Direction No 90 does not require the consideration to weigh against the Applicant. As he pointed out, in some circumstances the consideration can weigh minimally in favour of an applicant. In that regard the Tribunal was referred to Viljoen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1252.

294. In that matter the Tribunal made the following observations:

"61. The Applicant has expressed deep remorse for his conduct and accepts responsibility for his actions. The Applicant states that he now has an insight into the reasons giving rise to his violent actions. The Applicant has undertaken courses directed to anger management, domestic abuse and domestic violence. The Applicant has informed the Tribunal that he now appreciates the necessity to conduct himself in a manner that does not result in violence and is aware of the necessity to control himself when placed in a situation of potential conflict.

62. The Tribunal found the Applicant to be a truthful witness. The Applicant accepted responsibility for his violent conduct. The Tribunal accepts that he understands the impact of his behaviour on Ms X and is satisfied that he has made efforts to address factors which contributed to his conduct. The convictions and sentence appear to have deeply impressed upon the Applicant the necessity to avoid any criminal conduct in the future. The Applicant also understands the seriousness of his conduct and the necessity to avoid family violence...

63. The Tribunal finds that this consideration weighs minimally in favour of the Applicant, given the extent to which the Applicant accepts responsibility for his conduct, understands the impact of his behaviour, and hie rehabilitative efforts to address that behaviour."

295. Mr Berg contends (AR para 35) that the observations in para 63 quoted above apply equally to the Applicant. For the reasons outlined below, the Tribunal does not agree with this submission.

296. Mr Berg and Ms Hart made the following submissions - ACS paras 23 - 26:

"23. Ministerial Direction No. 90 defines family violence, it means: 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.

24. The Tribunal heard evidence that [the Applicant] might have thrown a mobile phone and had broken a computer. These actions happened during an argument. It did not appear in the evidence that [the Applicant] attempted to coerce or control a family member, or cause a family member to be fearful.

25. At the hearing, as noted [the Applicant] presented as rehabilitated from family violence. This presentation is consistent with the Psychological Assessment Report. In terms of Ministerial Direction No. 90:

• In oral evidence, [the Applicant] accepted full responsibility for his family violence related conduct;
• [The Applicant] showed profound understanding of the impact of his behaviour on the victims and witness to the behaviour. He spoke of the impact of lasting psychological harm;
• [The Applicant] showed his substantial efforts to address the contributing factors.

26. The rehabilitation by [the Applicant] should be given appropriate weight in his favour. This consideration should have neutral weight."

297. The threshold question is whether the Applicant has committed an act or acts of family violence.

298. "Family violence" is defined in s 4(1) of Direction No 90 to include, inter alia:

(b) intentionally damaging or destroying property; and

(c) unlawfully depriving a family member his or her liberty.

299. The Applicant admitted during his evidence that he had physically assaulted his first and second wives and his stepdaughter. Further, he also admitted to breaking a computer. The Applicant's assault on his second wife also included depriving her of her liberty by locking her in a bedroom.

300. The Tribunal is satisfied that the Applicant has committed acts of family violence against members of his family.

301. The Applicant has been convicted of family violence offences on three occasions: 2002, 2010 and 2017.

302. Insofar as the three offences were committed over a 15 year period, and were each separated by an interval of seven and eight years, it cannot be said the Applicant has frequently committed acts of family violence. In this regard, the Tribunal agrees with the submissions of Mr Berg - Tr. 28.4.2021 p. 15.

303. However, even though the Applicant has only been convicted of three counts of assaulting family members, he has repeatedly breached domestic violence Court orders.

304. It also cannot be said that there is a trend of increasing seriousness. Each of the offences are similar. On each occasion, whilst intoxicated, the Applicant has physically assaulted (including repeated punching) members of his family. On each occasion the victim was a female, and in the case of his first wife, whilst she was pregnant.

Cumulative effect of repeated acts of family violence

305. The Tribunal agrees with Mr Berg that what is contemplated by the "cumulative effect" of repeated acts of family violence is somewhat opaque - Tr. 28.4.2021 p. 15. However, a common-sense interpretation is that the Tribunal is required to assess and weigh the impact of the totality of the Applicant's family violence on both the victims of that violence, other members of his family and any other persons who may have been affected by it. In short, when looked at holistically, what impact has all of the Applicant's family violence had on his immediate family and the broader community.

306. The Tribunal has not been presented with evidence of the impact of the assaults on the Applicant's first two wives.

307. It is clear, however, that the Applicant's assault on his second wife had the effect of ending their marriage. The Applicant's first marriage also collapsed, however it did last for a few years after the assault.

308. It is also clear that the Applicant's assault of his stepdaughter has resulted in the breakup of his family. In his Statutory Declaration of 22 March 2018, the Applicant deposed - Exhibit 2 G22 p. 107 para 21:

"I am especially concerned for my two children. Because of my careless actions, they are experiencing immense emotional stress, which no child should go through."

309. YJK left the family home because she was upset with her stepsister HBK for contacting the Police. She lives, it is said, in a refuge and while still attending the same school as HBK will not speak to her - Exhibit 3 TB9 p. 272 para 17.

310. The Applicant's third wife has suffered financially since the Applicant's detention. She deposed that she was suffering financially, and did not have any income for two or three months until she obtained a job as a part-time cleaner. Nonetheless the income she earned was insufficient and due to a weak shoulder, she found it difficult to do manual cleaning work - Exhibit 1 G23 p. 112 paras 17 - 19. EYK had a shoulder operation in South Korea in June 2019 and is now unable to work - Exhibit 3 TB 9 p. 271 para 12.

311. As the Tribunal did not receive oral evidence from YJK, it is difficult to ascertain how she is currently living. However, insofar as she is living in a refuge, it is likely that her life is difficult and stressful and to be left alone whilst still a teenager would be for most teenagers a traumatic circumstance. In a Statutory Declaration of 5 March 2021, YJK deposed to her love for her father and the mental anguish she is going through - Exhibit 12 p. 4 para 32:

"I cannot talk about what happened in the last few years, to states this sentence down that took me days to put them together; I have been struggling emotionally to think of my father in detention and being deported. I don't know what to do or to say to make an effort for this process and help myself comfortable mentally. I completed high school, got no closed-friend, and was alone in this battle; I cannot do it anymore."

312. Despite this expression of love, it would appear that YJK cut off contact with her father whilst he has been in immigration detention, and his knowledge of her well-being is based on her contact with his parents in South Korea - Exhibit 17, notes by Dr Lienert, Psychiatrist, 30.7.2020 p. 2/98.

313. The Applicant informed a psychiatrist whilst in Immigration Detention that his daughter was angry with for keeping in contact with his third wife and that she had cut off all contact with him and would not respond to his calls and messages. Further, the Applicant told the psychiatrist that his daughter had engaged a lawyer who informed his legal representative that she did not want contact with her father - Exhibit 17 p. 29/98. These notes were made on 5 September 2019, and it may be that in the time between then and YJK's Statutory Declaration of 5 March 2021, her feelings towards her father softened.

314. It is reasonable to conclude, that the cumulative effect of the Applicant's offending has not only resulted in immediate physical harm to his victims, but also longer term mental and financial harm. The effect of the family violence perpetrated has been the destruction or dislocation of three relationships.

315. EYK has repeatedly stated that she supports the Applicant, misses him, continues to love him and wants him released from detention and to return to the family home - e.g. Exhibit 1 G23 p. 112 paras 16 - 26.

316. It is clear that the desire of both EYK and HBK for the Applicant to be released from detention is also based on the realisation that without his financial support it will be difficult for EYK to remain in Australia. As EYK deposed - Exhibit 1 G23 p. 112 paras 20 - 21:

"20. If my husband gets deported, it will be very difficult for me to remain in Australia.

21. Without my husband's income, I will not have the financial capacity to remain in Australia to take care of my children."

317. HBK also deposed that she is unable to go to University without the Applicant's financial support -Exhibit 10 p. 4 para 36:

"I want to come back to University to keep [achieving] my goal with my complete family. Without my father, I afraid that I would not have any chance to do so."

318. In summary, the cumulative effect of the Applicant's family violence has been to bring physical harm, mental torment and financial distress on family members. The emotional damage caused to his daughter, YJK, is particularly sad and she is an unfortunate victim of his repeated transgressions. The financial and emotional distress that both EYK and HBK are experiencing is also tragic.

319. The Tribunal is required to consider the rehabilitation achieved to date since the Applicant's last known act of family violence which in this instance was his assault of HBK in 2017.

320. The first measure of rehabilitation prescribed in Direction No 90 is the extent to which the Applicant has accepted responsibility for their family violence related conduct.

321. The Tribunal notes that the Applicant accepted at the Hearing of 28 April 2021 responsibility for his acts of family violence and expressed remorse for those crimes. The following extract from an exchange between Mr Berg and the Applicant is illustrative of this - Tr. 28.4.2021 pp. 22 - 23:

"MR BERG: That paragraph ends with the sentence, '[the Applicant] denied ever physically assaulting any intimate partner.' Do you have anything to say about that paragraph?

INTERPRETER: I said I denied those in order to just to protect myself or defend myself. And there was incorrect aspect in the police fact sheet. So, that just - I had to sort of or I used that word because - you know, so an effort to correct those mistakes or errors in the police fact sheet. I admit that all the accusations are - and - and all the acts and I regret that, I am remorseful for all the wrong things I did. That's all I want to say, so if you have any further questions go ahead, please.

MR BERG: [The Applicant] do you deny every physically assaulting any intimate partner?

INTERPRETER: No, I accept that or acknowledge that all those accusations were correct and I mean I acknowledge that I did that and acknowledge that I did the wrong, and - so, what I'm saying is I am remorseful for the wrong things that I did. And - sorry, just one last sentence I forgot to interpret. Now, I can say that the way of thinking at present is different from my past....but now I want to say that I am responsible for all the actions and what has happened. And I want to say that I have changed since. So, I will take responsible for my actions."

322. The Applicant also expressed remorse about the impact that his actions had on his family, particularly his daughter and stepdaughter - Tr. 28.4.2021 pp. 30 - 31:

"MR BERG: Has your church or friends given you advice?

INTERPRETER: Yes, they have.

MR BERG: What advice?

INTERPRETER: They gave me advice which made me realise that it wasn't a problem only affecting me, but I realised that how much it would affect my two daughters who are in their teens, going through puberty. And my problems would - sorry - how my actions would affect their future because of their bad memories they might have emotional and psychological problems. So, I have realised that - yes, that the pains I have caused is very serious one. So, ultimately this problems are not affecting only me but to[o] many people around me..."

323. As previously observed, the remorse and understanding manifested by the Applicant during his testimony is in stark contrast to the evidence he gave at the previous Tribunal Hearing and the account of his behaviour given to Ms Bostock late last year. The Tribunal has doubts about the genuineness of the Applicant's evidence. However, the Tribunal accepts that the Applicant did at the 2021 Hearing express explicitly and repeatedly remorse and contrition for his family violence and took responsibility for his crimes.

324. The next measure is the extent to which the Applicant understands the impact of his behaviour on the abused and the witness of that abuse.

325. As quoted immediately above, the Applicant testified that he now understood the psychological damage his family violence had on his daughter and stepdaughter. To that extent, the Tribunal accepts that the Applicant has now arrived at a level of realisation about the damage his crimes have had on members of his immediate family.

326. Direction No 90 also requires the Tribunal to consider efforts made by the Applicant to address factors which contributed to his conduct.

327. Mr Berg and Ms Hart submitted (ACS para 25) that the Applicant had made substantial efforts to address the contributing factors. The Tribunal, however, is not satisfied that the evidence supports that proposition.

328. A major, if not the major, contributor to the Applicant's history of family violence has been misuse of alcohol. This misuse is compounded by the Applicant's underlying mental health issues.

329. When the Applicant underwent psychiatric treatment and assessment in South Korea in June 1997 when he was 23 years old, the treating psychiatrist noted that the Applicant had then been drinking alcohol for more than two years and had a major depressive disorder, with psychotic symptoms. The treating doctor diagnosed him with "alcoholism" - Exhibit 18.3.

330. Fortunately, whilst the Applicant has been in immigration detention, he has been seen regularly by a Counsellor as well as a psychiatrist.

331. The Applicant was first examined and assessed by Dr David Lienert, Psychiatrist, on 10 May 2018.

332. The Consultation Note of Dr Lienert of 10 May 2018 provides the following information - Exhibit 17 10.5.2018 p. 84/98:

"Treated 7 - 8 years ago for depression via a GP, prescribed Avanza and Seroquel for about 2 months, no psychological treatment, states he was stressed at the time, was also drinking about 2 bottles of wine a night at this time."

333. Two weeks after this consultation, Dr Lienert again assessed the Applicant and made these observations - Exhibit 17, 24.5.2018 p. 81/98:

"States that he found 'counselling' last time we met helpful, 2 days later was transferred to Mackenzie, states new environment is much better and he has been feeling much more positive, medication was not started.

Currently reports feeling more relaxed, has been attending groups and reports enjoying the same, not as stressed in new environment, sleep continues to be an issue...

Much improved from my last interview, relaxed with brighter effect, more reactive, no psychosis or suicidal ideation, insight intact...

Improved mental health with change of environment. Picture more in keeping with adjustment disorder than major depression. Risk remains low."

334. By the time Dr Lienert treated the Applicant on 5 September 2019 he had relapsed. He reported the financial and medical problems experienced by his third wife and the fact that his daughter had cut off contact with him. Dr Lienert opined - Exhibit 17 p. 29/98:

"Relapse of major depression in the context of further family stress. This is now his third episode of depression. Moderate intensity. Non-melancholic and not psychotic."

335. Dr Lienert again examined the Applicant on 2 October 2019 and reported that he was much better. By this time he was regularly exercising, his third wife was receiving Centrelink payments and his depressive symptoms had improved - Exhibit 17 p. 25/98.

336. The last reported consultation with Dr Lienert was on 30 July 2020, when the Applicant had his 18 month review. The Applicant presented as coping better than previously, with no current signs of mental illness. He reported that he was training every day - Exhibit 17 p. 2/98.

337. The Tribunal is satisfied that the Applicant has received regular mental health counselling as well as being treated and assessed by a psychiatrist. Insofar as the Applicant's mental health issues have been a factor in his offending, his ongoing mental health treatment whilst in immigration detention, weighs in his favour.

338. The medical records presented to the Tribunal do not disclose whether the Applicant was undergoing treatment for his alcohol related problems.

339. At the Hearing, the Applicant claimed that he had completed an online program designed to address alcohol abuse. The following exchange occurred - Tr. 28.4.2021 pp. 23 - 24:

"MR BERG: ...have you done any courses to address alcohol use?

INTERPRETER: Yes, I attended online program called 'Drug and Alcohol Abuse'...which was provided by Bankstown and Canterbury Council together with immigration. And I obtained a certificate.

MR BERG: Is that certificate showing you finished the course?

INTERPRETER: Yes at completing 18 hours of the over the course of four days. I participated in the course and also at the end I took a test. Of which I have obtained a certificate.

MR BERG:...can you tell us what you learnt in this course?...

INTERPRETER: The course I did consist of 11 sections which a section has a title and has its own different learning programs. And there was a section how does alcohol - it's something to do with domestic violence and alcohol use and misuse can....family violence. So it talks about cause and preventative measures. And especially one thing which impressed me most was this domestic violence issues arising by the alcohol abuse or use, can be resolved through communications with...the family members."

340. At this point Mr Cunynghame drew the Tribunal's attention to the fact that there was no evidence, apart from the Applicant's testimony, that he had completed this course. Mr Berg confirmed that this was the case - Tr. 28.4.2021 p. 24.

341. The Tribunal proceeds on the basis that the Applicant has undertaken a course which dealt with alcohol abuse and has benefited from that course. However, without further information about the course and, in particular, the Applicant's participation in it, less weight can be given to the course than would otherwise be the case. I also note that Mr Cunynghame was "surprised" by the Applicant's testimony and was placed in a disadvantageous position. The concerns Mr Cunynghame raised about procedural fairness, or the lack thereof, were taken into account by the Tribunal.

342. Further, as set out above, the Applicant claimed in his Statutory Declaration of 6 September 2019 that he had contacted nine agencies to seek help for his alcoholism. Yet despite contacting all of these agencies some time ago, it would appear that by the time of the Hearing in April 2021, he had not actually undertaken any courses with any of the named agencies - Exhibit 3 TB11 para 50.

343. In his Statutory Declaration of 6 September 2019, the Applicant deposed that he was "diagnosed" by a psychologist in 2009 for alcohol induced depression - Exhibit 3 TB11 para 47. Under cross-examination, the Applicant testified that he went to a clinic five or six times and received professional advice about reducing or ceasing drinking alcohol Tr. 6.5.2021 p. 67.

344. Unfortunately, the Tribunal has been provided with no other information about the nature of the treatment the Applicant received, who provided it or the content of the course he undertook. The Tribunal, however, proceeds on the assumption that the Applicant did receive professional treatment for his alcohol dependency.

345. It should be noted, in passing, that the Applicant stated in his Personal Circumstances Form that he had not completed at that time any courses designed to avoid further offending but he stated that he would "seek help in relation to my alcohol abuse problem" - Exhibit 1 G21 p. 103.

346. In summary, although the Applicant has had the benefit of receiving mental health counselling whilst in immigration detention, and, it would appear, has undertaken two courses to deal with his alcoholism, he has not achieved, as the Respondent submits (Exhibit 2 para 41c) the level of rehabilitation as might be able to seriously address his history of family violence offending. The Tribunal is satisfied that the Applicant has made some efforts in this regard, but having regard to the fact that the Applicant has been diagnosed with alcohol problems for more than two decades, one online course of four days would be unlikely to provide anywhere near the panacea for dealing with his alcohol abuse problems. Further, the fact that the Applicant received professional advice to deal with his alcohol abuse in 2009, but continued to abuse alcohol on a regular basis thereafter, gives the Tribunal little confidence that the Applicant would be able to constrain his alcohol dependency on release from immigration detention.

347. As was set out above, the Applicant was warned on a number of occasions of the consequences of further offending by judicial officers when he was being sentenced.

348. The evidence presented includes the sentencing remarks of Magistrate Trad on 31 October 2017 (Exhibit 1 G6 p. 38) and 2 February 2018 (Exhibit 1 G7 pp. 42 - 45), Magistrate Denes on 28 September 2018 (Exhibit 1 G8 pp. 46 - 55) and Judge Culver on 28 October 2018 (Exhibit 1 G9 pp. 56 - 57).

349. Of particular concern is the fact that while the Applicant's visa was originally cancelled on 19 February 2018, that cancellation was revoked on 25 July 2018. In the letter notifying the Applicant of the revocation was a specific warning which was set out in bold type - Exhibit 1 G13 p. 68:

"Please note: this decision does not mean that your case cannot be reconsidered again on character grounds in the event of further criminal offending by you."

350. Yet only a short time later the Applicant again reoffended.

351. The fact that the Applicant continued to reoffend after being warned of the consequences of his criminal conduct, weighs against him.

352. The Applicant acknowledged at the Hearing that he had engaged in acts of family violence and expressed remorse for his actions and for the potential consequences, physical, emotional and financial of those crimes on the victims and other members of his family.

353. The Tribunal also notes that the Applicant has received mental health treatment since he has been in immigration detention and has undertaken a course designed to deal with his alcohol dependency.

354. Nonetheless, the Tribunal is not satisfied that the remorse expressed by the Applicant is entirely genuine and it remains the case that the Applicant continues to suffer from intermittent depression and related mental health issues. Undertaking one online course of four days for alcoholism, although a constructive start, is, of itself, not likely to achieve the goal of curing the Applicant's alcohol dependency.

355. The fact that the Applicant received an explicit warning of the consequences of further reoffending, but still reoffended, is a matter of concern.

356. Taking all matters into consideration, family violence is viewed seriously by the Tribunal, and this consideration weighs heavily against revocation.

PRIMARY CONSIDERATION 3: THE BEST INTERSTS OF MINOR CHILDREN IN AUSTRALIA

357. Section 8.3(1) provides that decision-makers must make a determination about whether revocation is in the best interests of a child affected by the decision, and s 8.3(3) further provides if there are two or more children, the best interests of each child must be given individual consideration to the extent that their interests may differ.

358. This Consideration only applies to children aged 18 years or younger at the time when the decision is expected to be made - s. 8.3(2).

359. In considering the best interests of the child, the following factors must be considered, where relevant - s. 8.3(4):

(a) The nature and duration of the relationship between the child and the non-citizen with less weight being given to a non-parental relationship, where there is no existing relationship, where there are long periods of absence or limited meaningful contact;

(b) The extent to which the non-citizen is likely to play a positive parental role in the future;

(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 any separation from the non-citizen would have on the child;

(e) Whether there are other persons who already fulfil a parental role in relation to 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 whether the non-citizen has abused or neglected the child; and

(h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

360. The Tribunal received evidence about the interests of four children: KB, ABCK, TK and SK.

361. The first two are the children of Ms TVN. TVN has provided the Tribunal with a Statutory Declaration dated 4 March 2021 - Exhibit 15.

362. The second two are the children of Ms BJH who provided a short statement dated 2 May 2021 (Exhibit 21) and a collection of family photographs (Exhibit 22).

363. It should be noted that both the Applicant's daughter and stepdaughter are more than 16 years of age and therefore cannot be considered under this primary consideration.

364. Consideration will now be given to the best interests of the four children.

365. Ms TVN deposed that she had known the Applicant for nine years and met through his Church. She has two children from two marriages.

366. Her first child, KB, is 15 years old and was born deaf. He was undergoing medical treatment for cochlear implants and she described him as "vulnerable and disadvantaged" not being able to participate in ordinary activities and with possible autism.

367. TVN's second child was born in 2011 but her second husband was a violent man who punched her and stabbed her in her thigh which required to remain in Liverpool Hospital for four days. He also attacked KB hitting him on the head with a vacuum cleaner. TVN was of the view that her husband was drug dealing and was addicted to ICE.

368. TVN deposed that she was fearful of her second husband and very concerned he would harm her and her two children.

369. In desperation she contacted the Applicant who organised for her and her children to be safely removed from the family home without being harmed by her second husband. Shortly thereafter TVN deposed that her second husband came to the place she was staying and threatened her with a gun. Again she called the Applicant who disarmed her second husband. According to TVN, KB:

"ran up to him and hug him tight. 'Thank you, uncle, and I love you so much."

370. Subsequently TVN's second husband was arrested but once he was released on bail he again threatened her and her children. TVN deposed that the Applicant arranged accommodation in Queensland so she and her children would be safe.

371. The following account was given of the Applicant's ongoing relationship with TVN's children - Exhibit 15 pp. 3-4:

"Whilst in custody, [the Applicant] and my kids still develop their relationship to how much he loves my kids and keeps emotionally supporting us. He cares for our welfare outside without him what it could be. To be honest, his role acts as their godfather. They always listen to him, laugh, sing or even spend time with him for hours on facetime non-stop laughing like now...he has been a great brother to me to raise my kids to become a great person..."

372. Mr Berg and Ms Hart submitted, and the Tribunal accepts, that KB and ABCK will undergo hardship if the Applicant is removed from Australia, and this hardship is exacerbated by the fact that TVN is a sole parent and KB has special needs - ACS para 30.

373. The Tribunal has been provided with a short statement of 2 May 2021 from BJH who is a cousin of the Applicant - Exhibit 21. BJH is the mother of two sons: TK who is 16 and SK who is 14. Ms BJH also provided the Tribunal with 13 photos of her two children with the Applicant and his daughter - Exhibit 22.

374. Ms BJH states that the Applicant has known her children since birth and he spent time with them at his house almost every school holidays whist they were at primary school. TK, in particular, used to socialise with the Applicant's daughter.

375. Mr Berg and Ms Hart submitted, and the Tribunal accepts, that the photos are indicative of the warm relationship between TK and SK and the Applicant - ACS para 29.

376. The evidence before the Tribunal suggests that none of the four children discussed above have had any adverse or negative experiences in the years they have interacted with the Applicant - ACS para 32.

377. The Tribunal accepts that the Applicant has a close and loving relationship with the four children and has had a positive impact on their lives. In particular, the active intervention of the Applicant in protecting TVN from a violent and abusive partner and facilitating the family's movement from a dangerous domestic situation is of significance. No doubt, both children of TVN have formed a close bond with the Applicant, and his removal from Australia would have a negative impact on them. Unfortunately, the Tribunal cannot go further as neither TVN or her children gave testimony. All the Tribunal can proceed on is the Statutory Declaration of TVN. Nonetheless, the Tribunal has no reason to doubt the veracity of that document or the close bonds formed through adversity between the Applicant, TVN and her children.

378. The Respondent contends (Exhibit 2 para 46) that the Tribunal should give little or no weight to this consideration in the Applicant's favour in the absence of direct evidence from the children or independent evidence of the relationship between the Applicant and the children.

379. It is the case that neither mother nor any of the children gave oral testimony to the Tribunal. Further, the Tribunal only has before it the statements of the two mothers together with photographs. Nonetheless, the Tribunal has no reason to doubt the sincerity of the evidence of the mothers. Although less weight can be placed on the statements provided in the absence of either mother being subject to cross-examination, nonetheless the Tribunal has given both statements appropriate weight.

380. Turning now to the factors set out in Direction No 90:

(a) the Applicant has a parent-like relationship to KB and ABCK, and has known the family for nine years. In short, the Applicant has known KB since he was 6 years old and ABCK since she was one year old. In the case of TK and SK, the Applicant is their uncle and has known both since birth. Although the Applicant's relationship with TK and SK is non-parental, it is close and loving;

(b) KB is 15 and TK is 16, and, as such, the length of time that the Applicant will play a parental/close loving role is relatively short. However ABCK is only 10 years old and SK is 14, and, accordingly, the Applicant would continue to play a positive role in their formative years for some time;

(c) the Applicant's domestic violence and traffic offences has not had, to the knowledge of the Tribunal, any negative impact on any of the children;

(d) it is likely that the Applicant's removal from Australia would have a negative impact on all four children, but especially KB. Having regard to KB's hearing and other problems, lack of close contact with the Applicant would be especially difficult for him;

(e) although TK and SK have both a mother and father who already fulfil a parental role, in the case of KB and ABCK they do not have a relationship with their respective fathers, and the Applicant has played an important parental type role in their lives;

(f) the Tribunal has not been presented with independent evidence of the views of the children, but has proceeded on the assumption that the views expressed by TVN and BJH accurately reflect the relationship between the Applicant and their children;

(g) there is no evidence that any of the children have been at risk of being subject to, or exposed to, family violence perpetrated by the Applicant nor otherwise abused or neglected by the Applicant in any way; and

(h) there is no evidence before the Tribunal that any of the children has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct.

381. Although none of the four children discussed above are the children of the Applicant, the Tribunal is satisfied that the Applicant's longstanding involvement with them has been positive and that his removal from Australia would have a negative impact on them, at least in the short-term.

382. Whilst the Applicant has been in immigration detention now for a considerable period of time, the scant evidence before the Tribunal suggests that he has kept in contact with the children.

383. The Tribunal was particularly impressed by the Statutory Declaration of TVN. The Applicant has played an important and positive role in her life and he has also developed a parent-like relationship with her children. In the absence of both of TVN's children having a close relationship with their biological fathers, the role played by the Applicant has been important and positive. The removal of the Applicant from Australia would have, in all likelihood, a negative impact on KB in particular.

384. The Tribunal finds that best interests of the four children weigh in favour of the revocation of the cancellation of his visa. All of the children are Australian citizens, and the ongoing separation from the Applicant, is, and will continue to have, negative impacts on them.

385. Overall, the Tribunal finds that this consideration weighs moderately in favour of the revocation of the cancellation of the Applicant's visa.

PRIMARY CONSIDERATION 4 - Expectations of the Australian community

386. Section 8.4(1) provides that 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 would expect that the non-citizen would not be allowed to enter or remain in Australia.

387. Further, s 8.4(2) goes on to provide that 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 non-citizen should not continue to hold a visa. In particular the Australian community expects that the Australian Government should refuse cancel the visa of a non-citizen if their conduct raises serious character concerns, including (of relevance to this matter):

(b) commission of serious crimes against women and/or children.

388. These expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community - s. 8.4(3).

389. Importantly, decision-makers should proceed on the basis of the Government's views as articulated in Direction No 90 without independently assessing the community's expectations in a particular case - s. 8.4(4). As was pointed out by Middleton J in PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050 (PYDZ) at [82];

"This makes it clear that decision-makers are to stay within the confines of cl 8.4(1)-(3) when determining the content of the expectations of the Australian community..."

390. It is clear that s 8.4(4) has codified the law as expounded by the majority of the Full Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR).

391. In applying this Consideration, the Tribunal is required to have regard to the principles set out in s 5.2 - PYDZ at [75]. However, a decision-maker when considering this Consideration is not permitted to take into account as part of the assessment other Considerations. This was explained by Middleton J in PYDZ (at [85] as follows:

"...The Direction sets out a regime under which there is a stark demarcation between those considerations that are deemed to be 'primary' and those that are deemed to be 'other'. Although the comments of Charlesworth J in FYBR (and the primary judge at first instance) were made in a slightly different context, I have the same concerns expressed by their Honours in relation to the operation of cl 8(4) and cl 11.3 of Direction 65 - that is, to allow a decision-maker to import the 'other' considerations into its analysis of the fourth primary consideration in cl 8.4 of Direction 90 would render cl 7.2 of the Direction unworkable. When one has regard to the text of Direction 90, it is clear that the decision-maker is not left at large to pick and mix from the primary and other considerations. The Direction has been structured so that he primary and other considerations are distinct steps in the decision-maker's analysis and in the ultimate balancing act of weighing up the various considerations against each other."

392. In FYBR Charlesworth J explained the content of the expectation. The content, as her Honour explained, does not involve the Delphic inquiry of what such expectation is as a matter of objective fact, but, rather, what the executive government of the day has deemed the community's expectations to be. The content of the deemed expectation, then, is to discerned by construing the relevant section of the Direction - see [68].

393. Charlesworth J then went on to make these observations:

"75. Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen's conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.

76. The 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. Flexibility in the decision-making process is reinforced by cl 8(4), which requires no more than that the government's assessment of community expectations is 'generally' to be afforded greater weight than the 'other considerations' listed non-exhaustively in cl 12. The word 'generally' contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors arising for consideration under cl 12. There may be cases in which it is not appropriate to give community expectations discerned under cl 11.3 any weight at all."

394. Stewart J reached the same conclusion as Charlesworth J. His Honour made the following observations:

"89 It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse to cancel visas are made. Where those norms are expressed, at least in part, as reflecting 'community expectations' then, in that sense, they might accurately be understood as 'deeming' what the community expectations are. That is because, as indicated, as a manner of practical reality there is no one or even necessarily dominant set of community expectations in this field.

90 However, it is not to be expected that the Government of the day would seek, via the device of 'community expectations' or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision maker....

91 The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, 'community expectations' as expressed normatively are what the Government says they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, 'community expectations' as expressed by the Government do not speak to the outcome in any particular case - they are understood and applied normatively.

92 There is also an important structural consideration which is identified in the reason of the primary judge (at [39]-[41]) and Charlesworth J (at [73]). It is that community expectations are to be taken into consideration (as a primary consideration) with other factors to inform the decision-maker's decision. The consequence of that is twofold. First, not every factor relevant to the decision will inform the content of community expectations and, second, the ultimate decision may differ from the community expectations."

93 This is an important further indication that it is not for the decision-maker to undertake an assessment of what the community expectations are in each case dependent on the circumstances of the case which circumstances would necessarily include all the considerations relevant to the ultimate decision. If that was so then the expectations of the community, as assessed, would determine the decision which would conflict with the requirement that they be taken as merely one of three primary considerations along with a number of other considerations to inform the ultimate decision."

396. Finally, it is not the case that, when taking into account the expectations of the Australian community, a decision-maker will always weigh in favour of non-revocation. In an appropriate case a decision-maker, when carefully weighing up the material presented, may determine that the expectations of the Australian community do weigh in favour of revocation. Each case must be governed by the evidence presented - DKXY v Minister for Home Affairs [2019] FCA 495 at [29] - [31].

397. Mr Berg and Ms Hart made the following submission - ACS para 35:

"Due to the seriousness of [the Applicant's] offending, particularly the acts of family violence, the Australian community's expectations would prima facie weigh against him."

398. Likewise, the Respondent made this submission - Exhibit 2 p. 14 para 50:

"Observing the norm stipulated in paragraph 8.4(1), and in accordance with Principles 5.2(2)-(4) of Direction 90, the Australian community would expect that the applicant should not hold a visa on account of his very serious criminal offending, including family violence. In particular, his crimes have been of a violent nature and committed against women, and are demonstrative of a persistent and defiant disregard for Australian law. Overall, this primary consideration weighs heavily against the applicant."

399. In FYBR Stewart J observed (at [95]) that the equivalent to the first sentence of s 8.4(1):

"...says no more than what the law in any event demands of all people in Australia, non-citizens and citizens alike, namely that the Australian community expects non-citizens to obey Australian laws while in Australia. As expected, that is a normative principle. It is also one on which there would likely be almost universal agreement...It is also just the starting point of the analysis, but draws attention to the fact that the disobedience of Australian laws by a non-citizen while in Australia will be relevant to the refusal decision in question."

400. In this matter, the expectation of the Australian community that the Applicant would obey Australian laws, has not been met on numerous occasions. The Applicant has a history of family violence, traffic offences and attacking Police Officers in the performance of their duties. In this respect, the Applicant has failed the expectations of the Australian community over a long period of time. This is often referred to as the "first expectation". Using that terminology, it was rightly conceded that the Applicant had "fallen foul" of the "first" expectation.

401. Attention also has to be given to s 8.4(2) and its focus on the type of offences which, if committed, would result in the Australian community expecting that the non-citizen would forfeit the right to hold a visa. This is especially the case if the offences raise serious character concerns. As noted above, s 8.4(2) specifically includes acts of family violence and serious crimes against women and children as falling within the category of offences raising serious character concerns.

402. It is the case that the subsection uses the phrase "may be appropriate". The same phrase was used in Direction No 79 and was considered by Stewart J in FYBR (at [97]):

"The use of the phrase 'may be appropriate' has the inevitable consequence that the community expects that there will be circumstances where the disobedience or breach or risk of disobedience or breach referred to in the earlier part of the sentence will not lead to refusal of the visa application. The community thus expects that it 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'. That assessment is not an assessment of what the Australian community expects in the particular case. The Australian community expects people to obey the law, and if they do not (or there is a risk that they will not) then that is relevant to whether or not they will be granted a visa, and in some cases it may be appropriate that they will be refused a visa because of their disobedience (or the risk of their disobedience). Direction 65 does not ascribe to the Australian community a relevant expectation with regard to the outcome in the particular case. That is a matter for the decision-maker."

403. His Honour highlights the discretion vested in a decision-maker. The fact that a non-citizen has broken the law does not lead inexorably to the result that the mandatory visa cancellation will be upheld.

404. Critically, consideration now needs to be given to the third sentence of cl. 13.3.(1) (now the first sentence of s 8.4(2)). Stewart J made these observations (at [98]):

"It means that in any particular case the refusal of a visa may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. This is to say no more than in the case of a particularly egregious offence, or a particularly severe character assessment, that alone will be sufficient basis to refuse the visa. It is the one end of the spectrum. But that does not detract from the community's expectation that there must be an assessment as to 'appropriateness' that is required by the second sentence."

405. His Honour then went on to provide this helpful plain English summary of community expectations (at [101]):

"Understood in this way, community expectations are simply, and informally, expressed as follows: 'If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.' This limited expression of 'community expectations' by the Government is, one would expect, quite uncontroversial which is an attractive feature given the heterogeneity of views in this area."

406. The wording of Direction No 90 makes it abundantly clear that acts of family violence and serious crimes against women and children raise serious character concerns. In the words of Stewart J, the more serious the breach the more serious it will be held against a non-citizen, and, in the case of family violence and serious offences against women and children it will often be decisive.

407. This conclusion is buttressed by s 8.4(3) which provides that the expectations discussed apply regardless of whether a non-citizen poses of measurable risk of causing physical harm to the Australian community. In short, even when a non-citizen does not pose a measurable risk of physical harm to the community, the commission of acts or crimes which raise serious character concerns is sufficient to conclude that the Australian community would expect that a non-citizen should not retain a visa and remain in Australia.

408. The wording of this Consideration is different in a number of respects to Direction No 79. This Direction, for example, specifically draws decision-makers attention to the seriousness that family violence is viewed by the Australian Government. A decision-maker properly applying Direction No 90 must give due consideration to this principle, which, as previously discussed, is reflected in a number of Considerations.

409. Having given careful consideration to the evidence presented, I conclude that the expectation of the Australian community is that the cancellation of the Applicant's visa not be revoked, having regard to:

(b) his history of assaulting his first two wives and his stepdaughter;

(c) his repeated breaches of Apprehended Domestic Violence Orders;

(e) his repeated breaches of the traffic laws of New South Wales.

410. The expectations of the Australian community are linked to the protection of the Australian community. At its core, Primary Consideration 4 requires a decision-maker to weigh up and evaluate the evidence presented with a view to determining if the personal circumstances of a non-citizen weigh more heavily than the criminal history of the non-citizen and the risk of the non-citizen reoffending. The focus of a decision-maker is, at the end of the day, the best interests of the Australian community.

411. The Tribunal accepts as sound, and correct, the following concession from the Applicant - Exhibit 6 p. 5 paras 27 - 29:

"27. Most relevantly, the Applicant has committed crimes of domestic violence against 2 women and a child. His offending in these respects is viewed as very serious.

28. The Applicant has also committed an offence of assault a police officer while in execution of the officer's duty_._

29. When considered with the Applicant's other offences 'the expectations of the Australian community' will weigh substantially against the applicant."

412. The Tribunal therefore finds that Primary Consideration 4 weighs in favour of non-revocation of the cancellation of the Applicant's visa. The Tribunal places moderate weight on this consideration.

413. Section 9 contains a non-exhaustive list of other considerations, which include:

414. The Applicant has not made any claims with respect to Australia's non-refoulment obligations, and the evidence presented does not disclose the existence of such obligations.

415. In these circumstances, the Tribunal finds that this Consideration is not relevant and is of neutral weight.

416. Section 9.2 of the Direction provides that a decision-maker must take into account the extent of any impediments that a non-citizen may face if removed from Australia to (in this case) South Korea, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of South Korea) taking into account:

(b) whether there are substantial language or cultural barriers; and

(c) any social, medical and/or economic support available to the non-citizen in South Korea.

417. Mr Berg and Ms Hart made the following initial submissions on behalf of the Applicant - Exhibit 6 p. 8:

"40. [The Applicant] is unwell. He has a condition affecting his gallbladder and hypertension. The scans of his gallbladder detect 2 polyps. [The Applicant] may need procedure by a surgeon to rule out cancer in future. As of November 2019, surgery was not warranted. At present, the treatment includes a review of his condition at 6-month intervals to scan and measure growth in the polyps.

41. However, due to the pandemic [the Applicant] has missed as scan in July 2020. He appears to have missed a second scan in January 2021. Consequently the present state of the 2 polyps is unknown. Equally the medical risk [the Applicant] faces is also unknown.

42. So long as [the Applicant] remains in immigration detention, he will face the same impediment to a proper diagnosis of his condition. If a non-revocation decision is made, [the Applicant] will be returned to immigration detention. The duration of that detention is relevantly affected by government's policies and responses to the pandemic. Presently the duration is indefinite.

43. A non-revocation decision would cause [the Applicant's] conditions to go untreated for an indefinite period, likely until the pandemic is resolved."

418. Subsequent to the Hearing, Mr Berg and Ms Hart made the following supplementary submissions - ACS paras 39 - 41:

"39. [The Applicant] is a credible witness. He gave evidence about his medical treatment in Villawood Immigration Detention Centre. That evidence is consistent with a policy of VIDC in 2020, where external procedures are no longer available to detainees, due to the pandemic. The Tribunal should find that his second diagnostic scan for 2020 did not take place.

40. [The Applicant] faces an impediment to a diagnosis of his condition. This occurs while he awakes each day bleeding through the mouth. Further the evidence is that [the Applicant] will not be able to use the health system in South Korea.

41. A non-revocation decision would cause [the Applicant's] conditions to go untreated for an indefinite period, likely until the pandemic is resolved. [The Applicant] is at risk of cancer. Accordingly, the health considerations should weigh in his favour."

419. The Respondent made the following initial submissions - Exhibit 2 p. 15 paras 53 - 56:

"53. The Minister acknowledges that the applicant is likely to face emotional hardship if he is separated from his wife and daughters in Australia. However, the Minister notes that the applicant has family in Korea, including his parents and brother. He completed tertiary education in Korea and there is no evidence to suggest he would not be able to find work with his experience. As the applicant left Korea at the age of 22, he would be unlikely to face any significant language or cultural barriers upon return.

54. The applicant contends that he is unwell and refers to his gallbladder polyps and hypertension. He further claims that his detention has prevented a proper diagnosis in relation to the former condition. On the current evidence, the two polyps are small and do not warrant elective cholecystectomy. As for the applicant's hypertension, the evidence suggests that he ceased taking his blood pressure medication voluntarily over a year ago as the timing of dispensation was inconvenient. The most recent clinical records also suggest that he no longer requires medication for his blood pressure. In any event, the applicant has produced no evidence to suggest that the applicant would not have the same access to health and support services as other Korean citizens in Korea, or that these services would be deficient in any respect.

55. The applicant also contends he would face hardship in South Korea on account of his age. In the absence of any evidence as to the kind of hardship claimed, this contention should be given no weight.

56. Therefore, insofar as this consideration weighs in the applicant's favour, it should be given limited weight."

420. Subsequent to the Hearing, the Respondent made the following supplementary submissions - RCS pp. 8 - 9 paras 26 - 28:

"26. In his closing submissions the applicant asserts that he will not be able to use the health system in South Korea. Against this backdrop, the applicant contends that his medical conditions face an impediment if removed.

27. The Minister's representative asked the applicant why he would be denied health care. The applicant said that South Korea had quite good health assistance. The Minister contends that the applicant would be able to access health care. In this regard, the World Health Organisation reports that South Korea achieved universal health coverage of its population in 1989, that the health status of the Korean population is better than that of many other Asian countries, and that health care is financed through National Health Insurance covering the entire population.

28. Further, the Minister draws attention to the applicant's oral evidence that his parents are 'nice and warm', are a role model to him and have taught him how to be generous to others. The applicant confirmed he has a good relationship with them and that he spoke with them every day or two days. The Minister contends that the parents would be able to provide some support to the applicant if he were to be returned to South Korea."

421. The Tribunal's attention has been drawn to the Applicant's ill-health, in particular his gallbladder condition, the impact of the pandemic and his potential access to health care if he was returned to South Korea. Although the bulk of the Applicant's submissions related to the gallbladder and hypertension conditions, the Tribunal also accepts that he suffers from ongoing mental health ailments and alcohol dependency that also may require assessment and treatment.

422. The Tribunal has the benefit of detailed medical reports during the period the Applicant has been in immigration detention. In a IHMS Health Summary Report for the Commonwealth Ombudsman, the following information is provided for the Applicant's hypertension, which condition was first identified whilst he was in detention, on 5 March 2018 - Exhibit 4 TB22 p. 462:

"In March 2018, an IHMS General Practitioner (GP) noted that [the Applicant] had a history of high blood pressure treated with oral medication for the three preceding years. His antihypertensive therapy was continued. [The Applicant] was released from held detention in July 2018 and returned back in January 2019 when his oral anti-hypertensives were continued due to ongoing high blood pressure. In April 2020, [the Applicant] attend review with a nurse advising that he had stopped taking his medication a few months ago as he was managing his blood pressure well with exercise and diet. However, in May 2020, [the Applicant's] medications were prescribed again as his blood pressure increased. Additionally, on 30 July 2020 an IHMS psychiatrist commented that '[the Applicant's] hypertension is likely stress related_.' IHMS continues monitoring_ [the Applicant's] blood pressure by regular checks and managed by the IHMS GP as clinically indicated."

423. The medical evidence before the Tribunal indicates that whilst the Applicant has a history of hypertension no particular concerns have been raised and it is a condition that can be appropriately treated by medication, if required - Exhibit 4 TB23 p. 467. In this regard, the Tribunal notes that the IHMS Health Summary Report for the Commonwealth Ombudsman dated 29 December 2020, firstly, provides this information about the Applicant's hypertension condition - Exhibit 4 TB23 p. 467:

"[The Applicant] has a history of hypertension for which he takes prescribed medication. There have been no concerns reported regarding this health issue during the reporting period. He continues to be monitored as per the Hypertensive Care Plan protocol."

424. Second, the Clinical Reporting Nurse who made the above observations on the Applicant's hypertension condition as made the following statement - Exhibit 4 TB23 p. 469:

"...[the Applicant] has no diagnosed conditions that cannot be properly cared for in their current placement."

425. The Tribunal therefore concludes that the Applicant's hypertension condition is one of longstanding, is being properly treated and, in the future, can also be properly treated with prescribed medication. The provision of medication in South Korea is dealt with below.

426. Detailed submissions have been made regarding the Applicant's gallbladder polyps. On 5 March 2018 the Applicant was examined and assessed by a GP who made the following notes about his gallbladder condition - Exhibit 4 TB20 p. 454:

"He was also diagnosed with gallbladder polyp 80 mm 3 years ago and he states he was meant to see a surgeon before going to jail but never happened."

427. On 29 June 2018 the Applicant was administered an abdominal ultrasound. The report of the treating practitioner of this procedure was as follows - Exhibit 4 TB24 p. 470:

"Conclusion:

1. Two gallbladder polyps.

2. Mild fatty change in the liver."

428. The Applicant was referred to Dr George Kourtesis, General Surgeon, who examined and assessed him, and provided the following report - Exhibit 4 TB26 p. 472:

"Thank you for referring this man who does have long standing reflux.

He denies however taking Somac on a regular basis for some time. I note the previous biopsies show evidence of Barrett's oesophagitis. He has also had a history of previous colonic polyps and I think it would be reasonable to perform an endoscopy and colonoscopy on this man.

He has a past history of gallbladder polyps but recent ultrasound shows only 2 small polyps in the gallbladder and this does not warrant an elective cholecystectomy."

429. In the IHMS Health Summary Report for the Commonwealth Ombudsman prepared by a Clinical Reporting Nurse and dated 11 August 2020, the following account is given of the Applicant's gallbladder condition Exhibit 4 TB22 pp. 462 - 463:

"In August 2019, the IHMS GP referred [the Applicant] to see the general surgeon who assessed [the Applicant] in September 2019 and agreed that endoscopy and colonoscopy was reasonable. In terms of the polyps the surgeon reported that an elective cholecystectomy was not warranted. In November 2019, [the Applicant] had another abdominal ultrasound and in December 2019 attended for the proposed colonoscopy which was entirely normal apart from some haemorrhoids, and his upper endoscopy confirmed the oesophagitis and duodenitis. Biopsies were taken and were in January 2020 reported as normal. [The Applicant] was reassured that all the pathology was clear and that some of his problems related to his anxiety. In March 2020, [the Applicant] denied reflux or abdominal pain, but also stated that he was not taking his medications as he was finding the medication times difficult...In July 2020, [the Applicant] attended review with the IHMS GP when he was requesting follow-up imaging. [The Applicant] was advised that due to the current Covid-19 restrictions the non-essential appointments are currently postponed. However, there are currently no concerns related to this physical health issue reported. Most recently on 07 August 2020, [the Applicant] requested to see a GP asking for the ultrasound again. [The Applicant] was advised by the GP that both of his recent ultrasounds showed the polyps were less than 4.5mm in size; he did see a surgeon and had the endoscopy which was normal. [The Applicant] was again reassured that the surveillance appointment will be attended once the pandemic is settled; however [the Applicant] was not completely satisfied. [The Applicant's] gastric issues continue being managed by the IHMS GP as needed."

430. A follow-up report which is dated 29 December 2020 and prepared by a Clinical Reporting Nurse contains the following information - Exhibit 4 TB23 p. 467:

"As advised during the last reporting period, in September 2019 the general surgeon reported that an elective cholecystectomy (removal of the gallbladder) was not warranted for the two gallbladder polyps and surveillance of the condition was recommenced. During this reporting period, the November 2020 surveillance abdominal ultrasound result showed two gallbladder polyps as previously reported. There have been no further concerns reported by the IHMS General Practitioner (GP) who continues to monitor the condition."

431. It is tolerably clear to the Tribunal that the Applicant is receiving appropriate health care in immigration detention. Whilst he has been in immigration detention he has been assessed and treated for:

432. Despite the disruptions caused by COVID-19, which, it should be noted, impacted on the entire community and not just those in detention, the Applicant continues to receive proactive medical care. Indeed, the nature and frequency of the medical care that the Applicant receives, is most probably more targeted and frequent than if he were in the general community. This is especially the case as the Applicant has a history of stopping his medication and failing to attend medical appointments. Whilst he has been in immigration detention, his health is being closely monitored.

433. Whilst Mr Berg and Ms Hart contend (ACS para 41) that a non-revocation decision would cause the Applicant's medical conditions to go untreated for an indefinite period of time, likely until the pandemic is resolved whilst he is at risk of cancer, the evidence presented does not support that submission.

434. The evidence presented does not support the proposition that the Applicant's gallbladder, hypertension and other conditions are not being properly treated or monitored. On the contrary, it would appear from the voluminous medical evidence contained in Exhibit 4, that the Applicant has been the recipient of proactive and professional medical treatment.

435. The key question for the Tribunal, however, is the extent of the medical treatment impediments the Applicant would face should he be returned to South Korea.

436. First, attention should be given to the state of the medical system in South Korea. It is a matter of common knowledge that South Korea is a vibrant and prosperous liberal democracy with a world-class manufacturing industry and a first-world economy.

437. The Respondent points to a World Health Organisation report of 2015 which noted that South Korea had achieved universal health coverage of its population in 1989 and that health care is financed through National Health Insurance which covers the entire population - RCS p. 8 para 27.

438. As previously noted, the Applicant received psychiatric treatment in South Korea prior to him first coming to Australia.

439. There is no reason to assume that the Applicant would not be able to access the same level and quality of medical treatment in South Korea as he would be able to access in Australia. Indeed, as the Applicant would be able to communicate much more effectively to medical practitioners in Korean than he is able to communicate to medical professionals in Australia in English, it may be that the level of care he would receive would be more focused.

440. Although the Tribunal was not presented with any information concerning the availability of alcohol dependency treatments in South Korea, it is reasonable to infer, having regard to universal health coverage, that the Applicant could access appropriate treatment. Indeed, as he was diagnosed with an alcohol dependency problem prior to coming to Australia, it is also reasonable to infer that he would be referred by any treating psychiatrist or psychologist for appropriate treatment, if it was considered necessary.

441. Mr Berg and Ms Hart contend (ACS para 40) that the Applicant will not be able to use the health care system in South Korea should be deported. The evidence on what the situation in South Korea would be should the Applicant be returned is sparse.

442. Under cross-examination, the Applicant testified that the health care system in South Korea was "quite good". However, he went on to testify - Tr. 6.5.2021 p. 73:

"But the South Korean Government knows that I have been living in Australia for long period of time...so I know that I cannot get any benefit from the South Korean healthcare system."

443. Apart from this assertion, there is no independent evidence to support the proposition that the Applicant, as a citizen of South Korea, would be denied access to the universal health care system on his return. It may be that the Applicant would be subject to a waiting period before he could assess certain free medical treatment because of his absence from South Korea for a prolonged period. However, there is no evidence before the Tribunal to support the proposition that the Applicant as a citizen of South Korea, would be indefinitely deprived of the benefits of its universal health care system - Exhibit 2 para 54. If there was such evidence, then different considerations would apply.

444. There is no evidence concerning the Applicant's age that would raise issues of impediments if he is removed from Australia - Exhibit 2 para 55.

445. There is no evidence that there are any substantial language or cultural barriers facing the Applicant should he return to South Korea.

446. The Applicant first came to Australia as an adult, keeps in contact with his family and friends in South Korea and has, since first arriving in Australia, visited South Korea on more than one occasion and for lengthy periods.

447. The evidence presented suggests that the Applicant would be able to re-integrate into South Korean society with minimal difficulty.

Social, medical and economic support in South Korea

448. The Applicant's mother, father and brother live in South Korea. In addition, he has three uncles/aunts and two cousins who also live in South Korea - Exhibit 1 G32 pp. 143 - 144.

449. At the Hearing, the Applicant testified that he had a good relationship with his parents and he said that they "are very nice and warm" - Tr. 6.5.2021 p. 72.

450. The evidence before the Tribunal is that the Applicant has been in regular contact with his parents since he first came to Australia, has visited them, left his daughter in their care for a prolonged period and has received financial assistance from them.

451. The Applicant testified that he called to speak to them every day, or at least once every two days Tr. 6.5.2021 p. 73.

452. Despite being 78 and 84 years of age, the Applicant agreed that if he was returned to South Korea his parents would support him - Tr. 6.5.2021 p. 73. Obviously, the level of support his parents could offer would be limited because of their age.

453. When giving evidence, the Applicant testified that he had some experience with international trading - Tr. 6.5.2021 p. 72:

"Yes, when I was doing commercial cleaning business, I also had a house with a shop, and I also imported dried foods from South Korea and so to Korean grocery stores as a wholesaler and reversely I also traded exported Australian health food to South Korea."

454. If not for his alcohol problems and subsequent traffic convictions, the Applicant may have succeeded with his commercial cleaning business. Further, as the above testimony indicates, the Applicant has experience with international trading. In short, the Applicant has considerable business experience. In such circumstances, there is no reason to assume that the Applicant would not be able to find employment in South Korea and, possibly, to operate his own small business.

455. The nature of medical support the Applicant may receive has been discussed above.

456. Conversely, as the Respondent rightly concedes, the Applicant would have emotional hardship because of his separation from his wife, daughter and step-daughter - Exhibit 2 para 53.

457. Having lived in Australia for more than two decades, the Applicant would also face some initial problems in re-integrating into South Korean society. As a person with few financial assets, this difficulty would be compounded in the short term. The Applicant would also be deprived of his circle of friends and companions, especially those who he associated with at his Church.

458. The Tribunal has taken into account the References that have been provided in support of the Applicant - Exhibit 3 TB18 pp. 331 - 335. It is very clear from reading those References that the Applicant is highly regarded by those he associates with. It is a matter of great regret that the Applicant's alcohol dependency and frequent breaches of the law have overshadowed his other good deeds and his positive relationships with his circle of friends, associates and colleagues.

459. The Tribunal accepts that the Applicant will have impediments on his return to South Korea, however the nature and extent of those impediments will be ameliorated due to the presence of the Applicant's mother, father and brother and his ability to communicate and interact effectively with fellow Korean citizens. Further, with the effluxion of time, the extent of the impediments should progressively minimise.

460. The Tribunal, however, recognises that the emotional hardship caused by the separation of the Applicant from his third wife and daughter will be especially difficult and painful. This difficulty will, unfortunately, be of longstanding.

461. In these circumstances, the Tribunal finds that this Consideration weighs in favour of the Applicant, but should be given moderate weight.

462. The primary victim of the Applicant's offending in August 2017 was his stepdaughter HBK.

463. The Tribunal has been presented with Statements from HBK as well as receiving testimony from her on 6 May 2021.

464. At the Hearing HBK was questioned about a statement she had made where she said that the absence of the Applicant had left a huge impact for both her and her mother. HBK gave the following testimony - Tr. 6.5.2021 p. 103:

"INTERPRETER:...At first his absence caused a great deal of financial problem and the next is I cannot actually concentrate on studying as a student as our family environment is unstable. And certainly my mum's mental state is unstable as well.

MR BERG: Can you tell me more about yourself please, about the impact on yourself?

INTERPRETER: Yes, even there are many. Firstly, yes, he - just financial support for education is an issue as I'm a student and also as you know our family environment is unstable I experience issues with, you know, mental health. Most of all seeing my mum going through difficulties is the hardest thing for me, and those are the impacts I can think of at the moment....

INTERPRETER: He my step-dad used to do all the things at home but now since he is there my mum cannot do things on her own and she needs help but as she doesn't have him she finds it very difficult. And my mum is mentally unstable....and as I said before the financial impact is huge, and in all aspects there are, yes, big impact on her...

MR BERG: [HBK], are you working a the moment as well as studying?

INTERPRETER: At the moment I am thinking of deferring studying to next year because it might be difficult to both study and work. So just if I just work now it might be a help to my mum.'

465. The Tribunal accepts that the absence of the Applicant from the family home has had deleterious financial impacts on both EYK and HBK. Both EYK and HBK apparently suffer from mental health conditions, and the ongoing financial strain brought about by the Applicant's detention has had negative consequences for them.

466. The Respondent correctly contends (Exhibit 2 para 57) that the risk that the Applicant may commit further domestic violence offences if released in the community, particularly against HBK, is a matter that needs to be taken into account.

467. The Tribunal was presented with a report dated 8 October 2019 by Mr Peter Stoker, Psychologist - Exhibit 3 TB13 pp. 295 - 306. The report has some inherent defects which render the conclusions reached by Mr Stoker problematic. Most importantly, Mr Stoker noted - Exhibit 3 TB13 p. 304:

"He had no history of violence up until meeting his second wife."

468. It would appear that Mr Stoker was unaware that the Applicant was married three times and that he was convicted of assaulting his first two wives. His report, therefore, is predicated on the assumption that the Applicant's assault of his stepdaughter was out of character.

469. Nonetheless, Mr Stoker opined that the Applicant had a dysfunctional relationship with his third wife and stepdaughter and provided the following advice - Exhibit 3 TBG13 p. 305:

"I advised him against any future contact with his stepdaughter.

In other words, I advised he should live independently if he is not deported."

470. Mr Stoker referred to a "dysfunctional dynamic within his marital situation" (p. 304)and it would appear to the Tribunal that, at the very least, the risk of future conflict between the Applicant and his stepdaughter cannot be ignored or downplayed.

471. The Tribunal has to weigh the financial benefits to HBK if the Applicant is returned to the community against the physical risk of the Applicant again assaulting her.

472. On the balance, this Consideration weighs against the Applicant, having regard to the risk of further domestic violence, but should only be given moderate weight.

473. Subsection 9.4.1(1) requires decision-makers to consider any impact of the decision on the non-citizen's Australian family members, where those family members are Australian citizens, permanent residents or have a right to remain in Australia indefinitely.

474. It will be noted that this Consideration limits the focus of the inquiry to family members who have a right to reside in Australia indefinitely, whether by virtue of citizenship or other legal status.

475. The Applicant's daughter, YJK, is an Australian citizen. The evidence presented suggests that she is estranged from her father and has not been in direct communication with him for some time. Nonetheless the Tribunal has been presented with a Statutory Declaration dated 5 March 2021 (Exhibit 12) which has been referred to earlier. YJK deposed as follows:

"25) I was raised and grew up with my father for the entire 16 years to become who I am today, that my father sacrificed a lot for me. He played mother role when I was down, then he lifted me, taught me through; I was fearful that he is tough dad to protect me, back me up...

27) People asked me where my parents are, why friends are abandoning me. I am struggling to find a connection with my friends and the people around me. They applied for my status as 'bad daughter who has kicked out the house' they don't know how hard my dad was trying to keep me safe and want me back. They don't know how many nights sleepless and teared up burned out my eyes. Only my father knows. My only family is my father...

29) My father is in the stage of giving up everything I understand. There are many reasons for him just to pack his stuff and get out of this situation quickly. He is doing that for me, fighting for me with a legal proceeding. However, if permitted, in battle he is, fighting with the lawyer, how about his cancer and mental illness? He is fighting alone and will be left alone in Korea. He would get in trouble in Korea, and he would suicide, I don't know."

476. The above extracts starkly highlight the mental torment that YJK is going through and the bonds of love she claims she has with her father. The Tribunal accepts that despite the breakup of the family as a result of the Applicant's detention, his daughter, despite all the problems that have befallen her and her alienation from her stepmother, stepsister and father, nonetheless remains committed to her father and wants him to remain in Australia.

477. There is also evidence before the Tribunal that the Applicant has provided some financial support to YJK since he has been in detention - Exhibit 3 TB17 pp. 327 - 328.

478. On 23 April 2019 both EYK and HBK were granted Partner (subclass 801) visas, with a right of stay in Australia for an indefinite period after each arrival - Exhibit 3 TB5 pp. 159 - 164.

479. The Tribunal has already set out at some length the views of EYK and HBK about the Applicant being returned to South Korea. Suffice it to say, both have deposed and testified that they are in financial difficulties, both suffer from mental ailments and in the case of HBK she may have to cease her University studies. Both have stated that their lives would be better if the Applicant were released back in the community and could again financially care for them. The Tribunal has taken into account this testimony.

480. The Respondent made these submissions - Exhibit 2 para 62:

"The applicant claims that his wife, daughter and stepdaughter would face emotional and financial hardship if he is removed to Korea. There is no evidence to suggest that the applicant's wife and children are financially dependent upon him. Contrary to the concerns raised by the applicant's stepdaughter, she and her mother would not be forced to return to Korea in circumstances where they have been granted permanent partner visas. Further, while the applicant's removal to Korea would involve a physical separation from his wife and daughters, there is no evidence before the Tribunal to suggest that they would not be permitted to visit him in Korea, or relocate there with him if they so decide. Nor is there any suggestion that he would be unable to maintain contact with his family in other ways."

481. There is evidence before the Tribunal that EYK and HBK have suffered financially since the Applicant's detention. Whilst they are not financially dependent on the Applicant, both EYK and HBK have testified that they have been struggling on the income they receive. Further, YJK has been living in straitened circumstances since the breakup of the family, including living for extended periods in a refuge.

482. The Tribunal agrees that there is no evidence to suggest that that EYK and HBK would be forced to return to South Korea as they have the right to remain in Australia indefinitely. However, the issue presented to the Tribunal is not whether as a matter of law they would be forced to return to South Korea, but whether, because of lack of finances, this would become an economic necessity.

483. Finally, the Applicant has a cousin (BJH) and two nephews (TK and SK) who are Australian citizens - Exhibit 1 G21 p. 101. The Applicant stayed with his cousin when he left the family home in 2017 - Exhibit 1 G37 p. 160. The Tribunal has previously referred to the short statement provided by BJH (Exhibit 21) and well as the accompanying photographs (Exhibit 22).

484. As previously noted, both the Applicant and his daughter (YJK) have been in close contact with TK and SK over a long period of time and have a positive relationship with them. The impact on TK and SK if the Applicant is removed from Australia, has been previously dealt with.

485. Subsection 9.4.1(2) requires a decision-maker to consider the strength, nature and duration of any other ties to the Australian community, with regard being had to the following:

"a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

1. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
2. more weight should be given to the time the non-citizen has spent contributing positively to the Australian community.

1. 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."

486. The Applicant first arrived in Australia on 30 July 1997 when he was an adult aged 23 years. Accordingly, the Applicant has lived in Australia for most of the last 24 years.

487. The first point, then, to note is that the Applicant did not arrive in Australia as a young child and for that reason retains linguistic, social and cultural links to South Korea.

488. As the Respondent submits (Exhibit 2 p. 16 para 61) the Applicant's offending commenced less than five years after he arrived in Australia, and continued unabated until 2018 when he was removed from Australian society and where he continues to remain in detention.

489. The Tribunal accepts that in many respects the Applicant has made a positive contribution to the Australian community.

490. The Applicant has worked in the cleaning business since 2001, and for a number of years was the employer of up to 25 persons. The Tribunal also has considered a reference provided by Mr Kniles Comafay, the Business Operations Manager of Waterpoint Building Management dated 27 November 2020, which attests to the Applicant's work ethic. Mr Comafay stated that the Applicant has been employed by Waterpoint Building Management since 1 November 2016 as a cleaner. He stated that the Applicant was a "high achiever in his work ethic" who diligently completed his duties and who "never had a negative thing mentioned about him from any of his direct co-workers" - Exhibit 13.

491. Mr Comafay also provided a statement in support of the Applicant dated 13 March 2018. That statement is in most respects the same as the statement quoted above, but does include a further paragraph - Exhibit 1 G26 p. 118:

"If [the Applicant] is not able to work with the company any further, it would be a loss of specific skill and talent for our work force. The main negative impact on the company would be our limitation on working out a redundancy of promotion and growth within his sector, as we were planning to offer [the Applicant] the opportunity to be 2IC within the cleaning sector."

492. In addition, the Tribunal has received a number of testimonials from persons connected with his Church and friends. The evidence before the Tribunal is that the Applicant has been involved in community work and has been a productive member of the community - Exhibit 1 G27 pp. 119 -120, Exhibit 3 TB18 pp. 331 - 335.

493. The Tribunal paid particular regard to the character reference of 1 March 2021 provided by the Reverend Beom Seok Kim, Senior Pastor with the Sydney Full Gospel Church - Exhibit 14.

494. Reverend Kim stated that the Applicant has been doing volunteer work for the Church since 2003. From October 2011 until February 2014 he undertook 2,784 hours of volunteer work including helping Koreans to complete social benefit applications and mentoring young Korean church members who were experiencing stress.

495. From October 2015 until July 2017 the Applicant helped found a Special Choir which raised funds to help the homeless, domestic violence victims, and women in need of shelter and accommodation.

496. Finally, the Tribunal was presented with the Statutory Declaration of TVN which, as previously discussed, outlined the assistance the Applicant gave to her and her children when he was the subject of ongoing domestic violence - Exhibit 15.

497. The Tribunal, then, has been presented with evidence of the Applicant contributing to the Australian community through his employment, his longstanding volunteer work with his Church and private acts of charity.

498. The evidence presented leads to the following findings:

(a) the removal of the Applicant from Australia will have a negative impact on his wife, stepdaughter and daughter. The Applicant's wife and stepdaughter are struggling financially, and the absence of the Applicant has caused them trauma. Further, the Applicant's daughter has been living in a refuge as she blames her stepmother and stepsister for the breakup of the family and the detention of the Applicant. If the Applicant is removed from Australia it is likely that the family will be permanently broken up;

(b) the Applicant arrived in Australia as an adult and after a relatively short period of time commenced a long history of breaching the traffic and domestic violence laws of New South Wales. This long history of breaking the law was persistent and continued despite repeated statements by the Applicant that he would not reoffend;

(c) conversely, the Applicant has a long history of performing volunteer work for his Church and has helped many Korean immigrants to integrate into Australian society;

(d) the Applicant has a long history of employment and, as was clear from the references provided by Mr Comafay, is held in high regard by his employer and his colleagues;

(e) there is also evidence of many private acts of charity the Applicant has performed, and a particularly touching Statutory Declaration from Ms TVN - Exhibit 15.

499. Overall, then, the Tribunal finds that this Consideration weighs in favour of the revocation of the cancellation of the Applicant's visa, but only moderate weigh can be placed on it.

500. Subsection 9.4.2(3) requires decision-makers to consider any impacts on Australian business interests if the Applicant is returned to South Korea, noting that an employment link would generally only be given weight where a non-citizens return to their country of origin would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

501. No evidence was presented that the Applicant has been involved in the delivery of a major project or delivery of an important service in Australia.

502. In the circumstances, the Tribunal places no weight on this consideration.

503. Having considered all of the matters in s 9.4.1 and 9.4.2 the Tribunal concludes that, overall, this Consideration weighs in favour of the revocation of the cancellation of the Applicant's visa, but only moderate weight can be placed on it.

504. Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant's visa: either the Applicant must be found to pass the character test, or the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation decision.

505. In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the considerations prescribed in the Direction.

(a) Primary Consideration 1 weighs heavily in favour of non-revocation;

(b) Primary Consideration 2 weighs heavily in favour of non-revocation;

(c) Primary Consideration 3 weighs moderately in favour of revocation;

(d) Primary Consideration 4 weighs moderately in favour of non-revocation;

(e) Other Considerations - International non-refoulement obligations is of neutral weight;

(f) Other Considerations - Extent of impediments if removed weighs moderately in favour of revocation;

(g) Other Considerations - Impact on victims weighs moderately in favour of non‑revocation;

(h) Other Considerations - Links to the Australian community weighs moderately in favour of revocation.

507. The Tribunal, having weighed the various Considerations, finds that the ongoing risk that the Applicant poses to the Australian community should he be released, outweighs the other Considerations in his favour.

508. The Applicant has a long history of repeatedly offending. It is manifestly clear that the Applicant suffers from mental health issues.

509. All three of the Applicant's marriages have been marked by alcohol fuelled outbursts of violence. In the case of his first two marriages, he was convicted of violently assaulting both wives. In the case of his current marriage, he was convicted of assaulting his stepdaughter.

510. The Applicant's current marriage is especially sad insofar as both his wife and stepdaughter suffer from mental health issues. It is the third marriage for both the Applicant and his wife.

511. Mr Stoker opined in his 8 October 2019 report that the Applicant may be suffering from Asperger's Syndrome, and while this was not a formal diagnosis, he nonetheless warned against the Applicant returning to his wife and stepdaughter - Exhibit 3 TB13 pp. 304 - 305.

512. The ongoing commitment of the Applicant to his third wife and stepdaughter has resulted in the breakdown of his relationship with his daughter. This is a sad and tragic development, and the fact that YJK left the family home and lived in a refuge adds a further dimension of misery to this very unfortunate situation.

513. It is the case that the EYK has suffered from a range of ailments and is not financially well off. It is also the case that her daughter, HBK, is struggling to attend University and also earn income to support herself and her mother. The absence of the Applicant has resulted in both EYK and HBK being placed in a difficult financial situation.

514. The Tribunal has also had regard to the good deeds performed by the Applicant both through his Church and on his own. The assistance he gave to TVN and her family was both life changing and potentially life saving.

515. It is also tolerably clear that the Applicant has good relations with BJH's two children as well as TVN's children. This removal from Australia will be disadvantageous to all four children.

516. The testimonials from those who have associated and worked with the Applicant demonstrate that he is highly regarded as a friend, associate and work colleague.

517. If not for his alcohol dependency, the Applicant would have been a successful businessman, having employed a number of persons in his cleaning business. Mr Stoker opined that the Applicant was a person of superior intelligence, being in the top 6% of the population - Exhibit 3 TB13 p. 305. There is little doubt that absent any mental health issues and alcohol abuse, the Applicant has the potential to be a very successful entrepreneur.

518. The Tribunal is satisfied that the Applicant would be able to reintegrate into South Korean society if he was returned. He is fluent in the Korean language, has family members to support him and would obtain the benefit of an advanced health care system. There is no reason to conclude that any of his medical conditions, physical and mental, would not be appropriately treated.

519. It is then very disappointing to conclude that the risk of the Applicant again reoffending outweighs all of these positive considerations.

520. The Applicant's history of repeat offending over a period of more than 15 years is of particular concern. The Tribunal formed the view, having watched and listened to the Applicant give evidence, that he is not remorseful for his previous conduct. The Tribunal is concerned that if the Applicant is released into the community that any present protestations of contrition would evaporate with the effluxion of time and a pattern of law breaking would again manifest itself.

521. If the Applicant did manifest in the future conduct of the type which has been a hallmark of his residence in Australia, then it is likely that both his wife and stepdaughter would be at risk of further assaults and any person, including Police Officers, who intervened to assist them would also be placed at risk. This is a risk which is of a magnitude that cannot be downplayed, and it is with regret, that the Tribunal has formed the view that the risk the Applicant poses to the Australian community outweighs those other Considerations which are in his favour.

(1) Pursuant to subsection 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth), the publication or other disclosure of the documents set out in Exhibit 5, and the information contained therein, is restricted to:

(d) Members and staff of the Tribunal in the course of performing their duties.

I certify that the preceding 522 (five hundred and twenty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

Counsel for the Applicant: Mr Peter Berg and Ms Parisa Hart