FEDERAL COURT OF AUSTRALIA
ADMINISTRATIVE APPEALS TRIBUNAL
DATE OF ORDER:
THE COURT ORDERS THAT:
2. The appeal be dismissed.
3. The appellant pay the first respondent’s costs, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 I have had the good fortune to read the reasons of O’Callaghan J in draft. I agree with his Honour’s reasons and with the orders he proposes. I only wish to add some remarks of my own.
2 There is no reason to believe that the Tribunal was under any misapprehension about the nature or extent of the appellant’s offending. It is trite that the Court is not to be concerned with “looseness” in the Tribunal’s language or “unhappy phrasing” of its thoughts: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. Yet, in effect, that is what this appeal invites. Furthermore, while at times the Tribunal might have been given to overstatement, the proposition that the Tribunal’s decision was affected by jurisdictional error for either reason advanced in the proposed grounds of appeal is, as O’Callaghan J put it, of doubtful merit.
3 On the question of whether the offences of which the appellant was convicted in July 2018 —contravention of the apprehended violence order and stalking or intimidation — were “offences involving violence”, I note the observations of Drs Carney and Barner in their article, “Prevalence of Partner Abuse: Rates of Emotional Abuse and Control” in the journal, Partner Abuse, Vol 3 (No 3), 2012:
Although such a wide variance of aggressive, abusive, or violent dispositions may evade attempts at clear categorization of emotional and psychological abuse, the empirical literature has been relatively uniform in delineating the “coercive” aspects of emotional abuse and its “terroristic” character as well as its subsequent effects on victims (Klein & Johnson, 2000; Stark, 2007).
4 Although no blow was struck when the appellant turned up at the workplace of his estranged wife, the information in the police facts sheet indicates that his behaviour was aggressive and intimidatory and that it was capable of, and did induce, fear. In cross-examination, the appellant said that he could not control his emotions and actions and was unaware “at the time” how serious his actions were, implicitly accepting that they were serious. Of course, his conduct would not be at the high end of the scale of potential offences of this character. And minds might differ about whether the offending was “serious”. Contrary to the argument advanced on his behalf, however, just because the appellant received a bond from the magistrate who convicted him does not mean that it was not open to the Tribunal to conclude that it was. For one thing, the Tribunal was considering the seriousness of the appellant’s conduct in the context of the Ministerial Direction. For another, the argument overlooks the fact (revealed by the appellant’s statutory declaration of 21 September 2018) that, before he was sentenced on 5 September 2018, he had been imprisoned for two months, having been refused bail. No doubt the magistrate took that into account.
5 It could not be said that the Tribunal’s findings as to the nature of the appellant’s offending were “simply not open on the evidence” or that “there is no logical connection between the evidence and the inferences or conclusions drawn”: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at  (Crennan and Bell JJ).
REASONS FOR JUDGMENT
6 The appellant appeals from orders made by the primary judge (Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  FCA 1808) dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming the decision of the Minister’s delegate to cancel his Return (Residence) (Class BB) (subclass 155) visa.
7 Senior Counsel for the appellant, who did not appear below, jettisoned the two grounds contended for before the primary judge, and seeks leave to argue two different grounds, viz:
1. The Tribunal’s decision was affected by jurisdictional error in that the Tribunal approached the Appellant’s past offending as if it involved more than one violent offence, which it did not, and as if the breaches of the [Apprehended Violence Order] were violent and serious offence[s], which they were not.
2. The Tribunal’s decision was affected by jurisdictional error in that the Tribunal made findings about the Appellant’s risk of reoffending on a factual canvass ranging across criminal allegations of which the Appellant had not been convicted in departure from the appropriate Briginshaw standard without giving weight to the presumption of innocence or exactness of proof.
relevant procedural history
8 The appellant is a citizen of Vietnam who first arrived in Australia in 1998 at the age of 18. He has lived here since. He was granted a spouse visa in December 2000 and a resident return visa in March 2017.
9 The appellant has a history of criminal offending, including convictions for offences relating to possession of stolen property, common assault, the supply of prohibited drugs, drink driving, and the breach of an Apprehended Violence Order, the details of which are described below.
10 On 26 February 2018, the appellant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his visa under s 501(2) of the Migration Act 1958 (Cth) (the Act) to which he responded. On 12 December 2018, a delegate of the first respondent (the Minister) cancelled the appellant’s visa under s 501(2) of the Act.
11 On 16 January 2019, the appellant applied to the Tribunal for review of the delegate’s decision, and on 4 April 2019 the Tribunal affirmed the delegate’s decision to cancel the visa: Vu and Minister for Home Affairs (Migration)  AATA 635.
12 The appellant then filed an application under s 476A of the Act in this court, seeking a declaration that the Tribunal fell into jurisdictional error in its decision, and an order that the decision of the Tribunal be quashed, on grounds that are no longer pursued.
13 After summarising background matters concerning the appellant’s history since his arrival in Australia, the Tribunal identified the issues for determination as being: (a) whether the Tribunal reasonably suspected that the appellant did not pass the character test; (b) whether the appellant had satisfied the Tribunal that he passed the character test; and (c) if the appellant did not pass the character test, how the discretion to cancel the appellant’s visa should be exercised under s 501(2) of the Act.
14 The Tribunal proceeded to consider the framework provided by Ministerial Direction 79 (Direction 79), which decision-makers must follow when determining whether or not a person passes the character test pursuant to s 501(6) of the Act, and when exercising their discretion in deciding whether or not to cancel a person’s visa. In considering whether the appellant passed the character test, the Tribunal first noted that s 501(6) stipulates that a person will not pass the character test if they have a substantial criminal record, which a person has if they have been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).
15 The Tribunal summarised the appellant’s criminal record principally by reference to his National Police Certificate issued in November 2016, which addressed his various offences up until 4 November 2013. That record includes the following.
16 Between November 2001 and September 2003, the appellant was sentenced for committing four criminal offences involving receiving stolen property, being in possession of goods reasonably suspected of being stolen, theft, and a failure to answer bail granted. Convictions were not recorded for these offences.
17 In October 2003, the appellant was sentenced to 18 months’ imprisonment for handling/receiving/retaining stolen goods.
18 In March 2006, the appellant was convicted of possessing goods suspected to be stolen on a premises and received a five year good behaviour bond.
19 In April 2006, the appellant was convicted of four counts of shoplifting and received a nine month sentence of imprisonment.
20 In May 2010, the appellant was convicted of common assault for which he received an 18 month sentence of imprisonment, suspended on a good behaviour bond for 18 months. Later that year he was convicted of mid-range drink driving for which he was fined, and the good behaviour bond was called up and he received a 12 month home detention sentence.
21 In 2013, the appellant was sentenced to three years and six months’ imprisonment with a non-parole period of two years for “Supply Prohibited Drug More Than Or Equal To Commercial Quantity”, “Supply Cannabis More Than Indictable & Less Than Commercial Quantity” and “Knowingly Participate in Criminal Group Assist Crime”.
22 The appellant was also convicted for breach of an Apprehended Violence Order in relation to his partner in 2018 (the breach occurred less than one month after the Apprehended Violence Order was issued), for stalking and intimidation offences in 2018, and for drink driving in 2019 (after the issuance of the National Police Certificate, and after he had received the NOICC).
23 The Tribunal determined, and the appellant conceded, that the appellant did not pass the character test as he has a substantial criminal record as defined under s 501(7)(c).
24 The Tribunal then turned to consider whether to exercise its discretion to cancel the appellant’s visa.
25 The Tribunal identified the protection of the Australian community from criminal or other serious conduct as a primary consideration in the exercise of its discretion pursuant to Direction 79 (Primary Consideration A). Section 9 of Direction 79, under the heading “Primary considerations – visa holders”, provides:
(1) In deciding whether to cancel a non-citizen’s visa, the following are primary considerations:
(a) Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia;
(c) Expectations of the Australian Community.
26 Section 9.1.1 also provides that “[i]n considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including … [t]he principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed”.
27 In the first paragraph of its consideration of Primary Consideration A, the Tribunal said:
 As noted above, the applicant has been convicted of multiple offences throughout the period of his residence in Australia. The Tribunal considers the offences to be quite serious, particularly the offences involving violence towards others, as well as drug offences which resulted in a significant term of imprisonment. Although the applicant claims his offending was not violent, the Tribunal is mindful that the applicant had been convicted of an assault, has been issued with an [Apprehended Violence Order] and has admitted to the Tribunal that he had made threats to his wife.
(The emphasised words in this paragraph and those below which recite the Tribunal’s relevant reasons are those which relate to the proposed new grounds of appeal.)
28 The Tribunal’s reasons continued:
 In relation to the assault offences, the applicant states in his declaration that he was walking on the street and abused by a victim who swore at home [sic] and made racist comments and who started the fight. The applicant admits that he overreacted when he hit the victim. The applicant states that he did not commence the assault but the victim abused and attacked him first. He was given a good behaviour bond and no prison sentence was imposed, suggesting that the court did not consider that the applicant would commit further violent offences. The applicant states that he avoided other confrontations since then and walked away. The police report refers to the applicant physically striking and kicking the victim several times.
 The applicant states that other than the 2009 incident, he does not have a history of violence and there has been no further violence since that incident. However, as noted above, the applicant has been issued with an [Apprehended Violence Order] in 2018 and he was convicted of the breach of an [Apprehended Violence Order] and stalking / intimidation. The applicant’s oral evidence to the Tribunal is that there were two occasions when the police was [sic] called to his home, that on one occasion during an argument with his wife, he broke her fan and he also admits that during another argument he threatened to burn his wife’s possessions. The applicant also admitted in oral evidence that he threatened his wife’s co-worker during the incident in July 2018. In the Tribunal’s view, such threats may also be considered as violent conduct and conduct intended to cause fear. The Tribunal does not accept the applicant’s argument that he does not have a history of violence. The applicant concedes that he makes ‘bad choices’ when he consumes alcohol.
 The Tribunal considers the nature and seriousness of the conduct to be significant. The assault offence, and the domestic violence conduct, involves violence or threat of violence towards others. Direction 79 states at paragraph 9.1.1(b) that in considering the nature and seriousness of the criminal offending, the decision-maker must have regard to the principle that crimes of a violent nature against women or children are viewed very seriously regardless of the sentence imposed.
 In relation to the breach of the [Apprehended Violence Order] and the intimidation / stalking offences, the applicant explains in his submission to the delegate of 21 September 2018 and his declaration that his relationship with his wife ended in June 2018 and his wife left him, taking the child. He was charged with intimidation of his wife and an [Apprehended Violence Order] was granted which prohibited him from approaching his wife. The applicant went to his wife’s place of work to ask her about their daughter and a worker called the police. The applicant states that the breach of the [Apprehended Violence Order] was not violent in nature but involved him going within 100 meters of his wife’s place of work to ensure about their child. The Tribunal accepts that this incident may not have involved violence, although the police report indicates that some threats may have been made.
 The applicant’s former partner gave oral evidence to the Tribunal and for the purpose of this decision she will be referred to as Ms N. She repeatedly stated that the applicant may do ‘bad things’ and that he cannot control himself when he is angry or when he drinks. Ms N initially told the Tribunal that she is not fearful of the applicant but later admitted that she is still afraid he may do something bad if he is angry and said that she is ‘a little afraid’ of Mr Vu. The Tribunal is of the view that any conduct that causes another person to be fearful for their safety and well-being is serious.
 The Tribunal considers the cumulative nature of the offending serious. Even though the more recent offences may be said to be less serious, the fact that they occurred after the applicant had made several undertakings not to re-offend and during the time when he was facing the cancellation of the visa and was aware of the consequences of his conduct, suggests the applicant’s inability, or unwillingness, to act in accordance with the laws. The offences took place over a lengthy period of time, starting within three years of the applicant’s entry to Australia and continuing to the present. Many of the offences, in particular the drug offence and the breach of the [Apprehended Violence Order], are serious and the applicant received custodial sentences in relation to several offences.
 The Tribunal finds that the frequency and cumulative effect of the applicant’s criminal conduct is a matter of serious concern. The nature and seriousness of his offending weigh heavily in favour of cancellation.
 The Tribunal considers the risk to the Australian community, should the applicant commit further offences or engage in other serious conduct, to be significant, given the serious nature of past offences and the fact that some of the offences included violence or threats of violence towards others. The Tribunal has formed the view that protection of the Australian community weighs in favour of the cancellation of the applicant’s visa.
 The applicant submits that he has not committed any serious offence since 2014. The applicant states that there was no violence during the incident when the [Apprehended Violence Order] was breached. The Tribunal is of the view, however, that a breach of an [Apprehended Violence Order] is in itself a serious offence as it may cause fear. Ms N’s evidence to the Tribunal is that at least during the relationship and at the time the [Apprehended Violence Order] was issued, she was fearful of the applicant. While the Tribunal acknowledges the applicant’s claim that there has been no serious misconduct since 2013, the Tribunal does not believe it is preferable to consider these offences in isolation.
 In terms of the protection of the Australian community, the Tribunal rejects the applicant’s claim that he would not re-offend or there is little chance of him re-offending. The Tribunal places weight on the fact that the applicant made the same undertakings in response to the first NOICC and these were supported by his treating psychologist, yet the applicant committed serious crimes since that time. Despite the applicant’s claim that his present circumstances are different because he no longer drinks, does not gamble and has a close relationship with his daughter, the Tribunal does not accept the applicant’s claims given that he has made the same undertakings in the past and has not complied with these. The Tribunal does not accept that the chance of the applicant reoffending are insignificant. The Tribunal has formed the view that there is a real likelihood of the applicant reoffending or engaging in other serious conduct. Given the frequency of the offending and the violent nature of some of the offences, the Tribunal considers that the risk of reoffending is considerably more than negligible. If such offending occurs, it poses a risk to the community. The Tribunal has formed the view that protection of the Australian community would be in favour of the cancellation.
the appellant’s submissions
29 Counsel for the appellant submits that leave to amend the Notice of Appeal should be granted because:
(1) there was no evidence that the appellant’s breach of the Apprehended Violence Order was violent, and such a finding went beyond the Minister’s submission and the characterisation in the police records;
(2) the finding by the Tribunal that a breach of an Apprehended Violence Order “is in itself a serious offence as it may cause fear” is a “sweeping generalisation [and] was not a rational basis to find that this breach … was serious or violent”;
(3) “[e]ven if the [a]ppellant’s admissions under cross-examination to breaking a fan, and threatening to destroy his ex-wife’s things could be characterised as violent, that is not conduct for which he was convicted” and the Tribunal “was wrong to reason from the premise that the [a]ppellant has been convicted of repeated violent offending”; and
(4) “[i]n considering the risk of reoffending, the past offending was the critical consideration” and “[f]indings of risk of reoffending made on a factual canvass ranging across criminal allegations of which the [a]ppellant had not been convicted meant a departure from the appropriate Briginshaw standard”.
30 Submission (4) in the preceding paragraph was further explained in the appellant’s written submissions as follows:
In [HZCP v Minister for Immigration and Border Protection  FCAFC 202] at  Colvin J cited Dixon J in Briginshaw v Briginshaw  HCA 34; (1938) 60 CLR 336 at 363, where his Honour captured the essence of the Briginshaw standard by saying ‘the nature of the issue necessarily affects the process by which reasonable satisfaction is attained’. Colvin J then observed ‘If there is no conviction and a party makes a claim that a crime has been committed by another then due “weight is to be given to the presumption of innocence and exactness of proof is expected”.’ Here, the Tribunal did not give weight to the presumption of innocence or exactness of proof. Instead the Tribunal reasoned carelessly and without factual foundation that more than one past offence was violent.
31 The appellant seeks to contend that the error in the Tribunal’s finding that he had committed more than one violent offence was material because it “used as a foundation the violent and serious conduct of the [a]ppellant to hold that the Australian community needs protection from him and would also expect his visa to be cancelled” and “viewed his conduct as sufficiently serious to weigh the considerations of protection and expectations of the community heavier than all other considerations”. The appellant seeks to contend that “those two considerations were [thus] informed by facts not supported by the evidence and therefore they were afforded more weight than the evidence could allow”, which “is sufficiently material so as to constitute jurisdictional error” (citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at ,  (Crennan and Bell JJ)).
32 The appellant seeks to contend, therefore, that “[h]ad the error not been made” there is a realistic possibility the outcome of the Tribunal’s decision may have been favourable to the appellant, because matters may have been weighed differently.
THE MINISTER’S SUBMISSIONS
33 The Minister submits that no error is identified by the appellant in the reasoning of the primary judge, and that the appeal can best be characterised as one in which the appellant seeks “to have another shot at the decision under review” by addressing directly what he contends are errors in the decision of the Tribunal: see AFE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  FCA 162 at  (Katzmann J). The Minister submits, in any event, that neither proposed ground has merit, and that leave to rely on the new grounds should be refused, and the appeal dismissed.
34 The Minister’s written submissions may be summarised as follows.
35 First, both proposed grounds of appeal involve the assertion that the Tribunal proceeded to make its decision by erroneously treating the appellant as having been convicted of more than one crime of violence when in fact he had only one conviction that was for a crime of violence (referring to the 2010 common assault conviction).
36 Secondly, the Tribunal referred expressly at  to the “assault offence [singular] and the domestic violence conduct” which it found involved “violence or threat of violence towards others”.
37 Thirdly, the Tribunal made clear that in its evaluative assessment, causing fear of violence under s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (Crimes (Domestic and Personal Violence) Act) could be considered violent conduct and conduct intended to cause fear (at ); that conduct that causes another person to be fearful for their safety and wellbeing is “serious” (at ); and that the breach of the Apprehended Violence Order “may not have involved violence, although the police report indicates that some threats may have been made” (). The Minister submits that such an evaluative assessment was clearly open to the Tribunal.
38 Fourthly, the appellant is wrong to say (as his written submission asserts) that the Tribunal stated that the appellant had been “convicted of repeated violent offending”, or that the appellant’s “breach of the AVO was violent and serious”, because the Tribunal said no such things.
39 Fifthly, as to the Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) point sought to be raised in proposed ground two, the Minister submits that the Tribunal is not bound to apply that “principle” (citing Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 at ,  (Logan J), - (Flick and Perry JJ)), not least because it is not bound by the rules of evidence: see Administrative Appeals Tribunal Act 1975 (Cth) s 33. The Minister also submits that the passage from the judgment of Colvin J in HZCP v Minister for Immigration and Border Protection  FCAFC 202 about the principle has nothing to do with the issue sought to be raised here.
40 Sixthly, and in any event, proposed ground two goes no higher than a contention that too much weight was placed on one factor, which means that it cannot succeed (citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 (Mason J): “it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power”).
41 No explanation was given as to why the proposed grounds of appeal were not raised before the learned primary judge. The fact that the appellant retained new counsel is not, of itself, sufficient: BLX16 v Minister for Immigration and Border Protection  FCAFC 176 at  (Moshinsky, Steward and Wheelahan JJ); DKT16 v Minister for Immigration and Border Protection  FCAFC 208 at  (Davies, Moshinsky and Snaden JJ).
42 In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at 598-599 -, the Full Court said:
Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration and Multicultural Affairs [ FCA 1348]; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at - and .
In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:
It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.
The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.
See also Murad v Assistant Minister for Immigration and Border Protection (2017) 250 FCR 510 at 516 - (Griffiths and Perry JJ), and also 524-525 - (Mortimer J).
43 It is clear therefore that merit alone will generally be insufficient for the grant of leave. As Bromwich J observed in Han v Minister for Home Affairs  FCA 331 at - (observations which were endorsed by Perry J in BEG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  FCA 660 at ):
It may be convenient, and in many cases it will be entirely appropriate, to decide the question of whether to grant leave to advance an entirely new proposed ground of review in the form of a ground of appeal by giving dominant, but not exclusive, weight to the merit of the proposed ground. Merit is necessary, but not of itself ordinarily sufficient. Other features will generally need to be absent or present. Possible further considerations for the granting of leave in addition to merit include such things as an acceptable explanation for the ground not being run below, the nature and extent of any injustice (beyond a merely adverse result) that may result if the issue raised is not addressed, and the lack of prejudice to the opposing party. The decision to grant or refuse leave is then made by weighing the competing considerations, which are sometimes finely balanced.
The approach of relying predominantly on merit as the basis for leave becomes more problematic when there is no adequate explanation for the ground not having been advanced at the trial in the court below and other circumstances also tell against leave being granted. Care needs to be taken to ensure that a focus on merit does not have the troubling practical effect that a new ground sought to be raised is effectively heard and determined by this Court in the exercise of its appellate jurisdiction as though leave was not required. If that happens, the appellant may get to run an appeal which in truth is a new trial upon nothing more compelling than the fact that it might have succeeded if it had been run below. If the argument in support of the proposed ground finds favour, leave is then granted, and the appeal is allowed. If the argument does not find favour, leave is refused and the appeal dismissed. The grant or refusal of leave then turns on the success or failure of the new ground, making leave a mere formality. If so, an important principle in the administration of justice may be lost in the process.
44 In this case, no adequate explanation has been proffered for the failure to raise the points below and the points, for reasons which I will explain, are of doubtful merit, to say the least.
45 In my view, and quite apart from anything else, the submissions advanced by the appellant in support of the two proposed grounds of appeal are founded on a false premise, viz, that during the course of the appellant’s lengthy criminal history he has only committed one offence involving violence (the “common assault” for which he was convicted in 2010) and that his convictions for stalking/intimidation and breach of the Apprehended Violence Order were not “serious”.
46 In order to explain why, it is necessary to recite some additional matters of fact (which are found in the more than 600 pages that comprise the Appeal Book), and of law.
47 The Apprehended Violence Order referred to above, which it is to be inferred was before the Tribunal because a copy of it had been sent to the Department by the appellant’s then solicitor, was in these terms:
VIOLENCE ORDER - Hung Van VU
Crimes (Domestic and Personal Violence) Act 2007
Hung Van VU, you must follow the orders below. It is a criminal offence not to follow these orders. You could be arrested by police and charged. If you are convicted, you could go to prison for up to 2 years and be fined up to $5,500.
You could also be charged with other criminal offences. If you are convicted of these offences, you could receive a much higher penalty.
You must follow these orders everywhere in Australia.
You must follow these Order(s) until 12 June 2019.
The Order(s) have been made to protect …
You must follow these orders even if … doesn’t want you to or tells you that you don’t need to. If you attempt to do any of the things below, it will still be a criminal offence called a breach.
Orders about behaviour
1. You must not do any of the following to … or anyone she has a domestic relationship with;
A) assault or threaten her
B) stalk, harass or intimidate her, and
C) intentionally or recklessly destroy or damage any property that belongs to or is in the possession of …
• You must not do any of these things in person, through another person, or through electronic communication and devices (for example, by phone, text messages, emails, Facebook or other social media, or GPS tracking).
• You must not do or say anything that may make … feel frightened, or feel that you may harm her or damage her belongings in any way, including any jointly owned property and pets.
Orders about contact
4. [sic] You must not approach or be in the company of … for at least 12 hours after drinking alcohol or taking illicit drugs.
• You must not approach or be with … for at least 12 hours after drinking alcohol or taking illicit drugs. For example, if you have your last drink at 9pm, you cannot approach her, her home or her work until after 9am the next day. If you live together, this means that you must find somewhere else to stay for 12 hours.
• You must stay away even if she asks you not to.
11. [sic] Not to go within 100 meteres [sic] of [the protected person’s workplace].
Most relationships do not include fear, control or violence. You are now part of a minority of people who has one of these orders, and this is recorded on the NSW Police system.
When children are exposed to violence in the home, they are much more likely to suffer from depression, anxiety and aggression, and they do worse at school.
Many people take this as a turning point.
If you would like to talk to someone about managing your emotions or stresses, help is available. Call:
• Men’s Referral Sevice on 1300 766 491
• Relationships Australia on 1300 364 277
• The Parent Line on 1300 1300 52.
If you breach this order:
• You could go to prison for up to 2 years and be fined up to $5,500
• You could be charged with other criminal offences (for example, assault or intimidation), as well as the breach of this order. If convicted of these offences, you could receive a higher penalty such as more time in prison.
Immediately take all firearms and prohibited weapons, along with related licences and permits you have to the police. If you keep any of these, you could be in breach of this order and could also be charged with other criminal offences.
If you have any questions about the order, you can contact:
• a solicitor
• Legal Aid NSW on (02) 9219 5000
• Local Police Station and ask for the Domestic Violence Liaison Officer (if you are the protected person)
• LawAccess NSW on 1300 888 529 or www.lawaccess.nsw.gov.au
• Interpreting Services on 131 450 or www.tisnational.gov.au
Hung Van VU, Male, 9 June 1979 … of … ROSELANDS NSW 2196
The protected person(s) is or has been married to the defendant.
LSCON LACHLAN TEASEL
ST GEORGE PAC
KOGARAH NSW 2217
Police Application ID:
Date of order
13 June 2018
Duration of Order
12 Months from 13/6/2018
Case number and court:
2018100180138 Sutherland Local Court of NSW
Nationally Recognised DVO
Signature of Defendant ______________________________
The defendant was present in court when the order was made.
48 The two offences for which the appellant was convicted in 2018 in relation to his breach of the Apprehended Violence Order and stalking and intimidation were described by the NSW Police as follows:
Crimes (Domestic and Personal Violence) Act 2007, Section 14(1)
Contravene prohibition or restriction in an apprehended domestic violence order between 11:40 am and 12:15 pm on 05/07/2018 at Riverwood.
did knowingly contravene a restriction specified in an order.
Crimes (Domestic and Personal Violence) Act 2007, Section 13(1)
Stalk or intimidate intending to cause fear of physical or mental harm (domestic violence offence)
between 11:40 am and 12:15 pm on 05/07/2018 at Riverwood.
did stalk/intimidate … with the intention of causing the said … to fear physical or mental harm.
49 Sections 13 and 14 of the Crimes (Domestic and Personal Violence) Act are defined in s 4 of that Act to be “personal violence” offences. They relevantly provide:
13 Stalking or intimidation with intent to cause fear of physical or mental harm
(1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence.
Maximum penalty—Imprisonment for 5 years or 50 penalty units, or both.
(2) For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship.
(3) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person.
(4) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm.
(5) A person who attempts to commit an offence against subsection (1) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed.
14 Offence of contravening apprehended violence order
(1) A person who knowingly contravenes a prohibition or restriction specified in an apprehended violence order made against the person is guilty of an offence.
Maximum penalty—Imprisonment for 2 years or 50 penalty units, or both.
(4) Unless the court otherwise orders, a person who is convicted of an offence against subsection (1) must be sentenced to a term of imprisonment if the act constituting the offence was an act of violence against a person.
(6) Where the court determines not to impose a sentence of imprisonment, it must give its reasons for not doing so …
50 The appellant was convicted of those offences and was put on a good behaviour bond, which he accepted.
51 The New South Wales Police “Facts Sheet” in relation to the offences, which it is to be inferred was before the Tribunal because a copy of it had been sent to the Department by the appellant’s then solicitor, disclosed the following:
The accused in this matter is, Hung Van Vu (39 years), the victim is … (23 years) and the witness is … (29 years). The accused and victim were in an intimate relationship for the past 2 and a half years and as a result of their relationship they have a daughter … (2 years). The relationship broke down on the 9th June, 2018. The accused resides at … Roselands and the victim and child reside at a new address not known to the accused. The witness is a friend of the victim and works with her at …
On the 9th June, 2018 the accused was charged with intimidation (DV) on the victim. H68726973 relates. Subsequently an Apprehended Domestic Violence Order was applied for by police, granted and served listing the accused as the defendant and the victim as the person in need of protection (PINOP).
On the 13th June, 2018 the accused attended Sutherland Local Court where a final Apprehended Domestic Violence Order was granted and served on him listing him as the defendant and the victim as the person in need of protection (PINOP). The order as follows;
1. You must not do any of the following to … or anyone she has a domestic relationship with: A) assault or threaten her, B) stalk, harass or intimidate her, and C) intentionally or recklessly destroy or damage any property that belongs to or is in the possession of …
4. [sic] You must not approach or be in the company of … for at least 12 hours after drinking alcohol or taking illicit drugs.
11. [sic] Not togo within 100 meters of [the victim’s workplace].
The order expires on the 12th June, 2019.
About 11:30am Thursday 5th July, 2018 the victim was at her work place … About this time the accused attended the address. The accused stood at the entrance of the shop. The victim was attending to a client.
The accused said, ‘Where is our child?’
The victim replied, ‘She is in child care.’
The accused began to yell at the victim.
Other staff members inside the store told the accused to leave as he was scaring away customers. The witness stated she will call the police.
The accused said, ‘Call them I will wait.’
The accused directly spoke to the witness.
The accused said, ‘If you continue to let her stay at your house I won’t let you in piece [sic – peace].’
About 11:42pm Thursday 5th July, 2018 victim contacted police and the witness spoke with the 000 operator due to the victim’s limited English. The accused left the store a short time later.
About 12:15pm Thursday 5th July, 2018 police attended [the victim’s workplace]. Police spoke with the victim and witness. Police obtained a notebook statement from the witness. Due to the victim’s limited English police arranged for a credited Vietnamese Interpreter to attend Riverwood Police Station to obtain a statement from the victim.
About 3:30pm Thursday 5th July, 2018 Vietnamese credited Interpreter registered number, CPN7B145C attended Riverwood Police Station. Police obtained a statement from the victim. The victim informed police what happened today at her place of employment along with that the accused had been contacting her through phone calls and text messages prior to this date. The victim expressed concerns and scared the accused will find out where she is living and continue this intimidating and harassing behaviour.
Police made attempts to get in contacted [sic] with the accused leaving a voice message on his mobile phone … informing him to attend Hurstville Police Station.
About 9:45am Friday 6th July, 2018 the accused attended Hurstville Police Station. The accused was arrested and cautioned. The accused was conveyed to Kogarah Police Station.
Upon arrival the accused was introduced to the custody manager and read his rights under Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002. All LEPRA safeguards adhered to. The accused was given the opportunity to participate in an electronic recorded interview (ERISP) to which he agreed to. The accused participated in ERISP recording number R0540961. The accused made admissions to breaching the apprehended domestic violence order being at the victims [sic] work and within 100 metres [thereof].
The accused said, ‘I was in Riverwood around the shopping mall... I went to the shop... I want to ask where is my daughter 11:30am.. Yes I know that order.’
The accused denied acting in an intimidating manner towards the victim and the witness.
The accused is now charged before the court.
52 There is no suggestion in the language of s 13 of the Crimes (Domestic and Personal Violence) Act that the “violence” to which those provisions are directed is limited to physical violence, as the appellant’s two proposed grounds of appeal implicitly assume, and in my view, the Tribunal was correct to describe “the domestic violence conduct” as conduct that “involve[d] violence or threat of violence towards others” (at ).
53 The language of s 13 makes it clear that the offence may be committed by stalking or intimidating with the intention of causing fear of physical or mental harm and that the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm. Such an offence is properly described as one involving “violence”.
54 In Yemshaw v Hounslow London Borough Council  UKSC 3; 1 WLR 433, the Supreme Court of the United Kingdom considered the meaning of the phrase “domestic violence or other violence” in s 177(1) of the Housing Act 1996 (UK). The facts (as correctly set out in the headnote of the WLR report) were as follows. The claimant, a married woman with two young children, left the home in which she lived with her husband, taking the children with her, and sought the help of the local housing authority. When interviewed by housing officers, she complained about her husband’s behaviour, which included shouting at her in front of the children and not giving her any money for housekeeping, and she said that she was scared that if she confronted him he would hit her or take the children away from her. The housing officers decided that she was not homeless as her husband had never actually hit her or threatened to do so. A review panel and the judge upheld that decision. On the claimant’s appeal, the Court of Appeal held that “violence” was limited to physical contact and the appeal was dismissed.
55 Ms Yemshaw successfully appealed to the Supreme Court, which held that the term “domestic violence” included not only physical violence, but also threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, might give rise to the risk of harm.
56 As Baroness Hale JSC (with whom Lord Hope DPSC, Lords Rodger, Walker and Brown JJSC agreed) said (at 440 ):
I can readily accept that [physical violence] is a natural meaning of the word [violence]. It is, for example, the first of the meanings given in the Shorter Oxford English Dictionary. But I do not accept that it is the only natural meaning of the word. It is common place to speak of the violence of a person’s language or of a person’s feelings. Thus the revised 3rd edition, published in 1973, also included ‘vehemence of personal feeling or action; great, excessive, or extreme ardour or fervour … passion, fury’; and the 4th (1993), 5th (2002) and 6th (2006) editions all include ‘strength or intensity of emotion; fervour, passion’. When used as an adjective it can refer to a range of behaviours falling short of physical contact with the person …
(Emphasis in original.)
57 Baroness Hale JSC went on to say that “‘[v]iolence’ is a word very similar to the word ‘family’. It is not a term of art. It is capable of bearing several meanings and applying to many different types of behaviour” (at 443 ).
58 Baroness Hale JSC also specifically included the offence of stalking as one involving a “fear of violence”, in the following passage (at 444 ):
Silent phone calls, heavy breathing … stalking behaviours … can all put the victim in very real (and justified) fear of violence in the narrow sense. They should be covered by the concept of violence.
59 Whether in any given case a statutory use of the word “violence” will include stalking or intimidation, or forms of non-physical harm, will, of course, depend on the statutory language in question: compare Sok v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 144 FCR 170 (Branson J, Marshall J agreeing) (yes); and Attorney-General (Tas) v CL (2018) 28 Tas R 70 (Porter AJ, Blow CJ and Wood J agreeing) (no). But in the case of s 13 – which, after all, is a provision contained in an Act the title of which includes the word violence and which, along with s 14, is defined as a “personal violence offence” – for my part I would have little hesitation in concluding that the offence may properly be characterised as one that involves violence or the threat of violence towards others, and that the conduct of the appellant described in the Facts Sheet prepared by the NSW Police, in the emphasised passages in particular (at  above), may equally be so described.
60 It follows, in my view, that if the Tribunal is to be understood as saying that the offence with which the appellant was charged and convicted under s 13 of the Crimes (Domestic and Personal Violence) Act was an offence “involving violence towards others”, that is an accurate statement.
61 The appellant also contended that the offences under ss 13 and 14 of the Crimes (Domestic and Personal Violence) Act, contrary to the Tribunal’s finding, were not serious. Indeed, the appellant’s written submission went so far as to say that the finding by the Tribunal that a breach of an Apprehended Violence Order “is in itself a serious offence as it may cause fear” was a “sweeping generalisation” and not “rational”. That submission is, with respect, untenable. The offences created by those provisions are self-evidently serious, carrying severe penalties. And the conduct of the appellant in breach of the Apprehended Violence Order set out in the emphasised passages of the Facts Sheet was, in my view, serious, and the Tribunal was correct so to label it. In any event, it cannot possibly be said to be “irrational” to characterise as “serious” the wilful disobedience of an Apprehended Violence Order which succeeded in inculcating in the appellant’s estranged wife one of the very fears that the order was designed to prevent.
62 It follows that the proposed grounds of appeal, both of which, as the Minister submitted, are founded on the assertion that the Tribunal proceeded to make its decision by erroneously treating the appellant as having been convicted of more than one crime of (serious) violence, are of “doubtful merit”.
63 To the extent that proposed ground two seeks to make a separate point about something referred to as a “factual canvass”, and the judgment of Dixon J (as his Honour then was) in Briginshaw, it is hopeless. The paragraph of the judgment of Colvin J in HZCP v Minister for Immigration and Border Protection  FCAFC 202 at  (HZCP) upon which the appellant relies is as follows:
Nevertheless, in any decision‑making context (administrative or judicial) some modes of proof carry considerably more weight than others. Also, the weight to be afforded particular material depends upon the seriousness of the allegation the decision‑maker is asked to accept, any inherent unlikelihood of its occurrence and the gravity of the consequences that may flow from making the finding. In the classic exposition of this point by Dixon J in Briginshaw v Briginshaw  HCA 34; (1938) 60 CLR 336 at 363, his Honour captured its essence by saying ‘the nature of the issue necessarily affects the process by which reasonable satisfaction is attained’. If there is no conviction and a party makes a claim that a crime has been committed by another then due ‘weight is to be given to the presumption of innocence and exactness of proof is expected’. Likewise, if the claim made is that a person has been wrongly convicted or sentenced or the facts upon which that conviction or sentence were based were untrue then due weight must be given to the character of that claim and its seriousness.
64 The Tribunal did not assert that the appellant had committed a crime when it recorded the fact that the appellant had admitted, during the course of being cross-examined before the Tribunal, that on two occasions the police had been called to his home, that on one occasion during an argument with his wife he broke her fan, and that on another occasion he threatened to burn his wife’s possessions. The Tribunal made reference to those admissions in the context of addressing the appellant’s claim that, other than his conviction for assault in 2010, he did not have a history of violence and there had been no further violence since that incident. Given those admissions, the fact that the appellant has been issued with an Apprehended Violence Order in 2018, that he was convicted of the breach of that order and stalking/intimidation, and his other admission that that he had threatened his wife’s co-worker in July 2018, the Tribunal was on solid ground in rejecting the appellant’s contention that he did not have a history of violence. None of that has anything to do with Briginshaw, or the passage from the judgment of Colvin J in HZCP. Contrary to what was submitted on behalf of the appellant, there was no error in the Tribunal having regard to conduct for which there was evidence to support a factual finding that the conduct had occurred, even though there was no conviction in respect of that conduct.
65 If I am wrong in the view that I take about the errors alleged, and assuming that the use of the plural “offences” in  and  of the Tribunal’s reasons is an error (or in the case of  at least anything more than a typographical error), and that it is “irrational” to characterise the appellant’s breach of the Apprehended Violence Order as “serious”, they are not material errors. This is because, reading the reasons as a whole and in particular having regard to the manner in which the Tribunal weighed the various matters required to be considered by Direction 79 and the cumulative effect of the appellant’s long history of offending, such errors could not have deprived the appellant of a realistic possibility of the cancellation decision being reversed: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at 134-135 - (Kiefel CJ, Gageler and Keane JJ). In particular, it was the cumulative nature of the appellant’s offending, which continued after he had made several undertakings to the Department not to reoffend, that was decisive in leading the Tribunal to conclude, among other things, that the risk of the appellant re-offending was considerably more than negligible, and that it was not persuaded by the appellant’s evidence that he had reformed since committing the offences: see by way of example the Tribunal’s reasons at - and .
66 I should add one further matter. During the course of oral argument, it emerged in the course of an exchange with the court that the statement made by the Tribunal at , that the appellant had “admitted” that during the course of an argument he had threatened to burn his wife’s possessions, was inaccurate. The transcript of the cross-examination of the appellant on that point goes no further than a statement made by the appellant (through his interpreter) that he could not recall having done so. That is a point that did not occur to anyone until the exchange occurred. No challenges to any of the findings of fact made by the Tribunal have been made either before the primary judge or on this appeal. Further, the appellant’s own written submissions refer to “the [a]ppellant’s admissions under cross-examination to breaking a fan, and threatening to destroy his ex-wife’s things …” Although counsel for the appellant sought to make something of the point in reply, in my view, to the extent that the Tribunal may be said to have made a mistake in saying that the appellant had admitted threatening to burn his wife’s possessions, there was sufficient evidence before the Tribunal that he had in fact done so from what the appellant’s ex-wife had reported to the police. In particular, a NSW Police report dated 9 June 2018, prepared in support of the obtaining of the Apprehended Violence Order records: “[o]n the evening of the 3rd of June 2018 the accused called the victim over the phone asking for his passport and to bring his daughter to him immediately. The accused said if the victim didn’t do so straight away he would burn all of her belongings.” Further, the appellant’s ex-wife confirmed during the course of her cross-examination before the Tribunal that she had told the police that the appellant had threatened to burn her property. No contrary proposition was put to the appellant’s ex-wife on behalf of the appellant.
67 In my view, characterising the threat as an admission, rather than as an allegation by the appellant’s wife, was entirely immaterial, because there was ample evidence before the Tribunal to justify it making a factual finding that the appellant had made threats to his wife: see the reasons of the primary judge in Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  FCA 1808 at -, .
68 In my view, the application to amend the notice of appeal should be refused and the appeal dismissed, with costs.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O’Callaghan.
Dated: 26 May 2020
REASONS FOR JUDGMENT
69 I agree with O’Callaghan J and the additional remarks of Katzmann J.
Dated: 26 May 2020