Adam and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Adam and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 7 (5 January 2024)
Division:GENERAL DIVISION
File Number: 2023/7741
Re:Ashraf Adam Ishag Adam
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:5 January 2024
Place:Melbourne

The Tribunal affirms the decision of a delegate of the Respondent dated 16 October 2023 not to revoke the mandatory cancellation of the Applicant’s visa.
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Senior Member D. J. Morris
Catchwords
MIGRATION – applicant is a citizen of the Republic of Sudan – applicant held Class BC subclass 100 spouse visa – visa cancelled under s 501(3A) of Act on the basis applicant did not pass character test as had substantial criminal record – applicant made representations to Department – delegate of Minister decided not to revoke mandatory cancellation – applicant sought review by Tribunal – consideration of ministerial Direction No 99 – primary considerations – other considerations – serious offending – family violence offending – best interests of minor children in Australia – legal consequences of decision – applicant’s ties with Australia – impediments if removed – decision under review is affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Migration Act 1958
Cases
Arachchi v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311
FYBR v Minister for Home Affairs (2019) 272 FCR 454
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Secondary Materials
Department of Foreign Affairs and Trade – Crisis Hub – Sudan conflict ( accessed 2 January 2024)
Migration Act 1958 – direction under s 499 – Direction No. 99 – visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (made 23 January 2023/commenced 3 March 2023)
REASONS FOR DECISION
Senior Member D. J. Morris
5 January 2024

The Applicant, Mr Ashraf Adam Ishaq Adam, is a citizen of the Republic of Sudan. He was born in 1991. At the age of 14 he left Sudan for Egypt. He arrived in Australia in 2006 as the holder of a provisional partner visa. He has not departed Australia since that arrival. In 2008 he was granted a Class BC Subclass 100 Spouse visa (‘the visa’).
On 24 March 2023, the visa was cancelled under s 501(3A) of the Migration Act 1958 (‘the Act’). Mr Adam was invited to make representations to a delegate of the Respondent as to whether either he did not fail the character test or, even if so, there was ‘another reason’ in the terms of s 501CA of the Act to revoke the mandatory cancellation of the visa. He did so on 29 March 2023.
On 16 October 2023, a delegate of the Respondent decided, under s 501CA(4) of the Act not to exercise the discretion to revoke the mandatory cancellation decision.
As he is entitled to do, on 20 October 2023, Mr Adam sought review of the decision not to revoke the mandatory cancellation by the Tribunal.
Section 500(6L) of the Act provides that if an Applicant applies to the Tribunal for review of a decision under s 501CA(4) not to revoke a decision to cancel a visa and the Applicant is within the migration zone, then the Tribunal must make a decision within a period of 84 days after the day in which the Applicant was notified of the reviewable decision. If the Tribunal has not made a decision within that period, the decision under review is taken by operation of law to have been affirmed by the Tribunal. To avoid this happening, the Tribunal must make a decision in relation to Mr Adam’s application by 8 January 2024.
HEARING
A hearing was held on 7 December 2023. The Tribunal was advised by HMP Loddon, where the Applicant is serving a term of imprisonment, that he would prefer to appear by video link rather than in person. To ensure that was indeed his preference, an interlocutory hearing was held at which Mr Adam confirmed it was his preference to appear by video link. Accordingly, and without objection from the Respondent, the Tribunal gave leave under s 33A of the Administrative Appeals Tribunal Act 1975 for the hearing to be conducted by video link. Mr Adam represented himself, made submissions and gave oral evidence. He was cross-examined by Mr Adam Cunynghame of Sparke Helmore Lawyers, representing the Respondent. No other witnesses were called by the parties.
The Tribunal admitted into evidence the following documents:
(a)Letter of the Applicant, and information on the Sudan-Darfur conflict (Exhibit A1);
(b)Volume of ‘G’ documents (GD) lodged on 28 September 2023 (Exhibit R1);
(c)Tender bundle (TB) lodged on 1 December 2023 (Exhibit R2).
The Tribunal also took into account a Statement of Facts, Issues and Contentions (‘SFIC’) submitted by the Respondent.
At the conclusion of the hearing, the Tribunal reserved its decision. For the following reasons, the Tribunal has decided to affirm the delegate’s decision of 16 October 2023.
PERSONS REFERRED TO IN THESE REASONS
There are three domestic partners of the Applicant who will be referred to as, in chronological order, EP, JP and TP. EP is the mother of the Applicant’s two daughters, who will be referred to as LA and DA. JP is the mother of Mr Adam’s son, NA. The Applicant did not have children with TP.
OPENING SUBMISSIONS
The Respondent
Mr Cunynghame referred to the SFIC. He submitted that Mr Adam does not pass the character test because he was sentenced to a term of imprisonment for a period of 12 months or more (see ss 501(6)(a) and 501(7)(c) of the Act).
The Respondent submitted that, accordingly, the determinative issue for the Tribunal is whether there is another reason under s 501CA(4) of the Act why the cancellation of Mr Adam’s visa should be revoked. In this regard the Tribunal must have regard to the direction made by the Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 99.
The SFIC referred to offending by the Applicant which should in the Respondent’s view be viewed as very serious, involving attempt aggravated carjacking, assault with weapon, unlawful assault, contravening a family violence intervention order with the intention of causing harm or fear, and resisting a police officer.
The SFIC recorded that there has been an increase in the level of violence in Mr Adam’s offending and in its frequency, and that his offending consists of ‘about two dozen’ convictions between 2016 and 2022. Mr Cunynghame noted that Mr Adam has persistently breached family violence orders, a Community Corrections Order, and bail, which indicates a disregard for Australian law. He has numerous weapons offences including being in possession of firearms in breach of orders and possessing unregistered firearms. Mr Adam also has a number of driving offences and has ‘repeatedly’ been convicted of possessing methylamphetamine.
In terms of Mr Adam posing a risk to the community if his visa is restored, Mr Cunynghame noted that the Respondent’s SFIC focusses on the Applicant’s remorse as to his offending, taking into account his drug history and structures of support if he is released.
Mr Cunynghame noted that in evidence was a report of Dr Aaron Cunningham, psychologist (TB, p 74) dated 29 August 2022, Dr Cunningham assessed Mr Adam on 24 August 2022 and administered a psychometric tool ‘HCR-20’ to assess his risk of future violent offending. Mr Cunynghame noted that it was Dr Cunningham’s conclusion that
‘On the basis of the current HCR-20 risk assessment, Mr Adam presents a Moderate risk of future violent offending.’
In terms of Mr Adam’s ties to the Australian community, Mr Cunynghame noted that the Applicant has had relationships with partners in Australia and has three Australian-born children. He has a positive employment history. In terms of the consideration in the Direction of the best interests of minor children in Australia, the Respondent submitted that this primary consideration weighs in favour of the Applicant.
In terms of the part of the Direction which requires decision-makers to consider, as relevant, the legal consequences of a decision, Mr Cunynghame submitted that considerable emphasis should be placed on the fact that the Applicant can apply for a protection visa and that the Minister does not say that Mr Adam is in a category of persons who would be subject to indefinite detention. Mr Cunynghame submitted that, while the Respondent accepts that there is general instability in Sudan, the Applicant’s claims regarding harm that might befall him if he is returned to Sudan are generic. The Respondent accepted that Mr Adam does not have general familiarity with Sudan and does have mental health issues, including a diagnosis of post-traumatic stress disorder (PTSD).
The Applicant
Mr Adam conceded that he did not pass the character test. In terms of his chances of re-offending he said:
‘I have changed. I have got back to my religion. I have been praying. There is no chance of getting back into drugs. I don’t want my kids to grow up without the support of their father. I’m not the same person – I have been doing programmes and have finished a drug and alcohol course. I have been in touch with my kids and have built up a strong relationship. I have a sick daughter who has lost her hearing. I don’t want my son to grow up without recognising his father. My dad is getting older, and I need to look after him soon. My daughter has started at primary school. She relies on me. I need to be there for her. Every time I talk on the phone it is a little bit heart-breaking for me. The mother of my kids is struggling a lot. My daughter [DA] has lost her hearing and needs a lot of medical support; she needs to be introduced to the community. My son [NA] is seven years old and is almost growing up without knowing who his father is.’
In respect of his offending, Mr Adam said that he had done wrong things in the past but that he is now a different person. He said he has no connexion with anyone in Sudan. He said he remembers seeing a lot of dead people when he was young, with friends and neighbours losing their lives. He remembers ‘running every day’ just to survive.
Mr Adam said:
‘I am a high risk of losing my life if I go back. I have no connexion with anyone in Sudan. My dad, step mum and brothers are all here. My mum passed away from cancer earlier this year. Another brother lost his life in the conflict. It is 100 per cent guaranteed that I would lose my life. It is not fair on my kids to lose their father. I have one chance to turn my life around. My daughter [LA] watches the news and knows what is going on in Sudan. It is affecting her mental health at the moment.
Their mother would raise the kids on her own – it would be very hard for her. Everyday life in Darfur is very hard. DA needs a lot of medical health and my ex-partner [EP] relies on me for help. DA goes to a special school for the deaf and EP asks for me to help her financially. I spoke to NA yesterday. He was asking who would help him with his homework. I have no answer for him. He is just aged seven.
I regret that I put myself in this position. I am ready to change for my kids. I am not the same anymore. That was three years ago. I am focussing on my religion. All I can say is that I am sorry for what I have done; I have to cop it on the chin.’
ORAL EVIDENCE
Mr Cunynghame asked Mr Adam about his personal circumstances form (GD, p 77) in which he had written that he had six uncles and aunts in Sudan. Mr Adam responded, “That was my mum and brother. Mum’s brother and mum’s sister and dad’s father and mum’s mother – all died.”
He agreed he completed the form on 27 March 2023 (GD, p 63) and said he did not know until he spoke to his father and found out no one is alive. Mr Cunynghame asked Mr Adam when his mother died. He responded, “I don’t know for sure. I got a call in April from the family telling me my mother had passed away.” He said he was not advised of the date she died. In respect of the brother in Sudan, Mr Adam said he died in Khartoum on 27 September 2023. When asked how he knew that date, the Applicant said, “That’s what I got told by my ex-partner. My father spoke to her. My father told EP about my mother, too. She called the prison, and I called back.”
Mr Adam said that his father had received the information from someone in Sudan, but he did not know who that person was. He said that his mother and brother lived in Darfur but when his mother became sick, they went to Khartoum so she could be treated, which is where she died.
Mr Adam said he used to speak regularly to his mother and his brother in Sudan before he went to prison.
Mr Cunynghame asked why the Applicant did not want to return to Sudan. He responded, “Yes, because my life is in danger. I don’t want to lose my life and want to be there for my kids.” When pressed on who would threaten him, Mr Adam said, “The Janjaweed rebels.”
The Respondent asked if there was anything about him in particular that would mean the Janjaweed people would want to kill him. Mr Adam replied, “Not just me – it is because I am from Darfur – anyone from Darfur they would want to kill, especially in Sudan.”
Mr Cunynghame asked the Applicant if there was anything else about him that might make him think he would be personally harmed. Mr Adam responded, “If they know I came back from Australia, they will harm me. They are mad. That’s how they roll. That’s what’s going on right now in Sudan. They are fighting about things that don’t make sense.”
Mr Cunynghame asked the Applicant whether, given the harm that he fears, would he do everything possible to prevent his removal from Sudan. Mr Adam responded, “I would do anything. Any orders put against me. Anything within the law – curfew or whatever, I would do that.”
Mr Cunynghame asked Mr Adam whether he would apply for a protection visa. He replied, “Yes, definitely I will do that.”
Mr Adam said he remembered seeing Dr Cunningham for a psychological assessment prior to a Court appearance. Mr Cunynghame noted that Dr Cunningham recorded the Applicant can speak English, Arabic and the language of his place of birth. Mr Adam confirmed this is the case, and said his local language is Fur. He agreed that Arabic is also spoken in Darfur.
In respect of his relationship with EP, Mr Adam said he first met her when he was at high school in 2012. He said they were in a relationship until 2016. He said his two daughters, LA, who was born in January 2013, and DA who was born in March 2015, were with EP.
Mr Adam said he then commenced another intimate relationship with JP, and fathered his son, NA, with her. This caused the end of his relationship with EP.
Mr Cunynghame asked about a family violence order issued to protect JP in September 2016. Mr Adam said that there was another man and “I had a history with him. They had to put a family violence notice as I was a bit violent around the kid.”
Mr Cunynghame asked Mr Adam whether it was correct that he subsequently breached the family violence order. He responded, “Yes. I was at work when JP called me. This guy was back at the house. I went back – that’s how I breached.
Mr Adam said that the relationship with JP lasted “not long at all. Maybe until 2018, or even before that.” He said that the relationship with JP ended because she was seeing another man, the same man he had issues with.
Mr Cunynghame asked whether the Applicant had maintained contact with JP. He said he speaks to her all the time because of NA, and that she visited him while in prison in Castlemaine.
Mr Cunynghame asked the Applicant about a relationship with a third woman, TP. Mr Adam said his relationship with TP started in mid-2019 and ended around September 2020. Mr Cunynghame asked, based on material in the tender bundle, whether Mr Adam would accept that he had a volatile relationship with TP. He responded, “I accept that a family violence order was in place regarding an argument at an Ibis hotel. I had an argument with her. We were affected by drugs at that time, as well.”
Mr Adam accepted that he has had family violence orders made against him on several occasions. When asked why he had breached them, he said that he “wasn’t thinking right and was affected by drugs.”
Mr Adam was taken to a 4 December 2020 statement made to the police by TP (TB, p 6) where she wrote:
Ashraf and I separated in November, 2020 but it has been on and off. In July police took out a safety intervention order where Ashraf is not allowed to contact me or be around me. We have continued to speak and see each other because if I don’t he threatens me. I haven’t reported it to police because I’m not that type of person but because he is starting to scare me I am reporting him breaching.
Mr Cunynghame asked the Applicant whether he accepts what TP wrote. He said that he did. The Respondent asked Mr Adam whether he understood that she was fearful of him because of threats. He responded, “I’m aware of it now. I wasn’t aware because I was using drugs.”
The Respondent took the Applicant to a police statement of alleged facts (TB, p 10) relating to an altercation between Mr Adam and TP at an Ibis Hotel in a Melbourne suburb. The statement alleged that the Applicant had ‘yelled, spat and pushed the victim with both of his hands’ and that hotel staff had contacted police because they were concerned for the victim’s welfare. Mr Adam said he accepted the contents of the statement of alleged facts but that he had changed and was not that person anymore because he was not going back to drugs.
Mr Cunynghame noted that Dr Cunningham’s view was that the main cause of Mr Adam’s offending was drug abuse, which the Applicant agreed was the case. He said he started taking drugs when he had relationship issues in 2016 and was using ‘ice’ every week. He said he tried different drugs but only continued with ‘ice.’ He agreed that he used methylamphetamine until 2021 when he was sent to gaol.
Mr Adam said that he did not know what he was doing with drugs and his use increased. He said, “It is something I regret. I changed – I’m not the person I was. I have done a drug and alcohol programmes which have really helped me. I’ve wasted three years of my life.”
Mr Cunynghame referred to the following paragraph in Dr Cunningham’s report (TB, p 75):
Mr Adam used illicit substances from the age of twenty or twenty-one. He used drugs in the context of relationship problems. He used methylamphetamine ‘on and off.’ After becoming homeless over the past two years he smoked half to one gram of methylamphetamine per day. He would also smoke cannabis.
Mr Adam said he generally agreed with what was written by Dr Cunningham in this paragraph but that the reference to one gram a day should be one gram a week. He said he would agree that drug use was the main cause of his homelessness and offending.
Mr Adam said that his ex-partner (EP) said he could go and live with her and their daughter if his visa was restored.
Mr Cunynghame asked the Applicant what steps he had taken in regard to his mental health. He responded, “I would go to every appointment if they asked me to do programmes.” When pressed on who he means when he says ‘they,’ Mr Adam clarified that if he is released on parole, he would adhere to any conditions that might be imposed.
Mr Cunynghame asked the Applicant what he would do if he were released without parole. He responded, “The first thing is to get a job, to get back to work. To get closer to my kids and focus on my religion.”
In response to direct questions from the Tribunal, which noted Dr Cunningham referring to the Applicant taking sleeping pills in prison, Mr Adam said he was no longer taking any sleep medication because he no longer has trouble sleeping. He said he felt ok with daily life. When asked how he manages his PTSD, Mr Adam said he “managed through it. Before I go to sleep, I think of the past and what was happening in Sudan and Darfur. I read the Koran. That’s how I help myself.”

In terms of courses he had completed, Mr Adam said he had undertaken a drug and alcohol course, the certificate for which he noted was at GD, p 94. He said he has also undertaken courses in kitchen operation, skills for working in vocational pathways, traffic management and a certificate in civil construction.
In respect of the drug and alcohol course, the Applicant said he had found it very helpful because it was in a group setting and hearing the stories of others had helped him a lot.
Asked if he had done any violence-related courses, Mr Adam said he had started one “this week” which was commencing on the first day of the hearing. He said it was connected with his application for parole.
In respect of employment, Mr Adam said he had a friend who is a mechanic who does mechanical work and also panel beating. He said that if released and with a visa he would live with EP and their daughters.
In response to direct questions from the Tribunal, the Applicant said he went from Sudan to Egypt when aged about 14 and was there for about eighteen months. He lived in Egypt with his stepmother as his father was already in Australia. Mr Adam said that his own mother remained in Sudan and was in Khartoum receiving treatment for cancer when she died.
Mr Adam said that he came to Australia with his stepmother to join his father. He said he has three brothers and one sister in Australia, who all live with his father and stepmother in Melbourne. He said he had another brother who remained in Sudan who was born in 1997, but who was killed in the conflict there.
The Applicant said he went from Sudan to Egypt aged about 14 and was there for around eighteen months. He lived with his stepmother as his father was already in Australia. When he arrived in Australia, he did some language training and then went to what is now called Keysborough College, entering year 9. He worked for a major supermarket chain and then as a mechanic.
The Tribunal asked Mr Adam why he lost his driver licence. He responded it was a drug driving conviction and he was speeding but not aware of it because of the effect of drugs. In terms of his physical health, the Applicant said it was good and he plays soccer three times a week at the prison. He said he had no ongoing health issues. Mr Adam said he had a good relationship with his father and stepmother.
CONSIDERATION
QUESTIONS BEFORE THE TRIBUNAL
Does the Applicant fail the character test?
As referred to above, both parties did not contest that Mr Adam does not pass the character test because he has acquired a ‘substantial criminal record’ by being sentenced to a term of imprisonment of 12 months or more, and that he was serving a full-time sentence at the date his visa was cancelled.
Section 501(7) of the Act provides as follows:
For the purposes of the character test, a person has a substantial criminal record if:
…
(c)The person has been sentenced to a term of imprisonment of 12 months or more; or…
On 12 December 2022, the Applicant was sentenced in the County Court of Victoria in relation to the following convictions, following a guilty plea: Attempted aggravated carjacking, Destroy property, Possessing an imitation firearm contrary to a firearm prohibition order. The sentence imposed by the Court was 42 months imprisonment. Mr Adam was serving his sentence and remains in prison at the time of these reasons.
On the basis of the sentence imposed by the County Court, the Tribunal finds that the Applicant has a substantial criminal record in terms of s 501(7)(c) of the Act. The Tribunal also finds that he was serving a sentence of full-time imprisonment on 24 March 2023, which was the date a delegate of the Respondent cancelled his visa. Therefore, Mr Adam’s visa was cancelled by operation of law. Because of this he cannot rely on s 501CA(4)(b)(i) of the Act, as a person who passes the character test.
The discretionary power – is there ‘another reason’ to revoke the mandatory cancellation of the visa?
Having made the finding that the Applicant does not pass the character test, and being satisfied that the Applicant was invited under s 501CA(3) of the Act to make representations about the revocation of the decision to cancel the visa, the power was enlivened for the Minister, or his delegate (or the Tribunal now standing in his shoes) to potentially revoke the cancellation decision if satisfied, under s 501CA(4)(b)(ii), that there is ‘another reason why the original decision should be revoked’. This is the question that the parties agreed is before the Tribunal.
In considering this question, the Tribunal must have regard to any direction made by the Minister under s 499 of the Act. On 23 January 2023, the Minister made a direction, which took effect on 3 March 2023. This is Direction No. 99, referred to earlier (‘the Direction’). Decision-makers, including this Tribunal, must, under s 499(2) of the Act, comply with the Direction.
THE OPERATIVE OFFENCE
The circumstances of the operative offence which caused the mandatory cancellation of the Applicant’s visa were in the sentencing remarks of His Honour Judge Dyer, which were before the Tribunal (GD, pp 33-44). In summary, the victim of the offending was a Mr Dias, whom Mr Adam had known for about 12 months. It would appear that Mr Adam was suspicious that Mr Dias was seeing TP, with whom the Applicant previously had a relationship. Mr Dias worked for an automotive repair business. In May 2021 Mr Dias was sitting in a motor car registered to his place of work in a Melbourne suburb. The Applicant ran towards the car, jumped on the bonnet and struck the windscreen with his knee, cracking it. He then ran across the top of the vehicle and away. Mr Dias drove to a police station to report the incident. While doing so, he encountered the Applicant who ran towards the car, holding what was described as a long and metallic object. Mr Adam struck the rear window of the car, causing it to smash. Early the following morning, Mr Adam sent text messages to Mr Dias’s employer admitting his actions.
The following month, June 2021, Mr Adam and an accomplice entered Mr Dias’s car while he was sitting in it outside his place of work, eating a meal. Mr Adam sat in the front passenger seat, with his accomplice sitting behind Mr Dias. A vehicle was parked behind, blocking the car from moving. Mr Adam demanded Mr Dias give him his Nissan car, which he had owned for 12 years. Mr Dias refused. A stand-off lasted for about an hour. The Applicant demanded Mr Dias’s mobile phone and searched it for messages from TP. Mr Adam then produced an imitation firearm and threatened to shoot Mr Dias in the knee. Mr Dias thought the weapon was real and later made a statement saying he was very scared. Mr Dias agreed to give the Applicant the keys to his Nissan car. He went into his workplace to retrieve the keys, but locked the door and called the police. Mr Adam was arrested shortly thereafter.
Of the offending, His Honour said (GD, pp 40-41)
The offence of attempted aggravating carjacking and possession of an imitation firearm whilst being prohibited do, in my view, fit the description of violent and confrontational offences as set out in the prosecution summary of sentencing submissions…
It was submitted that the attempted carjacking was aggravated by it taking place at night in the dark and occurred over the better part of an hour. [Counsel of the Director of Public Prosecutions name redacted] further submitted that it appeared to be planned, premeditated and persistent. Further, the use of an imitation firearm in the course of this offending is plainly an aggravating factor. I regard this as a serious example of this crime.
Further, the weapons offence occurred in circumstances where you had previously had a conviction and were serving a community correction order at that time. Perhaps your offending is again due to your failure to appreciate what is required of you in the community…I regard the objective gravity and your moral culpability of attempted aggravated carjacking and the firearms offence as high.
I had initially considered the imposition of a community corrections order for the summary offences and the property damage offence, but your past performance on three community corrections orders does not inspire confidence…
THE MINISTERIAL DIRECTION
As mentioned above, in forming a view on whether there is ‘another reason’ under s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of Mr Adam’s visa, the Tribunal must have regard to the relevant contents of the Direction made by the Respondent Minister.
The Direction sets out objectives, principles and how a decision-maker should exercise the discretion. It lists five primary considerations which must be considered by decision-makers. It also sets out four other considerations, which may be relevant to the non-citizen’s circumstances. However, these other considerations are not an exhaustive list. Any other consideration in the circumstances relevant to the purposes of the Act can be taken into account by the Tribunal.
Primary consideration: Protection of the Australian community from criminal or other serious conduct (paragraph 8.1)
The nature and seriousness of the conduct (para 8.1.1)
The Tribunal is obliged by paragraph 8.1.1(1)(a) of the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children, or acts of family violence.
Before the Tribunal (beginning GD, p 30) was an Australian Criminal Intelligence Commission nationally coordinated criminal history check (‘ACIC report’). It recorded offending by the Applicant with his first Court appearance in June 2016 for failure to answer bail, and driving whilst disqualified. He was convicted and given a nine-month Community Correction Order (CCO).
In March 2017 he was before the same Court and the offence of contravening the CCO was found proven. He was further convicted of the following offences: Possess Methylamphetamine (2 counts); Contravene Family Violence Safety Notice (2 counts); Drive whilst disqualified (3 counts); Use unregistered vehicle on a highway; Fail to answer bail (2 counts); Fail to produce licence on request of member of police force; and Fail to state name and address on request.
In August 2018 he was before the Magistrates’ Court and a charge that he had contravened a CCO was found proven. On the same date he was convicted of the following offences: Fail to comply with surrender vehicle notice; Unlicensed driving; Resist police officer (2 counts); State false address when requested; State false name when arrested; Possess methylamphetamine; Possess drug of dependence (not named)(2 counts); and Possess cartridge ammunition without licence or permit. The Court decided to adjourn sentence for one year.
In July 2019, the Applicant was convicted of the offence of Possess amphetamine and fined $300. In December 2020 he was before the Bail and Remand Court and convicted of contravening a Family Violence Interim Intervention Order, and fined $600.
In May 2021, Mr Adam was before the Magistrates’ Court and convicted of the following offences: Non prohibited person in possession of category E handgun without licence; Possess cartridge ammunition without licence or permit; Deal with property suspected the proceeds of crime; Fail oral fluid test within three hours of driving; Unlicensed driving; Use unregistered vehicle on a highway; Contravene Family Violence Intervention Order with the intention of causing harm or fear; Contravene Family Violence Interim Intervention Order; Prohibited person in possession of a firearm; Possess unregistered general category handgun; Retention of stolen goods; Commit indictable offence whilst on bail; Possess cannabis; Possess methylamphetamine; Possess drug of dependence (not named). He was ordered to undertake a CCO for eighteen months with 120 hours of community service.
In December 2022 before the County Court, Mr Adam was convicted of the offences which led to the cancellation of his visa, namely: Attempted aggravated carjacking (for which he was sentenced to 42 months’ imprisonment); Possess imitation firearm – prohibition order (12 months’ imprisonment with eight months to be served concurrently); Assault with weapon (fined $2,000); Intentionally destroy property (fined $1,500); Unlawful assault (fined $1,000). The total effective prison sentenced conferred was three years and ten months.
In the Tender Bundle (TB, pp 109-112) was material produced under summons from VicRoads. What was not included in the ACIC report were traffic offences recorded in March 2013, December 2013, September 2014, June 2015 and November 2015. These offences included three speeding offences, five offences of driving while disqualified or while authorisation to drive was suspended, stating false name and address, driving without displaying “P” plates.
Paragraph 8.1.1(1)(b) of the Direction lists other categories of crimes or conduct that are considered by the Australian Government or Australian community to be serious. They are causing a person to enter into a forced marriage; crimes committed against vulnerable members of the community such as the elderly and the disabled, or government representatives or officials due to the positions they hold or in the performance of their duties; and any conduct that forms the basis of a finding that a non-citizen does not pass the character test that is dependent on a decision-maker’s opinion; or crimes in, or related to, immigration detention. The Tribunal finds that the convictions for resisting arrest and giving false information to a police officer fall into this category of offending.
Paragraph 8.1.1(1)(c) requires that the Tribunal must have regard to the sentence imposed by the court for a crime or crimes. Mr Adam was treated leniently by the magistracy when he appeared on several occasions, including having convictions proven but no sentence recorded, and having matters adjourned for a year, a means of effectively applying a ‘good behaviour’ regime to an offender. However, in relation to the most recent offending the County Court imposed a relatively significant prison sentence of three years and ten months for the contact against Mr Dias.
The SFIC from the Respondent submitted that the Applicant’s offending should be viewed as very serious for the following reasons: the offending, in particular the attempted carjacking and assault with a weapon is violent offending. The breaches of orders designed to protect persons from family violence should be viewed as serious, and the imposition of a substantial prison sentence should be viewed as reflective of the serious nature of the offending because sending an offender to prison is the last resort in the sentencing hierarchy available to a Court. The Tribunal agrees with those submissions.
The Tribunal finds that Mr Adam’s offending is serious, involves family violence offending in the context of the Direction, and that there has been an escalation in the seriousness of his criminal conduct from relatively minor traffic offences to serious offending involving crimes against a person. It is immaterial that the gun the Applicant brandished to threaten Mr Dias was an imitation, because the victim himself thought it was real and made statements to the Court saying how scared he was at the time. The Tribunal notes that the Applicant and his accomplice had invaded the victim’s car, threatened him for over an hour and imposed on him to surrender the keys of the victim’s own motor vehicle.
Paragraph 8.1.1(1)(d) requires the Tribunal to consider the frequency of the offending or whether there is any trend of increasing seriousness. A survey of all the contents of the ACIC report and the material provided by VicRoads shows that Mr Adam’s offending has been frequent, and has escalated in seriousness. While some might be at the lower end of the scale, such as not displaying ‘P’ plates, there is a disturbing trend of the Applicant disobeying Court orders, driving when he knew he should not, and giving bogus information to law enforcement officers about his identity.
Paragraph 8.1.1(2)(e) requires the Tribunal to consider the cumulative effect of repeat offending. There has been a cumulative effect of relatively regular offending through a large number of traffic offences, property offences, drug offences (albeit no trafficking offences), offences against the person and offences relating to ignoring Court orders.
Paragraph 8.1.1(2)(f) requires the Tribunal to consider whether the Applicant has provided any false or misleading information to the Department, including by not disclosing prior criminal offending. There is no evidence before me of that.
Paragraph 8.1.1(2)(g) of the Direction requires the Tribunal to consider whether the non-citizen has re-offended after being warned by the Department or otherwise made aware in writing of the consequences of further offending on the person’s migration status. There is no evidence that the Department has warned the Applicant in the past.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
The Direction states that decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. The Direction states that some conduct and the harm that would be caused by it, if it were repeated, is so serious that any risk that it may be repeated is unacceptable.
Paragraph 8.1.2(2)(a) of the Direction requires the Tribunal to have regard to the nature of harm to individuals or the community should the non-citizen engage in further criminal or other serious conduct, and the likelihood of engaging in further criminal or other serious conduct. The nature of harm to the community if the Applicant continued to offend in the way he has in the past is injury to other persons, either because of Mr Adam’s propensity to drive when not authorised or by direct actions against a person, as is illustrated by the pattern of conduct against Mr Dias, which notably was two instances separated by several days, indicating clear premeditation.
There is also evidence that the Applicant has been violent or threatening towards his domestic partners in the past. Mr Adam candidly admitted to the contents of the police summary in relation to his conduct towards TP.
The Tribunal accepts Dr Cunningham’s professional assessment as an examining psychologist preparing a report for the Applicant’s solicitors that there is a ‘moderate risk’ of the Applicant reoffending in a violent manner (TB, p 76). The Tribunal notes that while Dr Cunningham does not have an endorsement in forensic psychology noted by the Australian Health Practitioner Regulation Agency, he does have a doctorate in that speciality, so his conclusions carry requisite weight.
The Direction requires the Tribunal to have regard to evidence of rehabilitation achieved by the time of the decision. While in prison, Mr Adam has undertaken a number of vocational courses (GD, pp 84-93), attaining certificates in cleaning, kitchen operations, civil construction (safety and traffic management), work and vocational pathways and horticulture. Separate from these, he has completed a ’24-hour (closed) drug and alcohol treatment program (level III)’ (GD, p 94).
The Tribunal was somewhat troubled that Mr Adam did not have a strategy mapped out in relation to measures to prevent him falling into using illicit drugs in the future. He said that he would comply with whatever conditions might be imposed upon him by the parole authorities, but when pressed about this, said his own solution was to get a job and return to the tenets of his Faith. While these latter aspirations are admirable, the Tribunal is concerned that he does not have an appreciation that he should take more proactive steps both in regard to his mental health (given his diagnosis of PTSD) and avoidance of illicit drug taking. Both of these factors, if not managed, would increase the risk of him returning to offending.

In terms of his conduct in prison, the Tender Bundle discloses that Mr Adam has been required to attend a number of Governor’s Disciplinary Hearings in gaol. In April 2023 (TB, p 79) a small amount of ‘bupe’ (i.e. buprenorphine) was found in the Applicant’s cell. He received loss of privileges after a hearing. There is also evidence of angry or frustrated conduct by Mr Adam, such as trying to kick a passing guard, abusing another guard (TB, p 87) and swallowing an item after being requested by a guard to surrender it (TB, p 81). The Tribunal accepts that tempers can become frayed in the close environs of a prison, but these incidents indicate some inability of Mr Adam to manage his own temper. The incident involving the buprenorphine points towards possible continuing illicit drug use, though there is insufficient material before the Tribunal on which to form any firm conclusions.
Because of the Applicant’s offending history, including violent offending, the trend of increasing seriousness and the unfortunate vein that runs through it of repeated failures to comply with Court orders such as CCOs, the Tribunal is satisfied that Dr Cunningham’s assessment of Mr Adam presenting at least a ‘moderate risk’ of future violent offending is accurate. This primary consideration weighs relatively heavily against the revocation of the mandatory cancellation of the visa.
Primary consideration: Family violence committed by the non-citizen (paragraph 8.2)
The Direction requires the Tribunal to consider whether a non-citizen has been convicted of any offence or had charges proven that involve family violence.
As recorded above, there are several instances of Mr Adam failing to comply with orders relating to family violence intervention and safety notices. In his oral evidence he admitted to breaching family violence orders on several occasions when he said he was affected by drugs and ‘wasn’t thinking right.’ When taken through a statement to police from TP (TB, p 6) where she said he had started to scare her, Mr Adam was asked whether he understood she was fearful of him. He responded that he was aware of that now, but was not at the time because he was using drugs. TP’s statement contains concerning content as follows:
He sent me about 20 messages throughout the day talking about going to my house to see my grandpa and that he wants to see me. I have provided pictures of these messages to police. I hardly responded and at 7.21PM he sent photos of him on my street. I was not at home at the time and he wrote “We are almost there” “Your last chance” “I will give you minutes.”
Around the same time I received messages from his friend [name redacted] saying they were coming to my house and that Ash really love [sic] me. I told him I was not at home and my family will call police and too [sic] keep walking.
I didn’t reply to any of the messages from Ashray [sic] and at 12.16AM on the 4^th of December he sent, “Your house might get run through tonight anytime pass 2.00AM” “And is not gonna be me doing it but they will not touch your grandpa” “I hate to see this to happen but it is what it is”
I stayed at home concerned for my Granpa [sic] who I live with and came to Dandenong Police Station after 2.00AM because I thought that would be safer.
I am scared of Ashraf, I don’t want anything to do with him.
This sort of intimidatory and threatening conduct is disgraceful, and for the Applicant to explain it away simply on the basis that he was affected at the time by drugs seems to the Tribunal to be somewhat scant in terms of evidence of his contrition.
The Tribunal finds that this primary consideration weighs against the revocation of the mandatory cancellation of the Applicant’s visa.
Primary consideration: the strength, nature and duration of ties to Australia (paragraph 8.3)
The Direction requires that decision-makers must consider any impact of a decision relating to a non-citizen’s visa on the person’s family members in Australia, where those family members are Australian citizens, Australian permanent residents or people who have the right to remain in Australia indefinitely. The most recent Direction has elevated this consideration to the status of a primary consideration.
Mr Adam came to Australia with his stepmother and other family members to join his father aged 15. He has been in this country for more than 17 years. His employment history, in spite of the offending history referred to above, has been creditable, including a period of full-time employment for a large supermarket chain. His father, stepmother and siblings live in Melbourne. He has three children who were born in Australia and on the evidence appears still to have a relationship with the mother of his daughters (EP) and the mother of his son (JP). The Respondent submitted that Mr Adam’s father is an Australian citizen.
In his personal circumstances form (GD, p 77) the Applicant recorded five uncles and aunts in Australia and six in Sudan. There was some confusion about this declaration in the oral evidence because Mr Adam said he had no living relatives left in Sudan. However, the Tribunal is satisfied that the Applicant has ties with a number of family members in Australia.
The Tribunal notes that Mr Adam has amassed a steady record of offending from 2015, a period of eight years, but accepts that he has developed ties through his employment, his intimate partners, and some involvement in sport. This primary consideration therefore weighs in favour of revoking the mandatory cancellation of the visa.
Primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 8.3)
The Direction requires decision-makers to make a determination as to whether non-revocation is or is not in the best interests of a child affected by the decision. To be considered under this part, a child must be aged under 18 years at the time of the decision. Where there are more than two relevant children, the best interests of each should be given individual consideration to the extent that their best interests may differ.
As mentioned above, Mr Adam has three children in Australia, all of whom are minors. The Tribunal accepts that he stays connected with the mothers of his two daughters and the mother of his son. The Tribunal also accepts the uncontested evidence from the Applicant that his younger daughter suffers from a disability, and that this merits her being treated separately from his other two children.
Applicant’s daughter LA and son NA
The Tribunal is satisfied that it is in the best interests of LA, who is aged 10, and NA, who is aged 7, for their father to stay in Australia. There is no evidence of the Applicant directing family violence against these children, although there is some indication NA may have witnessed the perpetration of family violence which, depending on the age of the child witness, can have deep and ongoing detrimental effects.
Ms EP, who is the mother of Mr Adam’s daughters, provided a letter (GD, p 97) in which she states that the Applicant has been in ‘constant contact’ with her and their daughters since they separated in 2017. She describes Mr Adam as providing ‘foundational support’ in terms of co-parenting their daughters.
In respect of NA, there is no statement from his mother, JP. However, the Tribunal accepts the Applicant’s evidence that his mother has taken NA to visit his father in prison, which indicates that a cordial relationship exists between the Applicant and JP. He said that he regularly speaks to NA on the telephone.
The Applicant asserted that he provides financial support for his children. There is no corroboration for this, but equally no evidence to the contrary. The Tribunal notes that Mr Adam would have been able to provide such support when he was employed, but not since he has been incarcerated.
Applicant’s daughter DA
Mr Adam’s younger daughter, DA, is aged 8. Her mother provided extensive medical history in her letter (GD, p 97) in that she was diagnosed with congenital cytomegalovirus in utero. This has led to a number of health consequences, the most significant being a diagnosis of DA being profoundly deaf in her left ear. EP records that the Applicant was present for all her paediatric appointments and the several surgeries DA had to undergo, and was supportive of the family. DA has learned AUSLAN and is enrolled at the Victorian School for the Deaf.
The Tribunal is satisfied that, owing to DA’s special needs, this places a greater burden on EP than that which is born by all single parents. It would also have a financial impact. The Tribunal is satisfied that the special features of DA’s disability mean that there is a particularly strong case in respect of her for the mandatory cancellation of the visa to be revoked.
The Tribunal notes the Respondent’s proper concession that it is in the best interests of each of Mr Adam’s children that the discretion be exercised to revoke the mandatory cancellation of his visa.
Overall, the Tribunal finds that this primary consideration weighs strongly in favour of revoking the mandatory cancellation of Mr Adam’s visa.
Primary consideration: Expectations of the Australian Community (paragraph 8.5)
Paragraphs 8.5(1) and (2) of the Direction state:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
…
The Direction highlights specific categories of identified offences: 8.5(2)(a) – acts of family violence; 8.5(2)(c) – commission of serious crimes against, inter alia, women and children; 8.5(2)(d) – commission of crimes against government representatives due to the positions they hold, or in the performance of their duties.
The Australian community’s expectation is taken to be a ‘norm.’ The word ‘norm’ means of a ‘standard’ or ‘pattern or type.’ A superseded version of the Direction contained generally similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (‘FYBR’). The Court held that it is not for a decision-maker to make a personal assessment of what the ‘expectations’ of the Australian community may be. The expectations articulated in the Direction are ‘deemed.’ In other words, they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may endeavour to derive by another evaluative process.
Direction No. 99 imports the statement that the expectations of the Australian community are to be considered as a ‘norm’ and acknowledges the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are ‘deemed’ to weigh against an applicant, the relative weight will be affected by circumstances in the individual case.
The Tribunal finds that the weight of the deemed expectations of the community would be against restoration of the visa. The Applicant has a string of offending and breaching Court orders and has been involved in violent offending against a person, in company. He has committed family violence offending. The disability of the Applicant’s daughter may well slightly mitigate the expectations of an informed community member, but that would also be weighed against Mr Adam’s overall general conduct in the Australian community.
The Tribunal finds that this consideration weighs against revoking the mandatory cancellation of the visa.
Other consideration: Legal consequences of the decision (paragraph 9.1)
The Direction reminds decision-makers to be mindful that unlawful non-citizens are liable for removal from Australia as soon as reasonably practicable (see s 198 of the Act), noting that s 197C(1) of the Act provides that, for the purposes of s 198, it is irrelevant that Australia has non-refoulement obligations in respect of an unlawful non-citizen.
In this case, the Tribunal accepts that the situation in the Republic of Sudan is especially parlous, and notes the extensive number of on-line articles that Mr Adam submitted, appended to his own submissions. However, the Tribunal also accepts the Respondent’s submissions that the submissions Mr Adam made about the potential harm he would face if he were repatriated were generic in nature and based on his own conclusion that he would be targeted solely because he was originally from Darfur.
However, the Tribunal must place particular weight on the Applicant’s own direct oral evidence that, if he is unsuccessful in persuading the Tribunal in this application that his visa should be restored, it is his declared intention to apply for a protection visa. There is no bar preventing such an application because Mr Adam has not held a protection visa in the past as no protection finding has been made in relation to him by a delegate of the Respondent.
While accepting that there may be grounds that the Applicant can make out that he is owed protection, in terms of Australia’s international convention obligations, that case has not yet been made. If he does indeed follow through with his intention to apply for a protection visa, he would have the opportunity then to make more comprehensive representations than the generic ones he has made in his written submissions and oral evidence in this matter. At present I am not satisfied he has made out a case that he would be exposed to particularised harm if repatriated.
The Tribunal notes that the Respondent made submissions about the relevance of the recent High Court decision in NZYQ v Minister for Immigration, Citizenship and MulticulturalAffairs [2023] HCA 37 (‘NZYQ’). The Respondent submitted that as no protection finding has been made in relation to the Applicant, s 197C(3) of the Act is not engaged and submitted further that the Minister does not accept that there is no real prospect that it will be practicable to remove the applicant in the reasonably foreseeable future.
The Tribunal accepts the submission that the decision in NZYQ is not applicable in Mr Adam’s circumstances because he has another application available to him under the Act. He is not in the category of persons, as the applicant in NZYQ was, where there was no real prospect of removal from Australia in the reasonably foreseeable future.
The Tribunal finds that this other consideration is not engaged and therefore weighs neutrally.
Other consideration: Extent of impediments if removed (paragraph 9.2)
The Tribunal must consider the extent of any impediments the Applicant may face if removed from Australia to Sudan in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country). The Tribunal must take into account the person’s age and health, any substantial language or cultural barriers and any social, medical, and economic support available to him in the country of reference.
In terms of his age and health, the Applicant said he is in good physical health, and regularly plays soccer at the prison. He said that he formerly was taking medication to help him sleep, but no longer. He agreed that he has been diagnosed with PTSD.
If Mr Adam were returned to Sudan he would, as a citizen of that country, have access to whatever social services are provided by the local government there. However, the Tribunal accepts that the political and civil situation in Sudan has sharply declined in the past year or so, and many government services are either overwhelmed or otherwise non-functional. In terms of paragraph 9.2(1)(c) of the Direction, the Tribunal accepts that there would be no, or little, medical or economic support to him in Sudan.
The current travel advice published by the Department of Foreign Affairs and Trade in relation to the Republic of Sudan is:
Travel advice and consular assistance
Australian government travel advice for Sudan is Do Not Travel due to armed conflict, civil unrest and the volatile security situation.
…
Humanitarian situation in Sudan
The humanitarian situation in Sudan is serious and deteriorating. The severe shortage of food, fuel, water and medical supplies, soaring costs, and the ongoing targeting of medical facilities are worsening an already challenging humanitarian situation. Looting of humanitarian assets and offices has compromised response efforts. Ongoing violence, displacement and lack of humanitarian access is expected to lead to significant refugee outflows….
Paragraph 9.2(1)(b) of the Direction requires the Tribunal to consider whether there are any substantial language or cultural barriers facing an individual. Mr Adam confirmed in his evidence that he speaks English, Arabic and Fur (see also TB, p 74) and that Arabic is the language generally spoken in Darfur. The Tribunal accepts that, while the Applicant may have some cultural familiarity with Sudan, he has been in Australia since his mid-teen years and may be classed as effectively ‘westernised.’ This may present some barrier to him if he was returned, together with the factual background of having no family members in Sudan and, because of the collapsed economic situation there, no obvious prospects of employment.
The Tribunal finds that this other consideration weighs in favour of revoking the mandatory cancellation of the visa, and relatively strongly so.
Other consideration: Impact on victims (paragraph 9.3)
The Tribunal interprets this part of the Direction as meaning some evidence of the impact on a victim of a non-citizen’s offending on a member of the Australian community in a case where the victim has knowledge of the migration implications for the non-citizen. While there is evidence, accepted by the Applicant, that in the case of one victim (TP) he had instilled fear in her, there is no evidence she knows of the current immigration status of Mr Adam.
The Tribunal finds that this other consideration weighs neutrally.
Other consideration: Impact on Australian business interests (para 9.4)
The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501CA would significantly compromise the delivery of a major project or important service in Australia. As held by Rangiah J in Arachchi v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311, at [68]) decision-makers must consider any impact on Australia’s business interests, not just business interests of a particular scale or importance.
As discussed above, the Applicant has some history of part- and full-time work in Australia. However, the Tribunal does not consider that his past employment rises to the level which would warrant a weight being attached in this consideration in the Direction.
This other consideration therefore weighs neutrally.
SUMMATION
The Direction requires at Part 2, paragraph 6, that the Tribunal must take into account considerations which are relevant to a decision. In this case, the Tribunal has identified five primary considerations which are relevant, and carry weight. The Tribunal has also identified two of what are called ‘other’ considerations in paragraph 9 of the Direction which are relevant, and two which are of neutral weight. In respect of the two other considerations, that relating to the legal consequences of the decision has been found to be relevant but, because Mr Adam has indicated he intends to apply for a protection visa, the Tribunal has in the end assigned neutral weight to this particular consideration. In relation to the other consideration relating to the extent of impediments if the Applicant were removed to Sudan, the Tribunal assigns strong weight in favour of revoking the cancellation of the visa.

In respect of the primary considerations, the Tribunal has found that the primary consideration relating to the protection of the Australian community weighs relatively heavily against revoking the mandatory cancellation of the visa. The primary consideration relating to whether the conduct of the Applicant constitutes family violence also weighs against him. The primary consideration relating to strength, nature and duration of ties to Australia weighs in favour of Mr Adam. The primary consideration relating to the best interests of the Applicant’s three children in Australia weighs strongly in favour of revoking the mandatory cancellation of the visa, in particular owing to a determination relating to one daughter of the Applicant who has special health needs. The primary consideration relating to the deemed expectations of the Australian community weighs against revoking the mandatory cancellation of the visa.
Weighing all these considerations individually and cumulatively, the Tribunal has decided that the discretionary power provided in s 501CA(4)(b)(ii) of the Act is not enlivened. Therefore, the Tribunal is not satisfied that there is ‘another reason’ to revoke the mandatory cancellation of the Applicant’s visa. This is principally because of the moderate risk of him again engaging in violent offending.
Having found that the discretion is not enlivened, the consequence is that the decision of the Minister’s delegate which Mr Adam has brought to the Tribunal for review will be affirmed.
DECISION
The Tribunal affirms the decision of a delegate of the Respondent dated 16 October 2023 not to revoke the mandatory cancellation of the Applicant’s visa.

I certify that the preceding 140 (one hundred and forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

......[sgn]..................................................................
Associate
Dated: 5 January 2024

Date of hearing: 7 December 2023

Date final submissions received: 1 December 2023

Applicant: Self-Represented

Counsel for the Respondent: Mr Adam Cunynghame

Solicitors for the Respondent: Sparke Helmore

[2024] AATA 7

5 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction

Date of hearing:	7 December 2023
Date final submissions received:	1 December 2023
Applicant:	Self-Represented
Counsel for the Respondent:	Mr Adam Cunynghame
Solicitors for the Respondent:	Sparke Helmore