Amodu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2022] AATA 4230

Amodu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4230 (12 December 2022)
Division:GENERAL DIVISION
File Number: 2022/7889
Re:Alhaji Amodu
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member Dr M Evans-Bonner
Date:12 December 2022
Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated 15 September 2022, is affirmed.
..................[Sgd]...............................................
Senior Member Dr M Evans-Bonner
Catchwords
MIGRATION – mandatory visa cancellation – decision of delegate of Minister not to revoke mandatory cancellation of the Applicant’s Visa – character test – substantial criminal record – violent offences including numerous offences involving assaulting police officers – Applicant is a 31-year-old citizen of Liberia who arrived in Australia from Sierra Leone when he was 19 years of age as the holder of a Global Special Humanitarian visa – Direction No 90 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – family violence – best interests of minor son, nieces and nephews – minimal information about minor children – expectations of the Australian community – Australia’s international non-refoulement obligations – links to the Australian community – strength, nature and duration of ties to Australia – best interests of minor daughter in Sierra Leone – Reviewable Decision affirmed
Legislation
Migration Act 1958 (Cth) ss 36(1C), 48A, 48B, 189, 195A, 197AB, 197C(3), 198, 499, 499(1), 499(2A), 500(6B), 500(6L), 501, 501(1), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G(1)
Cases
MXDK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1142
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Say v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 84
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
XFKR and Minister for Immigration and Border Protection [2017] AATA 2385
Secondary Materials
Department of Foreign Affairs and Trade, ‘Destinations – Liberia’, Smart Traveller (31 October 2022) < for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021) paras 4(1), 5.1, 5.1(3), 5.2, 6, 7, 7(2), 8, 8(1), 8(2), 8(3), 8(4), 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a)(i), 8.1.1(1)(a)(ii), 8.1.1(1)(b)(ii), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.2(2), 8.2(2)(a), 8.2(2)(b), 8.3, 8.3(4), 8.3(4)(a), 8.3(4)(b), 8.3(4)(c), 8.3(4)(d), 8.3(4)(e), 8.3(4)(f), 8.3(4)(g), 8.3(4)(h), 8.4, 8.4(1), 8.4(2), 8.4(2)(a), 8.4(2)(b), 8.4(2)(c), 8.4(2)(d), 8.4(2)(e), 8.4(2)(f), 8.4(3), 8.4(4), 9, 9(1), 9(1)(a), 9(1)(b), 9(1)(c), 9(1)(d), 9.1, 9.1(1), 9.1(3), 9.1(8), 9.2, 9.2(1), 9.3, 9.3(1), 9.4, 9.4.1, 9.4.1(1), 9.4.1(2), 9.4.2(3)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
12 December 2022
Background

The Applicant is a 31-year-old man who was born in Liberia. When he was seven years old, he left Liberia and travelled to Sierra Leone where he lived in a refugee camp.
The Applicant’s brother came to Australia as a refugee in 2006, and later helped the Applicant, his mother, other brother, and sister to come to Australia. The Applicant arrived in Australia in April 2010, when he was 19 years old as the holder of a Class XB Subclass 202 Global Special Humanitarian visa (Visa).
On 11 August 2021, the Applicant was convicted of two counts of “assault officer in execution of duty”, two counts of “assault occasioning actual bodily harm” and three counts of “common assault”. He was sentenced in the Bankstown Local Court to an aggregate term of imprisonment of 18 months for these offences. On 24 August 2021, an appeal against his sentence was allowed, with the Applicant’s parole period being reduced from 12 to nine months (G4/29-32).
Consequently, his Visa was mandatorily cancelled on 2 September 2021 (Cancellation Decision) pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) on the basis that he had a substantial criminal record and was serving a full-time custodial sentence of imprisonment (G14/95).
The letter advising the Applicant of the Cancellation Decision advised the Applicant that he could make representations to seek revocation of the Cancellation Decision. The Applicant sought revocation of the Cancellation decision on 13 September 2021 (G16/103). He submitted a personal circumstances form and evidence in support (G15; G17-G19).
However, on 15 September 2022, a delegate of the Minister decided not to exercise discretion under s 501CA(4) of the Migration Act to revoke the Cancellation Decision (G3/12). This is the Reviewable Decision currently before me.
The Applicant was notified of the Reviewable Decision by hand on 20 September 2022 (G3; G2/6).
On 27 September 2022, the Applicant lodged an application seeking a review of the Reviewable Decision in the General Division of this Tribunal (G2). Therefore, the application for review was lodged within the nine-day period prescribed by s 500(6B) of the Migration Act.
Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which an applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the 84-day period started running from 20 September 2022, meaning that I must hand down a decision on or before 13 December 2022.
Issues
The issues that I need to determine are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether I am satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
The hearing and the evidence
The hearing of this application was held by videoconference on 23 and 24 November 2022.
The Applicant was self-represented. The Respondent was represented by Mr M Sheedy of Sparke Helmore Lawyers.
The Applicant gave evidence on the first day of the hearing. My impression of the Applicant was that he lacked credibility. He minimised his offending, and often blamed his victims. I have provided specific examples and reasons for reaching these conclusions below in my discussion of the first primary consideration.
On the second day of the hearing, TS who is the mother of the Applicant’s nine-year-old son, L, gave evidence by telephone. So did MM, who is a neighbour of the Applicant’s mother. KS, the Applicant’s mother, gave evidence by telephone, with the assistance of a Liberian-English interpreter.
I admitted the following documents into evidence at the hearing:
(a)letter from MM dated 24 October 2022 (Exhibit A1);
(b)handwritten letter from the Applicant dated 15 November 2022 (Exhibit A2);
(c)DNAQ Parentage Test Report for L (Exhibit A3);
(d)undated witness statement of LS comprising 14 paragraphs (Exhibit A4);
(e)letter dated 14 November 2022 from LS (Exhibit A5);
(f)letter dated 18 November 2022 from KS (Exhibit A6);
(g)section 501 G-Documents, indexed/ labelled G1 to G22, comprising pages 1-152 (Exhibit R1); and
(h)Respondent's Tender Bundle, indexed/ labelled R1 to R8, comprising pages 1-518 (Exhibit R2).
The Respondent filed a Statement of Facts, Issues and Contentions (SFIC) dated 25 October 2022, prior to the hearing as well as “Submissions in Reply” dated 18 November 2022 following the production of documents under summons. The Applicant did not file a SFIC or any equivalent submissions.
Legislative Framework
Migration Act
Section 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6)(a) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7)(c) of the Migration Act as follows:
(7)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
(Original emphasis.)
Section 501CA of the Migration Act further provides, in part:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
(Original emphasis.)
Direction No 90
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 90) under s 499 of the Migration Act, which commenced operation on 15 April 2021. This Direction replaced the previous Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018).
Paragraph 5.1 of Direction No 90 sets out “[o]bjectives”, with paragraph 5.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No 90 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA”. The principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in paragraph 5.2 of Direction No 90, the decision-maker (in this case, the Tribunal – see definition of “decision-maker” in para 4(1) of Direction No 90) must consider the primary considerations listed in paragraph 8 of Direction No 90, and the other considerations listed in paragraph 9 where relevant (para 6 of Direction No 90).
Specifically, paragraph 8 of Direction No 90 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia;
(4)expectations of the Australian community.
Paragraph 9 of Direction No 90 lists other considerations to be considered as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests
Guidance as to how a decision-maker is to apply the considerations in

Direction No 90 can be found in paragraph 7, “[t]aking the relevant considerations into account”, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
Does the Applicant pass the character test?
The Minister may revoke the Cancellation Decision if the Minister is satisfied that the Applicant passes the character test (s 501CA(4)(b)(i) of the Migration Act).
I find that the Applicant does not pass the character test due to the operation of s 501(6)(a) of the Migration Act. That section provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act. A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
As I noted in the “Background” section above, on 11 August 2021, the Applicant was convicted of two counts of “assault officer in execution of duty”, two counts of “assault occasioning actual bodily harm” and three counts of “common assault”. He was sentenced in the Bankstown Local Court to an aggregate term of imprisonment of 18 months for these offences, with his 12-month parole period being reduced to nine months after an appeal was allowed on 24 August 2021.
The Applicant has therefore been sentenced to a term of imprisonment of 12 months or more, and as a result, does not pass the character test by operation of s 501(7)(c) of the Migration Act.
As the Applicant fails the character test, the statutory power to revoke will only be enlivened if there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
Is there another reason why the Cancellation Decision should be revoked?
Protection of the Australian community (paras 8(1) and 8.1 of Direction No 90)
Paragraph 8.1(1) of Direction No 90 provides that:
(1)When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

Paragraph 8.1(2) of Direction No 90 then provides:
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen's conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paras 8.1(2)(a) and 8.1.1(1) of Direction No 90)
Paragraph 8.1.1(1) of Direction No 90 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)   where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
By way of overview, the Applicant has a lengthy offending history over a period of approximately 10 years (2011 to 2021). He has appeared in court on nine occasions that have resulted in convictions.
His offending history commenced with traffic/ driving offences with his first such conviction being “drive motor vehicle while licence suspended – 1^st off” on 3 February 2014. His first criminal offence was “destroy or damage property”, with a conviction date of 28 November 2011.
He has been convicted of approximately 56 offences including:
(a)“assault officer in execution of duty” 17 times (in 2016, 2017, 2018, 2021), “assault police officer in execution of duty cause abh [actual bodily harm]” twice (in 2018), and “resist officer in execution of duty” three times (in 2016 and 2018);
(b)“assault occasioning actual bodily harm” four times (in 2018 and 2021), “common assault” five times (in 2018 and 2021) and one offence of “common assault (dv) [domestic violence]” (in 2018);
(c)“contravene prohibition/ restriction in AVO [apprehended violence order] (personal)” once in 2018;
(d)property offences including “destroy or damage property” seven times (in 2011, 2016, 2017, 2018 and 2019) and “enter inclosed [sic] land not prescribed premises without lawful excuse” (2018);
(e)other minor offences including “not give ticket for inspection on … train” (in 2016) and “not state name or address to an authorised officer” (in 2016); and
(f)thirteen traffic/ driving offences including, “drive motor vehicle while licence suspended”, “driver or rider state false name or home address”, “learner not accompanied by driver/ police officer/ tester”, “make U-turn without giving way to vehicle/ pedestrian”, “disobey no entry sign-motor vehicle” and “not stop before lights at red light” (in 2014 and 2017).
The offences on which the Cancellation Decision was based were two counts of “assault officer in execution of duty”, two counts of “assault occasioning actual bodily harm” and three counts of “common assault”. The Applicant was convicted of these offences in the Bankstown Local Court on 11 August 2021. The sentencing Magistrate described the facts of these offences as involving two separate episodes of offending. The first involved a neighbour, and her adult daughter and son-in-law who were visiting her. The sentencing Magistrate described that episode as follows (G8/64-65):
The facts which are before me disclose, in essence, two distinct episodes of offending, but within those, multiple offences. The offender [the Applicant] resides at [address omitted]. Also residing in the vicinity of [address omitted], is a 53 year old woman who has a 30 year old daughter. That 30 year old daughter is married to a 29 year old man.
On 20 June the daughter and her husband determined to visit the mother. In doing so, there seems to have been a request of the offender that his car, which seems to have overhung a driveway, be moved slightly to facilitate the movement of a car in the driveway. That was not met with a well-disposed response from the offender.
The agitator [the 30 year old woman] for the movement of the car continued to press the offender by wringing his doorbell to try and engage him in a conversation to have him move the car. He refused. He told the 30 year old female that he would not move his vehicle as there was no other place to park his car and he continued to say he did not care if his vehicle was going to be hit, he would not move it. He shut the front door. The 30-year-old woman continually pressed the front door to get his attention and shortly after, he opened the front door again and the argument continued.
During the argument he punched the 30 year old woman on the head and continued to throw punches at her head. She tried to protect herself by covering her face, but also trying to push him back away with her arms. She also slapped out at him to try and get him to stop. She suffered a small laceration inside her lip. That undoubtedly constitutes the actual bodily harm. During the altercation she was wearing sunglasses and a black hat, and they were knocked off her head.
Her husband, seeing what was happening to his wife, ran over and was at the front door trying, it seems, to separate them. While he was trying to stop the fight, he was struck in the face, causing minor scratches to his face and neck. That would constitute not only an assault, but it appears assault occasioning actual bodily harm, but I do not infer that that is relied upon for the harm. As he pulled his hand out to tell the offender to stop, the offender bit his right thumb, causing a deep cut. That must be the assault occasioning actual bodily harm.
At that stage, it is clear that the 53 old woman had also moved over in relation to her daughter and her son. She was struck two times in the chest area and punched also to the right jaw area. The daughter left the location and contacted the police. The offender went back inside his place. Police arrived. In due course, he was arrested. He was transported to the police station. Medical attention was summoned for the victims.
The second episode of offending was described by the Magistrate as follows (G8/65-66):
He [the Applicant] was uncooperative with police. The interview was suspended when they noticed blood on his jumper and thus, as they are entitled to do, were to seize the jumper for the purposes of DNA testing. He refused to remove his jumper, as he had no shirt on underneath. He said he would give his jumper to place if he was given a shirt, so Sergeant M gave him a forensic suit to wear, but he stated that he would not, in essence.
Sergeant M offered a blanket. The blanket was grabbed and he pushed it back towards Sergeant M. Sergeant M held his right hand out to prevent it from being pushed any further. The offender grabbed Sergeant M’s shirt, causing scratch marks to the neck, and ripping the police shirt. Sergeant M was then assisted by Constable E … and they grabbed the offender and detained him on the floor. Whilst he was on the floor, the offender grabbed Constable E’s shirt and caused scratches on the neck area and ripped the police shirt.
As is evident from the overview of the Applicant’s offending and the passage above, the Applicant has committed numerous offences involving violence including “common assault”, and “assault occasioning actual bodily harm”. Violent crimes are described in Direction No 90 as being “very serious” (para 8.1.1(1)(a)(i) of Direction No 90).
Offences against police officers in the performance of their duties are also serious. Paragraph 8.1.1(1)(b)(ii) of Direction no 90 provides in part that crimes committed against government representatives or officials due to the position they hold, or in the performance of their duties are “serious”.
Relevantly, when sentencing the Applicant on 11 August 2021, the sentencing Magistrate commented on the seriousness of the offending against the neighbour, and her adult daughter and son-in-law (G8/65-66) as follows:
I would assess the objective seriousness, bearing in mind the manner in which objective seriousness or assaults are assessed, in this respect. Any assault - bearing in mind it is a street assault, it occurs outside the premises although at the front door - is a serious matter. So far as the injuries are concerned, they are very much at the lower end of the scale, but the exercise of physical violence to a 30 year old woman and 53 old woman in the circumstances of this matter in my view is objectively serious. The husband has simply run over to try and assist. He suffered a deep laceration by biting to his thumb. That is not an insignificant injury.
I would assess the objective seriousness of each of the assaults is not insignificant. I would assess the objective seriousness of the assault occasioning actual bodily harm as not insignificant but more so in relation to the husband. Nevertheless, it is part of the same course of conduct.
In the 11 August 2021 sentencing remarks, the sentencing Magistrate also described the seriousness of the assaults against the police officers (G8/66):
There is a guideline judgement in relation to the assessment and sentencing for assaults on police officers. It exhorts Courts, including the Local Court, to give full weight to general deterrence and specific deterrence, recognising the significant role that police play in the community, and the fact that Courts need to ensure protection. I would assess the objective seriousness as not insignificant.
Crimes of a violent nature against women are also described in Direction No 90 as being “very serious” (para 8.1.1(1)(a)(ii) of Direction No 90). A “common assault” conviction on 19 April 2018 was for an assault against the Applicant’s mother (G10/81). When sentencing the Applicant in the Bankstown Local Court on 19 April 2018 for this and other offences, the acting Magistrate described the Applicants assault on his mother as “completely unforgivable” (G10/81).
In addition to his mother, the Applicant has also committed assaults against other women. According to a police narrative (R2/20), the Applicant slapped one of his mother’s neighbours, Ms K, as she opened her door, on her left cheek with his right hand, causing her to drop her phone and to fall over (R2/20). The Applicant said he did not recall this incident (transcript/52). This incident resulted in an assault conviction on 19 April 2018 (G10/81; R2/20). The sentencing remarks referred to the slap but not the other details. However, I accept the police version of events because, as I detail elsewhere in these reasons, I found the Applicant to be an evasive and unreliable witness.
The Applicant also slapped another woman, Ms M, with an open palm on the left side of her face. Again, he said he did not remember doing so (R2/486; transcript/56-57). The Applicant met Ms M when they were sharing accommodation. The Facts Sheet from New South Wales Police stated that Ms M and the Applicant had been in an intimate relationship for the last two months when this assault occurred, but that they did not reside together at this time. After sending several text messages to each other, which involved the Applicant asking Ms M if she was home and asking her to come to his house, Ms M drove home. As she was exiting her vehicle outside of her premises, she saw the Applicant standing at the rear of her vehicle. The Facts Sheet records (R2/85-486):
The victim told the accused that she was unable to talk to him and asked why he was at her house. The victim began to cross the road towards her premises where the accused had followed her. Using both hands of the accused, he grabbed the victim’s upper arms just beneath the shoulders. The accused proceeded to squeeze firmly which caused the victim a great deal of pain.
…
The victim yelled “get off me”. The victim made attempts for the accused to let go of her by wriggling her body which in turn, caused the victim to be facing the accused. The accused has used his right hand with an open palm and slapped the victim to the left side of her face. This caused an instant stinging pain to the victim’s face which lasted for a short period of time.
This resulted in a “common assault (dv)” conviction, even though the Applicant claims they were not in a relationship (transcript/55). Although both offences involved a slap (as opposed, for example to a punch), they are crimes of a violent nature against women and are very serious.
Some of the Applicant’s offences can be regarded as less serious. His traffic/ driving offences are of a less serious nature because they do not involve dangerous driving, speeding, or driving under the influence of drugs or alcohol. His property damage offences and trespass offence are of a less serious nature (although his trespass offence was part of the offending involving Ms M), as are offences involving a failure to produce his ticket for inspection on the train and refusing to provide his name and address. However, these offences are few and there are far more offences of a serious and very serious nature on the Applicant’s record.
Regarding the sentences of imprisonment that the Applicant received (para 8.1.1(1)(c) of Direction No 90), he has been sentenced to fines and disqualifications, as well as multiple terms of imprisonment:
(a)The Applicant received fines and disqualifications for nine traffic/ driving offences on 3 February 2014.
(b)He was sentenced for numerous offences on 21 September 2016, including seven offences for “assault officer in execution of duty” for which he received a two-year bond and was required to attend counselling or educational development.
(c)On 8 March 2017, he was sentenced to four months imprisonment for another offence of “assault officer in execution of duty”, together with convictions for four other traffic/ driving offences and a “destroy or damage property” offence, with no other penalties imposed.
(d)On 19 April 2018, he was sentenced to multiple terms of imprisonment for 17 offences (including assaults against police, two common assaults and two assaults occasioning bodily harm), with the aggregate term of imprisonment being eight months.
(e)On 16 October 2018, the Applicant was sentenced to a two-month term of imprisonment for the “common assault (dv)” offence against a woman he was previously living with, Ms M.
(f)On 20 August 2019, the Applicant was placed under an intensive supervision order for 15 months and was ordered to undertake community work and an anger management/ impulse control program.
(g)On 11 August 2021, he was sentenced to an aggregate term of 18 months imprisonment for the multiple offences, which were two counts of “assault officer in execution of duty”, two counts of “assault occasioning actual bodily harm” and three counts of “common assault”. On appeal, his sentence was not reduced but, as I mentioned above, his non-parole period was reduced from 12 to nine months.
The Applicant is only 31 years of age. At the time of his first sentence of imprisonment, he would have been approximately 26 years of age. Imposing sentences of imprisonment are usually a last resort in the sentencing hierarchy (PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22]), especially for a young person, and show that the courts regarded the offending as being serious enough to warrant a custodial sentence. The progression of the penalties and sentences also shows that the Applicant did not learn from his experiences and that he was not deterred from further offending by community dispositions and lesser sentences. The progression shows that the penalties that the Applicant received increased with each court appearance.
I now turn to the frequency of the Applicant’s offending, and whether there is any trend of increasing seriousness (para 8.1.1(1)(d) of Direction No 90). As I mentioned above, the Applicant has a lengthy criminal history of 56 offences committed over an approximate 10-year period. He has appeared in court nine times, and on most occasions was sentenced to numerous offences. His history starts with less serious driving offences and progresses to assaults against police officers, a domestic violence offence, an offence against his mother and other violent offences. I find that his offending is frequent, and that there is a trend of increasing seriousness.
I also consider that there would be a cumulative effect of repeated offending given the number of offences committed, numerous court attendances and custodial sentences of imprisonment. This would have had the effect of burdening the resources of police, the courts and corrective services which are ultimately funded by the taxpayer (para 8.1.1(1)(e) of Direction No 90).
There is no evidence that the Applicant has provided any false or misleading information to the Department (para 8.1.1(1)(f) of Direction No 90).
Paragraph 8.1.1(1)(g) of Direction No 90, requires me to consider whether the Applicant previously received any formal or other written warnings that further offending may affect his migration status. He has not received any warnings of this nature.
As I have explained above, the Applicant’s offences range from those of a less serious nature such through to very serious offences of a violent nature. This seriousness is also reflected in the sentencing comments for the offences on which the Cancellation Decision was based, and the sentences of imprisonment imposed. The Applicant’s offending is frequent, and there is an overall trend of increasing seriousness with his offending becoming more violent from 2016.
For these, and the other reasons that I have outlined above, I find that paragraph 8.1.1 of Direction No 90, the nature and seriousness of the conduct, weighs very strongly against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No 90)

Paragraph 8.1.2(1) of Direction No 90 provides:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of Direction No 90 provides, in part, in relation to assessing risk:
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the noncitizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of the harm (para 8.1.2(2)(a) of Direction No 90)
Broadly speaking, I am required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires a consideration of the nature of the harm to individuals or the Australian community should he engage in further criminal or serious conduct (para 8.1.2(2)(a) of Direction No 90).
If the Applicant was to commit further violent offences, including family violence, the harm that could result to members of the Australian community could include psychological harm, serious physical injury, impairment or even loss of life.
The harms of family violence were more particularly described by Deputy President Kendall (now His Honour Judge Kendall) in XFKR and Minister for Immigration and Border Protection [2017] AATA 2385 at [44]-[45]:
… the Tribunal notes the comments made by Senior Member J Sosso in Ahori and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 601 at [53] that:
53.Domestic violence is a very serious matter. In no way can violence in a domestic situation by one partner against another be trivialised or downplayed. The implications of such violence on the children, broader family and friends of the parties involved can be serious and long lasting.
The Tribunal would add that, in a society that adheres to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systemically intolerable. Its harms are threefold. First, it results in direct physical and psychological harm for those women against whom the violence is directed. Second, it psychologically harms the children of these women – children who, as in this instance, witness their mothers being abused, degraded and dehumanised ̶ and sends a message to these children (male and female) that behaviour of this sort is to be tolerated. Third, it normalises those socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated.
Offences involving property damage can cause financial harms in the form of increased costs to the community including increased insurance premiums.
The harms that can result to members of the public (including innocent road users and pedestrians) from driving/ traffic related offences are potentially very serious, and include physical injuries or loss of life, and possibly psychological harm.
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction No 90)
Next, I am required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence (para 8.1.2(2)(b)(i) and sub-para (ii) of Direction No 90).
The Applicant has a lengthy criminal history over a 10-year period and has continued to offend with numerous similar offences despite receiving prison sentences. On 11 August 2021 the sentencing Magistrate described his record as “a record that demonstrates a persistent breach of the law and the need for greater weight to be given to protection of the community” (G8/66). As I mentioned above, the Applicant has committed thirteen traffic/ driving offences. Although those convictions were in 2014 and 2017, the number of these convictions suggests a disregard for road rules and that there remains a risk of future similar offending. The Applicant’s history of offending suggests there is some likelihood of future reoffending.
The Applicant has stated that he is motivated never to reoffend because he fears that if he is removed from Australia that he will “be subjected to persecution or other forms of harm” if returned to Liberia (G19/124, para [16]). The prospect of being returned to Liberia and having his Visa cancelled again may provide motivation for the Applicant not to reoffend.
The Applicant also stated that (G19/125, para [19]):
I know that my offending has had an impact on the lives of many people. I am ashamed of my actions, regret the things I have done and am truly sorry. I take full responsibility for the things that I have done and am committed to never reoffending again.
However, the Applicant has repeatedly said that he is sorry for his offending. For example, on 19 April 2018 before the Applicant was sentenced for two counts of “assault police in execution of duty”, “resist police in execution of duty” and two counts of “common assault” (which included the assault against his mother), he said to the Magistrate (G10/79-80):
I want to say, I’m very sorry. Very deeply sorry in my heart for everything happen on that night. I’m very, very sorry. And I promise from this time forward, that kind of behaviour will never happen in my life again.
Despite this promise the Applicant committed further offences and was back in court again on 11 August 2021. At the hearing of this application, the Applicant repeatedly said he was sorry and that the offending would never happen again. For example (transcript/38):
… but I’m very sorry everything, that’s I can’t say much – I’m very sorry for everything happened from that time to now. I’m very happy. I mean, I’m very sorry. Sorry. I’m very sorry. This will never repeat again.
Another example from the hearing that was very much like his apology to the Magistrate on 19 April 2018 (transcript/39) was:
I’m very sorry for everything I have done from the past. I’m deeply sorry from the bottom of my heart. It will never happen again.
Given the Applicant’s previous apology to the Magistrate, after which he reoffended with similar offences, I do not think he is truly sorry or remorseful. In this regard, I disagree with the sentencing Magistrate who, on 11 August 2021, stated that “I accept that he is remorseful for what he has done” (G8/66). I am sure that the Applicant regrets the situation that he finds himself in, but I do not think that he is sincere when he says he is sorry for his offending and that it will not happen again.
My view about the Applicant’s lack of remorse is further supported by his evidence when he was asked about his offending at the hearing. He variously could not remember the offending, denied it, or attempted to blame the victims. Whilst it is plausible that he may not recall some specific offences due to the volume of offences he has committed, it is difficult to believe that the Applicant could not recall certain events. For example, I find it unlikely that, and do not accept the Applicant’s evidence that, he did not recall biting a police officer on the hand while he was being arrested (transcript/39-40) and that he did not recall slapping his mother’s female neighbour, Ms K (transcript/52) or a woman he previously shared accommodation with, Ms M (transcript/56).
The Applicant denied grabbing his mother and pushing her over when she tried to intervene to stop him fighting with her neighbours. He stated, “I would never do that to my mum, because my mum bring me in this world” (transcript/52). Although the facts upon which he was sentenced were not stated by the Magistrate, Her Honour specifically referred to “the assault on your mother” which she described as “unforgivable” (G10/81). Thus, the Applicant did assault his mother, which he has outright denied.
With respect to the offences for which he was sentenced on 11 August 2021 that resulted in his Visa being cancelled, he avoided answering a question put to him about whether he punched the female victim in the head (transcript/28-29). He also blamed the female victim, her husband who intervened to protect her, and the female victim’s mother for attacking him. He stated, “there was three people against me, like fighting with me, I was trying like to defend myself because this happened in my own house, in front of my own door, like to stop that” (transcript/29). And later, the Applicant said in his evidence (transcript/31):
Like I said before, there was three people coming to fight with me in my own house, the daughter, son in law, her mother, three people that attack me badly in my own house, I was trying to defend myself and all they say that I harm them, I do this to them, they take that to the police …
He denied that the husband was trying to defend his wife, but rather the Applicant’s evidence was that the husband came to join in the fight (transcript/30):
Well, the man he did not come to stop the fight because when he came in the fight he was jump inside both of them was hitting me everywhere of my body, he did not come and try to stop his wife or push me away to stop the fight, that was not intentional in the fight, he came in the fight so that he can fight with me too.
The Applicant was also evasive when asked if he had bitten the husband’s thumb. He first tried to say that the husband and female victim had pushed him against a brick wall and that the husband cut his thumb on the wall when he tried to punch the Applicant. He then said he did not remember biting the husband (transcript/30-31).
He further tried to minimise his conduct at the police station after he was arrested. He initially denied grabbing a police sergeant’s shirt and scratching him on the neck. His evidence was that he noticed the marks were already there, but that the police officer said to him they would charge him for that as well. After further questioning, the Applicant agreed that he scratched the officer’s neck and ripped his shirt (transcript/33).
After the incident where he slapped Ms M, the Applicant blamed her for sending him to jail because Ms M reported the incident to the police, and he was on parole at that time. He also gave evasive evidence about whether he ran away from the police after this incident. The Facts Sheet states that when police came to his house, the Applicant tried to avoid detection, ran out the back door, jumped the side fence and was found hiding in a shed at a nearby property (R2/487). The Applicant claimed that the police had telephoned him to ask him to come to the police station and that he had agreed to come. However, he said that when the police then came to his house he was “scared of them”. He said that he knew the police were looking for him but denied that he was hiding in a shed. Instead, he claimed to be sheltering from some rain (transcript/62):
MR SHEEDY: So you agree that you knew the police were looking for you and you decided to hide in that garage or shed, is that right?
APPLICANT:   Police was looking for me. I knew that. Police was looking for me.
MR SHEEDY: And you were hiding from them in the shed?
APPLICANT:   Well, I enter in the garage. It was not hide, it was a very open place. The door - the garage was not have a door, nothing to hide behind. It was open place. Because it was raining a little bit, that’s why I got in there and stand because rain was dropping, falling down. That’s why I enter inside that old place, that garage. But it’s not a place that was hide, because there was nothing to cover in.
I do not accept the Applicant’s evidence that he was sheltering from the rain instead of hiding from police. I find that the police Facts Sheet is more likely to be a reliable record of events.
There was another incident on 6 January 2019 involving the Applicant having a traffic accident at a petrol station where another car ran into his. The victim was the driver of the other car. The Facts Sheet prepared by the New South Wales Police records that the Applicant stopped his vehicle in front of the victim’s vehicle to prevent him driving further, exited his vehicle and approached the victim’s vehicle. The Applicant opened the door of the victim’s car and tried to remove his keys from the ignition which damaged them. The victim then exited his vehicle and the Applicant stood very close to him in a highly agitated state, waving his arms and speaking in a loud and aggressive voice, demanding the victim’s drivers’ licence and that the victim repair the damage to his vehicle. The victim got back into his car and moved it next to a petrol bowser. The Applicant again ran to the victim’s car door and tried to remove the keys from the ignition. The victim exited the vehicle. The Applicant then reached into the victim’s vehicle, with the victim standing behind him (G9/69-70). The Facts Sheet then records that:
The accused [the Applicant] then turned and struck the victim with a single closed fist pushing the victim away from the vehicle. The accused then stepped away from the victim’s vehicle.
The victim then went to the driver’s door and activated the fuel cap release mechanism and then walked to the rear of his vehicle. The accused followed the victim. The victim turned to face the accused. The accused approached the victim in an agitated and aggressive manner with his face up against the victim’s face. The victim, in fear of his safety, lashed out at the accused with a closed fist and then attempted to kick the accused.
The victim then walked further towards the rear of his vehicle. The accused followed the victim and then struck him four times to the left side of his head and face with an open palm. Whilst doing this the victim held his arms in front of him to protect himself.
The Facts Sheet also records that when police arrived, the Applicant had calmed down and showed police a small laceration on his upper lip. The Applicant claimed that the victim had refused to exchange drivers’ licence details with him after crashing his car into the Applicant’s car. However, when police spoke to the victim, they “saw that he had redness and swelling to his nose and left side of his face and saw that his left eyeball appeared to be filling with blood”. The victim gave a version of events consistent with those I have just described including that the Applicant was yelling and swearing at him, getting close to his face, and trying to remove the keys from the victim’s vehicle. Police investigated further, including interviewing the victim at the police station the following day and viewing the CCTV footage. The Fact Sheet states that “Police saw that the [CCTV] footage depicted the accused [the Applicant] acting in an aggressive, intimidating manner culminating in his assaulting the victim” (G9/71).
This incident resulted in the Applicant being convicted of “destroy or damage property” and “assault occasioning actual bodily harm” on 20 August 2019 (G4/32-33). The Applicant pled guilty to these offences (transcript/64-65). However, when asked about this incident at the hearing, the Applicant first denied that the police would have seen him overreacting on the CCTV and tried to suggest another African person was involved (transcript/63):
… it was very hard to understand the CCTV camera. Many people was under the camera, moving, taking something from the ground, going back to the car boot side. And the colour of the clothes I wear was white. Many people was in white on that day. Other African people as well. So the police find like a difficult like. There’s two, three African people, they all being close to the car. Who was this actual person? So the first charge me on that, then say that I overreact.
However, when asked further questions about this incident at the hearing the Applicant then alternated between saying that he did not remember details such as trying to take the victim’s keys, and that he did not remember punching the victim with a closed fist. The Applicant blamed the victim for being the aggressor, stating that the victim had pushed the Applicant “very hard” with the car door, that the victim was swearing at him, and that the victim said he had called his son to “come and get you [the Applicant]”. The Applicant’s evidence was that when the victim’s son arrived he threatened to kill the Applicant and wanted to fight the Applicant (transcript/62-64).
The Applicant’s evidence about this incident is contradictory and implausible. He first suggested that what police saw on the CCTV was a case of mistaken identity involving another African person. He then admitted to being involved in the incident, blaming the victim and the victim’s son for being the aggressors. This is a further example of the Applicant minimising his offending and blaming the victim. It suggests that the Applicant lacks remorse and insight into his offending. A lack of remorse and a failure to take responsibility for his offending tends to suggest some likelihood of reoffending.
At the hearing I asked the Applicant some questions about why he started committing offences soon after arriving in Australia. He said that he lived in Launceston, Tasmania when he first came to Australia, but then moved to Sydney. He said that his problems started when he moved in with a person in Villawood, Sydney and that he was friends with the wrong people. He said that he did not have anyone to guide him about how to live a better and a peaceful life in Australia. He agreed that he had difficulty controlling his anger due to his childhood trauma which he had not had any medication or treatment for. He said that when he was a child rebel forces invaded his village and he saw his father killed. He said that he had not seen a doctor or a psychologist who had diagnosed him with any mental health conditions.
He has done minimal rehabilitation. As noted by the sentencing Magistrate on 11 August 2021, the Applicant has “attempted rehabilitation in the past” (G8/66). This appears to be a reference to the Applicant being ordered by the Court on 21 September 2016 to attend “counselling, educational development, drug or alcohol rehab” (G4/35) and the intensive correction order with treatment programs on 20 August 2019 which included anger management/ impulse control. He recalled going to one court ordered appointment with a psychologist. He said he tried to see a psychologist in jail but was only able to see a psychologist once. These minimal psychology sessions were evidently not enough given that he has continued to reoffend with similar serious offences. The Applicant said that he intended to get ongoing treatment for his mental health if he is released into the community (transcript/80-82). In his personal circumstances form the Applicant stated that he had “been referred to the African Prison Support Form. For support around the trauma & how to cope with things that happen” (G17/117). However, this has not yet resulted in any treatment for trauma. In summary, as the Applicant himself acknowledged, he has not had the opportunity of treatment for any mental health and trauma issues. These unmet treatment issues suggest that there remains a risk of the applicant reoffending. Also, I am not confident about how sincere he is to undertake treatment in the community and no plans appear to have been made for any treatment in the community.

When sentencing the Applicant on 11 August 2021, the sentencing Magistrate disagreed with a presentence report that stated he was a low risk of reoffending (G8/66):
I do not accept, based on his record and the attempts at rehabilitation, that he poses a reasonable prospect of rehabilitation, nor do I accept that he is a person who is unlikely to reoffend. I wholeheartedly disagree with the assessment of him as being a person with a low risk of further offending, and I would have thought, with the greatest of respect to the author, that any view of his record would seem to indicate that at the drop of a hat he is likely to assault somebody.
At the hearing the Applicant said that he had started an anger management course in October this year but was not able to complete it (transcript/69). He said that he did, however, complete an online domestic violence course in immigration detention in November 2022 (A2, transcript/67-68). Whilst the Applicant was able to describe some of the content of these courses at the hearing, I am not satisfied that he has undertaken intensive enough treatment for his anger management and impulse control issues. Based on his history of similar violent offences, his lack of remorse and insight, and his unmet treatment needs in anger management and consequential thinking, I entirely agree with the comments of the sentencing Magistrate that “at the drop of a hat he is likely to assault somebody”. I do not think that the minimal treatment the Applicant has done in the form of a partly completed anger management course and an online domestic violence course are sufficient to have reduced the likelihood that there is a high risk of the Applicant reoffending.
When I asked the Applicant if he had a plan about what he would do if he was able to stay in the community, he stated (transcript/84):
Look for proper job, stable job, commit myself to work every day. Keep myself busy, hang out with a good friend and avoid problem around me so I can build a relationship with my life again.
However, the Applicant has minimal skills or work experience. In a handwritten letter that accompanied his revocation request (G15/102), the Applicant said that in 2013 he went to TAFE and completed a “Certificate III in Disability”. There is no evidence of this qualification, and it does not appear that the Applicant has ever worked in the disability sector. In the Applicant’s personal circumstances form he stated that he worked as a kitchenhand for two years in 2014 and 2015 and undertaking deliveries in 2021. He appears to have been in receipt of Centrelink benefits in between with a pre-sentence report dated 15 September 2016 stating that he was “currently unemployed and in receipt of a government benefit” after resigning his job as a kitchenhand (R2/45). In his statement dated 1 July 2022 he also claimed to have worked “in construction” (G19/124, para [12]). He stated at the hearing that he had undertaken studies in hospitality and mechanics in jail (transcript/69). In her statement dated 14 November 2022, TS stated that she had discussed with her family that her brother maybe able to employ the Applicant in his “company of trade”. However, this employment seems to me to be an unconfirmed possibility. Given his minimal work experience, skills and his criminal record, the Applicant may have difficulty finding a job and productively using his time.
Although the Applicant plans to avoid negative peers, they do not appear to be the problem. The Applicant’s offending appears to me to be due to his anger management issues and his lack of impulse control.
I am also concerned that, should the Applicant be released into the Australian community, he would be going back into the same environment in which he committed several of his offences. His mother, KS, is willing to offer him accommodation. However, the Applicant has committed offences against her neighbours in the past, as well as assaulting her. Indeed, the offences upon which the Cancellation Decision was made involved an altercation with her neighbours.
Although the Applicant’s mother is willing to offer the Applicant some support, that support was not protective in the past. She has some mobility issues due to having problems with her knees and the Applicant will assist her, for example with shopping, if he can stay in Australia. However, the Applicant assisted his mother in the past, and her reliance on him did not motivate him not to offend. She is not aware of the Applicant’s offending history and referred to only one incident in her written statement (A6). MM, the Applicant’s mother’s neighbour, also gave evidence that KS told him that the Applicant was “defending himself when he was physically assaulted by his attacker” (A1). As such, I think that any protective influence she may be is likely to be limited because she has little appreciation or knowledge of his offending history. However, the Applicant stated that he has a very close relationship with his mother and that separation from her and from other family members in Australia “would be devastating for me and for them” (G19/124). I accept that the prospect of permanent separation from his family members in Australia may provide the Applicant with some motivation to address his anger management issues and not to reoffend.
As I discuss below in the section on best interests of minor children, the Applicant discovered that he is the father of a nine-year-old son, L, approximately one month before the hearing. The child’s mother, TS, said in a written statement that (A4/para [6]) that:
I do not think there is a risk of reoffending as [the Applicant] has now found out that he has a son and we are willing to now be a family and try to raise our child together. With my support and his family support I believe [the Applicant] will not jeopardise he’s [sic] freedom and can find other healthy ways to regulate his emotion.
TS was open to the possibility that she and the Applicant may reconcile and raise L together. However, she was not aware that the Applicant claims to have a girlfriend (transcript/99). Additionally, TS was not aware of the extent of the Applicant’s offending. She was aware of an assault conviction arising from an altercation with a neighbour over a car space, and some traffic offences (transcript/99). She expressed concern and doubt at the possibility the Applicant had “told me the right thing”, which I infer to be a reference to his offending. Whilst being a father may provide the Applicant with some motivation not to reoffend, it is unclear about what his relationship with TS will be in the future, given she did not know he claimed to have a girlfriend and expressed doubts about whether he had misled her about his offending. Additionally, any relationship she has with the Applicant is likely to be less protective if she continues to have very little idea about his offending behaviour.
As I have mentioned, at the hearing the Applicant claimed to have a girlfriend. His mother stated in her written statement dated 18 November 2022 to the Applicant having a girlfriend and that “He loves her a lot” and that he may face emotional detriment and detriment to his mental health if he is separated from her (A6). However, there are no statements from the Applicant’s girlfriend in any of the materials before me. She did not give evidence in these proceedings, and I do not have any information about her. I am therefore uncertain as to whether the Applicant does have a girlfriend, and if so, whether his desire not to be separated from her may motivate him not to reoffend, or whether she would be a pro-social influence on him.
In summary, the Applicant has unmet treatment needs, including in the area of anger management and impulse control. He has a track record of reacting aggressively and violently against anyone he has a disagreement with. This includes a wide range of people, both men and women (including his mother), and police officers in the performance of their duties. His main area of risk is committing further violent offences, which (even though there is only one assault conviction against his mother), could include family violence. His disregard for Australian laws and lawful authority, and his apparent lack of consequential thinking skills also suggests to me that there is a possibility of further driving/ traffic related offending, despite his last such conviction being in 2017. For these, and the other reasons I have outlined above, I find that the risk of the Applicant reoffending is likely to be high.
I therefore find that paragraph 8.1.2 of Direction No 90, being the risk to the Australian community should the Applicant commit further offences, weighs very strongly against the revocation of the Cancellation Decision.
Summary on para 8.1 of Direction No 90
I have found that paragraphs 8.1.1 and 8.1.2 both weighed very strongly against revocation of the Cancellation Decision. Therefore, overall, I find that primary consideration 8.1, being the protection of the Australian community, weighs very strongly against the revocation of the Cancellation Decision.
Family violence committed by the non-citizen (paras 8(2) and 8.2 of Direction No 90)
Paragraph 8.2 of Direction No 90 requires decision-makers to have regard to family violence committed by the non-citizen:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.       the extent to which the person accepts responsibility for their family violence related conduct;
ii.      the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.     efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the noncitizen's migration status, should the non-citizen engage in further acts of family violence.
Family violence is defined in the interpretation section of Direction No 90 at paragraph 4(1), which provides, in part:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
a)an assault; or
b)a sexual assault or other sexually abusive behaviour; or
c)stalking; or
d)repeated derogatory taunts; or
e)intentionally damaging or destroying property; or
f)intentionally causing death or injury to an animal; or
g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
j)unlawfully depriving the family member, or any member of the family member's family, or his or her liberty.
(Original emphasis.)
Paragraph 8.2(2) of Direction No 90, stated above, sets out the circumstances where this primary consideration will be relevant. Firstly, it is relevant where the Applicant has been convicted of an offence, has been found guilty, or has had charges proven that involve family violence (para 8.2(2)(a) of Direction No 90).
On 16 October 2018, the Applicant was convicted of “common assault (dv)”. I briefly described this offence above as an offence against Ms M which involved the Applicant slapping her. Although the Facts Sheet from New South Wales Police states that the Applicant and the victim were in an intimate relationship for the past two months, it states that they did not reside together (R2/485). The Applicant said at the hearing that he had shared accommodation with Ms M but denied being in a relationship with her and that she had told the police he was her boyfriend (transcript/55). Despite this being labelled a domestic violence offence, there is not enough evidence to conclude Ms M was a member of the Applicant’s family. The nature of their relationship is unclear, and they were not living together at the time of the offence. As such, I find that this offence is best considered under the first primary consideration as a serious offence against a woman.
However, according to paragraph 8.2(2)(b) of Direction No 90 this primary consideration will also be relevant where “there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence”. The Applicant’s conviction for “common assault” on 19 April 2018 was, as I noted above, described by the Magistrate as an “unforgivable” assault against the Applicant’s mother (G10/81). Although the sentencing remarks do not set out the facts, I accept the reliability of the police record that the Applicant grabbed his mother with both hands and pushed her, causing her to fall over (R2/20). The Applicant’s mother is a member of his family. The behaviour is clearly family violence because it is violent behaviour in the form of an assault.
This conduct appears to be a single event and so the offending cannot be said to be frequent, nor can it be regarded as having a cumulative effect (para 8.2(3)(a) and (b) of Direction No 90).
As I mentioned above, the Applicant recently completed an online domestic violence course in immigration detention (para 8.2(3)(c) of Direction No 90).
There is no evidence before me that the Applicant has committed further acts of family violence after being warned about the consequences of doing so (para 8.2(3)(d) of Direction No 90).
Considering the factors above, including that there is only one incident that meets the definition of family violence, that there is no cumulative effect, and balancing the lack of insight of the Applicant into this offending, I find that this primary consideration weighs slightly against revocation of the Cancellation Decision.
The best interests of minor children in Australia affected by the decision (paras 8(3) and 8.3 of Direction No 90)
Paragraph 8(3) of Direction No 90 states that in making a decision under s 501CA(4), “the best interests of minor children in Australia” is a primary consideration.
Direction No 90 states that decision-makers must determine whether the decision under review is, or is not, in the interests of a child affected by the decision. The first three paragraphs of 8.3 provide:
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) of Direction No 90 sets out the factors that the decision-maker must consider:
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)whether there are other persons who already fulfil a parental role in relation to the child;
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has a daughter, J, in Sierra Leone who is approximately 12 years old (G17/112; transcript/70). I will consider her interests as a separate other consideration below.
Nine-year-old son
The Applicant has a son, L, born in 2013. I will give an overview of the evidence concerning L, before turning to the specific considerations set out in the relevant sub-paragraphs of Direction No 90.
The Applicant and L’s mother, TS, were friends who met in 2004. The Applicant said that TS moved away in approximately 2012 and that he did not know she was pregnant.
In approximately mid-this year, a friend, who thought the child resembled the Applicant, put him in contact with TS again. TS asked the Applicant to undertake a paternity test. A paternity test dated 14 October 2022 confirmed the Applicant is the father of L (A3). TS had not previously told the Applicant she had a son (transcript/95).
The Applicant wrote in a letter dated 15 November 2022 that “I have a son 9 years old I want to stay and raise him”. He further stated that “life will [sic] really hard” for L if he grows up without a father (A2). The Applicant also stated that “I love my son and I would like to see him grow up in Australia” (A2).
Despite the Applicant not having met L, TS said in a statement dated 14 November 2022 that they have been able to start building a bond between the Applicant and L and that L “has learnt all about his African culture” (A5). At the hearing, the Applicant said he had not met L or spoken to L yet (transcript/74). There was conflicting evidence from TS who stated that the Applicant had spoken to L on the phone (transcript/96). With respect, the Applicant loving his son, building a bond and teaching his son about his culture appear to me to be an exaggeration if the Applicant has not met L, and if he has only had recent telephone contact.

The Applicant’s concerns about the economic situation in Liberia including a lack of government assistance and his concerns about unclean water are more relevant to the extent of impediments if removed (and will be considered under that consideration), rather than the existence of any international non-refoulement obligation.
With respect to the Applicant’s claims that he will be subject to persecution or other forms of harm if he is returned to Liberia, the Applicant has provided insufficient information making it difficult to properly consider any non-refoulement claims. That is, his claim of a risk of persecution or other forms of harm if returned to Liberia is not a representation that is clearly articulated and substantial or significant (Say v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 84 at [6] cited in MXDK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1142 at [17]).
In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [30] a majority of the High Court confirmed that “one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non-refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa”. Accordingly, it is open for the Applicant to apply for a protection visa where his protection claims can be more specifically articulated and properly considered and for me to defer to that process. Consequently, I find that this consideration is neutral.
Extent of impediments if removed (paras 9(1)(b) and 9.2 of Direction No 90)
Paragraph 9.2(1) of Direction No 90 provides:
(1)Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen’s age and health;
b)whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
The Applicant is 31 years of age. In his personal circumstances form he said he has “blood pressure” and “heart condition disease” and that he takes Aspirin and other medication (G17/119). At the hearing he confirmed that he has high blood pressure and that his heart is “no good”. He said this was discovered when he had a medical assessment in prison. He confirmed he takes medication morning and night (transcript/26-27). When asked if these conditions would prevent him from doing physical work, he said he could not do heavy lifting but could do work such as delivery work (transcript/27). In a statement dated 1 July 2022, the Applicant stated that if he stayed in Australia, he would work as a carpenter (G19/125). When asked, the Applicant thought that his heart condition would not stop him from working as a carpenter if he is taking his medication and following his doctor’s advice to exercise and drink more water (transcript/27).
Travel information for Liberia states that “medical facilities are poor in Monrovia [the capital of Liberia] and are extremely limited outside the capital” and that cash up front may be required before doctors and hospitals will offer treatment ( Thus, although the Applicant is likely to have access to the same social, medical, and other supports as other citizens of Liberia, those services are likely to be limited. It is uncertain whether he will have difficulty in obtaining his heart medication in Liberia if he is returned there.
As I mentioned above, the Applicant left Liberia when he was seven years of age and lived in a refugee camp in Sierra Leone. He came to Australia as a 19-year-old from Sierra Leone. The Applicant has been absent from Liberia for 24 years and last lived there as a young child. Indeed, in his statement dated 1 July 2022, the Applicant stated (G19/123, para [6]):
I do not have any memories of life in Liberia and do not have any connections, family or contacts there. My only knowledge of Liberia comes from what I have heard, most of which is about war and hard times.
There are significant social and emotional impediments that the Applicant would have to overcome if returned. If returned, he would be separated from his family in Australia. He does not have any family in Liberia who could provide him with any support or assistance if he were returned there. It is an unfamiliar country and there are likely to be significant language and cultural barriers (even though the official language is English) which may make it difficult for him to find employment. His medical conditions are likely to add to these impediments if he has difficulty undertaking work involving manual labour. He claims to have a Certificate III in Disability, work experience as a kitchenhand, as a delivery driver and in construction. However overall, his skills and work experience are limited and he is likely to have difficulty finding employment if returned to Liberia.
I find that there are likely to be substantial impediments, both in the short and long term, that the Applicant would face establishing himself in Liberia, and maintaining basic living standards. Given these impediments, I find that it is appropriate to weigh this consideration strongly in the favour of revocation of the Cancellation Decision.
Impact on victims (paras 9(1)(c) and 9.3 of Direction No 90)
Paragraph 9.3(1) of Direction No 90 provides that:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no information before me regarding the effect of a decision to revoke or not to revoke the Cancellation Decision on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations).
However, the Applicant’s mother was the victim of his “common assault” offence for which he was convicted on 19 April 2018.
The Applicant’s mother said in her statement dated 18 November 2022 that she “will be very emotionally and psychologically impacted if my son is deported from Australia” (A6). She is worried about the impact on her son and his health if he is deported, that he will have no family or friends, and that he will not be able to support himself if he is returned to Liberia.
Additionally, the Applicant’s mother wants him to live with her if he is released into the Australian community. She also stated that she is relying on the Applicant for emotional support and to assist her due to her mobility issues due to problems with her knees. She stated (A6):
… if my son is deported … I will be all alone without any family here and my life now as an old woman has been extremely hard and difficult every day since my son was detained because he was always caring about me and coming over to my place regularly to help with things which I now find extremely difficult and hard to do without him because of my severe chronic arthritis in my knees. It will mean so much to me for the immigration to reinstate my son’s visa so we can both be finally together again and so that I can also have his physical care and support like before as I am now struggling to look after myself on a daily basis.
The Applicant’s mother gave evidence at the hearing that she was lonely without him (transcript/108). When asked if her other children could assist her, she was somewhat evasive, and indicated that her other children could not help her because they are married and do not communicate with her (transcript/108-109). I have difficulty accepting the Applicant’s mother’s evidence that none of her other children communicate with her and that none of her other children, including a son in Sydney (where the Applicant’s mother resides), will help her. Additionally, I note the Applicant’s evidence that he has a big family and that they would spend special occasions such as Christmas Day, Boxing Day or Easter together (transcript/72). This suggests that the Applicant’s mother does have a relationship with her other children. My view was that the Applicant’s mother was attempting to embellish the Applicant’s involvement in her care so that his application would be viewed more favourably.
As I mentioned above, the Applicant recently completed an online family violence course. However, he displayed a lack of insight into that offending behaviour, as was indicated by his denial at the hearing that he assaulted his mother. Despite this denial, he was convicted of the assault against his mother, which as I have already mentioned, the Magistrate referred to as “unforgivable”. I therefore have some concerns for the wellbeing of the Applicant’s mother if he returns to live with her. This is because of his lack of insight and his unmet treatment needs in anger management and impulse control. I am concerned that there is a risk that he may assault her again. His mother’s wellbeing may be better protected if the Applicant does not remain in Australia, or at the very least if he does not live with her.
After balancing this competing evidence, my overall view is that the Applicant’s mother may suffer emotional and practical detriment if he is removed from Australia. Despite my reservations about the Applicant living with his mother, overall, I find that her interests weigh slightly in favour of the revocation of the Cancellation Decision.
Links to the Australian community (paras 9(1)(d) and 9.4 of Direction No 90)
Paragraph 9.4 of Direction No 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 to 9.4.2 below.
This requires consideration of the strength, nature and duration of an applicant’s ties to Australia and the impact of non-revocation of a cancellation decision on Australian business interests.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1(1) of Direction No 90 provides that:
(1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Further, paragraph 9.4.1(2) of Direction No 90 provides that:
(2)Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
As I mentioned above, the Applicant arrived in Australia as an adult when he was 19 years of age. He has therefore resided in Australia for approximately 12 years.
Less weight should be given to the Applicant’s time in Australia because he started offending shortly after arriving. He arrived in Australia on 21 April 2010 and his first conviction for “destroy or damage property” was on 28 November 2011.
The Applicant has made some positive contributions to the community whereby I can give some weight to the length of time he has spent in Australia. He has helped his mother who has mobility issues, for example by driving her and helping her with shopping (transcript/110). When he was in high school, he undertook door to door fundraising for UNHCR (United Nations High Commissioner for Refugees) collecting donations for a two-year period from 2011 (G17/118). He also attended Church and an African Community Group. He mentioned that the Church would assist people pay bills or with food, but it is unclear what the Applicant’s involvement was (G17/119); transcript/85). However, his positive contributions are somewhat diminished by the Applicant’s long history of offending and his having spent a substantial part of his adult years in prison and immigration detention, as I have already explained, he has made minimal contributions through employment.
The Applicant’s mother is an Australian citizen and I have already made findings concerning her interests above in the section regarding the impact on victims.
As I mentioned above, the Applicant and his mother claim that he has a girlfriend. This girlfriend did not provide a statement or give evidence and so it is unclear how her interests would be affected if the Applicant was removed to Liberia. Additionally, I did not find the Applicant to be a credible witness and so I am uncertain as to whether he has a girlfriend and if and how her interests would be affected if the Applicant is returned to Liberia.
Although the Applicant stated that it would be devastating for his family if he was removed to Liberia (G19/124, para [15]), there are no statements from the Applicant’s siblings, and so it is also unclear if and how their interests would be affected if the Applicant was removed to Liberia. There are no statements nor any evidence concerning any other friends or persons in the community (other than his mother’s neighbour, MM) in terms of the Applicant’s ties to the community, or who may be affected if the Applicant is returned to Liberia.
TS, who is the mother of the Applicant’s son L, may face some detriment if he is removed to Liberia. She has raised L alone for the last nine years, and does have some family support, as I described above in the section on the best interests of L. She may face some emotional or financial detriment if the Applicant is removed from Australia because she is worried about L growing up without a father and is hopeful that the Applicant will be involved in L’s life and that it will be beneficial for L. It is also unlikely she will receive any financial contributions from the Applicant to assist with L’s care if he is returned to Liberia.
Nevertheless, the Applicant does have strong ties to Australia because all his immediate family members reside in Australia, including his son, mother, siblings, nieces, and nephews. He has no family in Liberia. In his personal circumstances form, the Applicant stated that he had a very close relationship with his 18-year-old nephew who resides in New South Wales. The Applicant stated that he would see his nephew regularly at his mother’s home and at family events (G17/115). Again, there is no statement from the Applicant’s nephew. However, if the relationship is as close as the Applicant claims, his 18-year-old nephew may suffer some emotional detriment if the Applicant is removed from Australia.
On balance, I find that paragraph 9.4.1 of Direction No 90, being the strength, nature, and duration of the Applicant’s ties to Australia, weighs moderately in favour of the revocation of the Cancellation Decision.
Impact on Australian business interests
Paragraph 9.4.2(3) of Direction No 90 provides that:
(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
This consideration does not arise on the material before me and is therefore not relevant.
Best interests of the Applicant’s daughter in Sierra Leone
The Applicant has a daughter, J, who lives with her mother in Sierra Leone. The Applicant stated at the hearing that J is 12 years old and was born in 2009 or 2010 (transcript/70).
In his personal circumstances form, the Applicant said that he has three video calls with his daughter each week and regular phone calls. He stated that he sends money for food and clothing (G17/113). At the hearing, the Applicant’s evidence was that this contact had been less frequent and that it was more difficult to speak to J because J’s mother did not currently have a telephone. However, he said at the hearing that he last spoke to J two or three days ago.
In his personal circumstances form, the Applicant said that if he was returned to Liberia, he would not be able to maintain contact with J “due to financial reasons”. He further stated that “I wouldn’t be able to provide money or any support to her [J] in Sierra Leone” (G7/113).
It is difficult to assess J’s best interests because I have minimal information about her to corroborate the Applicant’s evidence. However, I have accepted above that the Applicant is likely to face economic impediments in terms of being able to support himself and to find employment if he is returned to Liberia. This may impact on his ability to communicate with J, and to provide her with any financial support. I therefore find that, overall, revocation of the Cancellation Decision is in J’s best interests, and that it should weigh slightly in favour of revocation of the Cancellation Decision.
legal consequences of the decision
A decision to affirm the Cancellation Decision will result in the Applicant becoming liable to be removed from Australia as soon as reasonably practicable (s 198 of the Migration Act). He will remain in detention until he is removed (s 189 of the Migration Act).
If I affirm the Reviewable Decision, the Applicant would be prevented from applying for any other class of visa without leaving the migration zone, except a Bridging R (Class WR) visa, which he could only apply for in response to an invitation (para 9.1(8) of Direction No 90).
However, if he applies for a protection visa, he will not be liable for removal until that application has been finally determined (s 197C(3) of the Migration Act). He would face detention for an uncertain duration pending the outcome of any protection visa application.
There is a possibility that the Applicant will receive a negative outcome on a protection visa application under s 36(1C) of the Migration Act on the basis that he is a danger to the Australian community, or under s 501(1) of the Migration Act on the basis that he does not pass the character test. If so, the Applicant would have further avenues of appeal to this Tribunal.
If I affirm the Reviewable Decision and the Applicant’s protection visa is refused, he would be prevented, by s 48A of the Migration Act from making another application for a protection visa whilst in the migration zone, unless the Minister determines under s 48B that s 48A does not apply.
If the Applicant’s protection visa is refused but he is found to be owed non-refoulement obligations, the Minister has the discretion to consider other options, including removal to a third country, or exercising personal discretion under s 195A of the Migration Act to grant another visa or to exercise personal discretion to make a residence determination under s 197AB of the Migration Act (see para 9.1(3) of Direction No 90).
the weighing exercise

The Applicant does not pass the character test under s 501 of the Migration Act.
I have therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 90.
For the reasons set out above, I made the following findings about the relevant primary considerations in Direction No 90. These were:
(a)The protection of the Australian community primary consideration weighed very strongly against the revocation of the Cancellation Decision.
(b)The family violence consideration weighed slightly against revocation of the Cancellation Decision.
(c)With respect to the best interests of minor children, the best interests of the Applicant’s nine-year-old son weighed moderately in favour of the revocation of the Cancellation Decision. The best interests of his nieces and nephews, weighed slightly in favour of the revocation of the Cancellation Decision.
(d)The expectations of the Australian community weighed very strongly against the revocation of the Cancellation Decision.
I made the following findings with respect to the other considerations that were relevant. These were:
(a)International non-refoulement obligations were given neutral weight.
(b)The extent of impediments if removed weighed strongly in favour of the revocation of the Cancellation Decision.
(c)The impact on victims, namely the Applicant’s mother, weighed slightly in favour of the revocation of the Cancellation Decision.
(d)The Applicant’s links to the Australian community weighed moderately in favour of the revocation of the Cancellation Decision.
(e)The best interests of the Applicant’s 12-year-old daughter in Sierra Leone weighed slightly in favour of the revocation of the Cancellation Decision.
Although primary considerations are generally to be given greater weight (para 7(2) of Direction No 90), they are not hierarchical and other considerations can outweigh primary considerations.
Nevertheless, I find that the primary considerations of the protection of the Australian community, and the expectations of the Australian community which both weighed very strongly against the revocation of the Cancellation Decision, outweigh the primary and other considerations that weighed in favour of the Applicant. The primary consideration of family violence which weighed slightly against the revocation of the Cancellation Decision further adds to this weight.
Although impediments if removed weighed strongly; links to the Australian community weighed moderately; best interests of the Applicant’s son weighed moderately; best interests of his minor nieces and nephews weighed slightly; impact on victims weighed slightly; and the best interests of his daughter in Sierra Leone weighed slightly in favour of revocation of the Cancellation Decision, they do not tip the balance of the weighing exercise in the Applicant’s favour. The considerable weight that I have given to the primary considerations that weigh very strongly against the Applicant (being the protection of the Australian community and the expectations of the Australian community) is such that the overall balancing exercise weighs substantially against the Cancellation Decision being revoked.
In other words, I am not satisfied that there is another reason to revoke the Cancellation Decision.
Decision
The Reviewable Decision, being the decision of a delegate of the Respondent dated 15 September 2022, is affirmed.

I certify that the preceding 211 (two hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

.............[Sgd]........................................................
Associate
Dated: 12 December 2022

Date of hearing: 23 and 24 November 2022

Representative for the Applicant: Self-represented

Representative for the Respondent:

Mr M Sheedy, Sparke Helmore Lawyers

Date of hearing:	23 and 24 November 2022
Representative for the Applicant:	Self-represented
Representative for the Respondent:	Mr M Sheedy, Sparke Helmore Lawyers