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

[2023] AATA 2718

Bah and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2718 (4 August 2023)

Division:GENERAL DIVISION

File Number:          2023/3609

Re:Abu BAH  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Rebecca Bellamy

Date of Decision and oral reasons:  4 August 2023

Date of Written Reasons  24 August 2023

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the decision made by the delegate of the Respondent dated 18 May 2023 is set aside and substituted with a decision that pursuant to section 501CA (4)(b)(ii) of the Migration Act 1958 (Cth) the mandatory cancellation of the Applicant’s visa is revoked.

....................................[SGD]....................................
Senior Member R Bellamy

CATCHWORDS

MIGRATION – Non-revocation of mandatory cancellation of a Class XB Subclass 202 Global Special Humanitarian visa where Applicant does not pass the character test – consideration of Ministerial Direction No. 99 – strong evidence of rehabilitation – risk of re-offending remote – substantial impediments to survival in receiving country – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth)

SECONDARY MATERIAL

Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member R Bellamy

24 August 2023

1. The hearing of this application took place on 2 and 4 August 2023. The Applicant gave evidence and the Tribunal received the written evidence that is listed in the attached exhibit list, marked “Annexure A”. The Applicant did not have legal representation and he cannot read English. He needed the assistance of an interpreter. However, he could understand very simple, spoken English reasonably well.

2. On the second day of the hearing, I set-aside the decision under review and I gave oral reasons for my decision. They were simple, brief reasons. The Applicant had not challenged the information in his criminal record (being findings of guilt for offences and penalties imposed), or in sentencing remarks that were provided to the Tribunal. He gave details and explanations about those matters that were not implausible, and there was not any contrary evidence before the Tribunal. As the evidence about the Applicant’s previous offending was known to both parties, I did not find it expedient to recount his offending history in detail when giving oral reasons. The Applicant did not challenge the submissions made by the Respondent about the applicable law and policy, or the evidence of the process that led to him making this application. Nor was there any dispute as to the rehabilitative courses the Applicant has done in prison and immigration detention, including drug courses, anger management and a parenting course. As both parties were aware of those uncontentious matters, I did not include them in my oral reasons.

3. These reasons are more detailed than the reasons given orally and the language has been tidied up a little. There are some corrections where I have identified that inadvertently misspoke and those are referenced in footnotes.  

4. The Applicant is a 32 year old citizen of Sierra Leone who came to Australia on a Class XB Subclass 202 Global Special Humanitarian visa (“visa”) in June 2010 when he was 18 years old.[1] His visa was recently cancelled on character grounds. In 2018, he was convicted of rape and attempted rape for which he was sentenced to imprisonment for four years and two years, respectively.[2] He was returned to prison after breaching the suspended parts of those sentences.  

   [1] Exhibit G1, G-Documents G11, page 291.

   [2] Exhibit G1, G-Documents G2, page 34.

5. Section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) relevantly provides that the Minister must cancel a visa that has been granted to a person if:

   ·the Minister 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)(c); and

   ·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.

6. Under s 501(6)(a) of the Act, a person will not pass the character test if they have “a substantial criminal record”. Section 501(7)(c) of the Act relevantly provides that a person has a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.

7. After the cancellation of the Applicant’s visa, written representations were made on his behalf, to the Respondent requesting revocation of the cancellation. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act which provides:

   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.

8. On 18 May 2023, the Respondent decided not to revoke the cancellation. The Applicant lodged an application in this Tribunal for review of that decision. The Tribunal has jurisdiction to review the decision pursuant to s 500(1)(ba) of the Act.

9. As the Applicant does not pass the character test, the sole issue for determination is whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa. In making that determination, the Tribunal is bound by s 499(2A) to comply with Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) applies.

10. For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several guiding principles. Those are:

    ·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.

    ·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.

    ·The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    ·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 consideration 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 8.55(2) (Expectation of the Australian community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australia community.

    BACKGROUND AND OFFENDING

11. The Applicant was born in Sierra Leone. His parents were killed when he was five years old and he then spent several years living as a refugee in Guinea with his brothers and their wives. Another brother was killed in the war in Sierra Leone. He mentioned his grief over becoming an orphan, and he described his life in Guinea as difficult. It is apparent that he suffered a great deal. However, he did not seek to use that suffering to excuse his offending, and rightly so. He did not have a lawyer, or anyone, helping him in this application. He was the only witness who gave evidence. I think he gave truthful evidence. In his efforts to get his visa back he provided some handwritten documents. He did not write these himself. He had some help. In the hearing it became apparent that the documents were not entirely accurate, and I found some of the writing hard to read. Where there is a difference between the handwritten documents and the evidence the Applicant gave in the hearing, I prefer his oral evidence.    

12. The Applicant committed his first offence in 2013 when he failed to appear in accordance with a bail undertaking.[3] He started smoking marijuana in 2014, and he was caught a couple of times that year with that drug or utensils associated with its use. He was also caught with methamphetamine but he claims he was holding it for someone else. In 2015 he failed to stop for police. He said he did not realise it was him they wanted to pull over. He again failed to appear while on bail. He said the breaches of bail were inadvertent as he did not receive the notices.

    [3] Exhibit G1, G-Documents G2, page 32.

13. The Applicant was twice convicted of public nuisance. He said he was at a nightclub, which was the only one in his area, and other people argued with him and then called the police. He was the only person of his colour there and he thinks that had something to do with it. He said he kept to himself and never caused trouble, but the same people argued with him on both occasions.

14. In 2017 he was convicted of another public nuisance and possession of a small amount of marijuana. He was also convicted of “assault or obstruct police officer in public place while adversely affected by intoxicating substance licensed premises” and ordered to perform 60 hours of community service.[4] He said he was returning home from a party and the police incorrectly thought he had been involved in a street fight. He said because he was intoxicated the police did not believe him. They kicked him, he fell to the ground, and all three officers put their feet on him (his back and neck), before cuffing him and putting him in a police vehicle. He said he was accused of biting one officer but as there was no evidence that allegation was dismissed. He breached the community service order. He claims that happened because he was unemployed, and he became homeless. 

    [4] Exhibit G1, G-Documents G2, page 31.

15. In March 2017, the Applicant committed rape and attempted rape.[5] He was remanded in custody for 15 months and sentenced in September 2018.[6] The time he had served on remand was counted as time served under the (concurrent) sentences, and the balance of the sentences were suspended for five years. That is, he was released from custody.

    [5] Exhibit G1, G-Documents G2, page 31.

    [6] Exhibit G1, G-Documents G2, page 40.

16. The Applicant did not re-offend until January 2020. Between January 2020 and December 2021, he was caught with marijuana or things connected with drug use a handful of times, he breached bail undertakings, and he was caught with tainted property.[7] I do not have any details about the tainted property offence although the Applicant was not punished on top of the penalties, he received for other offences which suggests it was a very minor offence.

    [7] Exhibit G1, G-Documents G2, page 29.

17. The first time the Applicant was dealt with for offences in this period, he was sentenced to imprisonment for one month for breaching his bail, fully suspended for nine months. He was later sentenced to probation for 12 months for other offences. He breached all the suspended sentences and the probation order by continuing to offend. The one month suspended sentence of imprisonment for breaching bail was fully invoked although the Applicant was given immediate parole. On 2 December 2021, the suspended portion of his sentence for the sexual offences was partially invoked and he was imprisoned for one month. Shortly after that, his visa was cancelled.

18. The Judge who dealt with the Applicant on 2 December 2021 referred to the Applicant needing to stop using methylamphetamine.[8] There is no evidence in the form of police reports about what drugs the Applicant was caught with on any occasion. The Applicant was adamant that the only time he has ever used methamphetamine was at the party prior to the sexual offending and that the drug he always used was cannabis. He also indicated that, in relation to the possess dangerous drugs offences from January 2020, the woman with whom he was in a relationship from early 2020 would pressure him to get drugs for her and that explains at least some of the possess dangerous drugs offences.[9]    

    [8] Exhibit G1, G-Documents G2, page 29.

    [9] Exhibit G1, G-Documents G2, page 34.

19. In 2022, the Applicant was dealt with for possessing dangerous drugs on the day of his previous sentencing hearing and sentenced to imprisonment for 92 days which was declared as time already served. The suspended sentence for the sexual offences was also partly invoked and some of that was declared as time already served. It seems clear that these sentences of imprisonment, which were very short or declared as time already served, reflected the persistence of the Applicant’s offending rather than the seriousness of the individual offences. 

20. In Direction 99, there are nine considerations that I am to consider as far as they are relevant. Five are relevant.

    THE PROTECTION OF THE AUSTRALIAN COMMUNITY

21. Paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm because of criminal activity or other serious conduct by non-citizens.

    The Nature and Seriousness of the Offending or Other Serious Conduct

22. The offences that really go against the Applicant for present purposes are the rape and attempted rape. I do not consider the other offences to be serious and there is no evidence that anyone was harmed by their commission.

23. With respect to the sexual offences, the Applicant was intoxicated (alcohol) and he had taken a combination of methamphetamine, cocaine and “pills” at a party. He said they were given to him by backpackers. He had not had those drugs before. He had been caught in possession of methamphetamine before but that was not for his own use. The interpreter who assisted the Applicant to give his evidence used the expression “without my five senses” when translating the Applicant’s evidence about this offending. I take that to mean the Applicant was not in his right mind.

24. According to the sentencing remarks, the victim, who the Applicant knew because she had helped him to get marijuana, was asleep in an unlocked residence. It was alleged that the Applicant inserted his finger into her vagina and then tried, but failed, to insert his penis. He also rubbed his sperm onto her skin.

25. When the police questioned the Applicant the next day, he lied twice, saying he was elsewhere at the time. He explained to the Tribunal that he was still intoxicated and still without his “five senses”. He did not remember doing it, and he did not believe he would do something like that, so he did not believe he had done it at that time. Further, he was afraid of going to gaol.

26. However, the Applicant’s semen was found on the victim and when the police told him that he had committed the offences, he accepted that he had, and he pleaded guilty. The Applicant did not try to avoid blame by claiming the victim consented or that there was another explanation for his semen being on her skin. He did not put her in a position where she had to give evidence and relive the trauma.

27. There is very little in the way of detail and context in relation to this offending before me. For example, there is nothing about what had occurred between the Applicant and the victim beforehand. How did she know what he did, seeing as she was asleep? Did she wake up part way through? How much of it was she aware of? Why did the Applicant stop? There is no allegation that she told him to stop or fought him off, so presumably, he stopped of his own volition. He accepted the allegations without question once the police told him they had his DNA, so there was never any scrutiny in the court process of the allegations and the evidence. I accept that the Applicant committed the offences, but that is all I accept. There is no allegation that he was forceful or that it was premeditated, or that he did not stop voluntarily.        

28. The learned sentencing Judge described the offending as abhorrent, and it obviously is. Another Judge, who dealt with him for breaching the suspended sentence that was imposed for this offending,[10] said “the fact that you were drunk is no excuse”. I agree it is not, as he put himself in that state and he committed those acts. The sentencing Judge found that there was no violence apart from the violence that is inherent in rape. The offending, the Judge said, had a devastating effect on the victim, who resorted further to drugs and alcohol to deal with it. She self-harmed, and she became homeless for a period because she alienated herself from her family. At the time the Applicant was sentenced, she had made some improvements to her life.

    [10] This is a correction.

29. According to the Direction, these are very serious offences. The Applicant was sentenced to four years for the rape and two years for attempted rape. That is indicative of serious offending. Given the time the Applicant had served on remand, he was released right away and the balance of his sentence was suspended for five years.

30. The other offending mostly involves public nuisance and possession[11] of dangerous drugs, which the Applicant identified as “weed”, i.e. cannabis. There is repeated offending there. It is moderately frequent. Probably the only cumulative effect is that the police had to keep arresting the Applicant. There is no evidence of any violence, and it seems that the Applicant may have been the victim of racial bullying at a particular night club he used to attend which was the only club in the area. He did not really have a way to avoid those people if he wanted to go out and socialise in the way people of that age do.

    [11] This is a correction: “Possession”, not “personal use”. 

31. In relation to the assault or obstruct police offence while intoxicated at licensed premises, there is not any documentary evidence about the factual basis of that offence. The Applicant said the police wrongly identified him as having been in a group of people who had been fighting, and they were quite physical with him. On the evidence before me, I have no reasons to think a court accepted that the Applicant assaulted, as opposed to obstructed, police. Nor do I have reason to think the obstruction was serious. There is nothing in the evidence to support either of those findings.

32. After the Applicant’s release from prison, he was caught in possession of dangerous drugs which he identified as “weed”, or implements,[12] on some seven occasions, and he failed to appear in court a couple of times, in breach of his suspended sentences. He also breached a probation order and was assessed as having a poor response to supervision. He was ultimately returned to prison and ordered to serve a portion of a suspended sentence.[13]

    [12] “or implements” added.

    [13]  Corrected from “the rest of the suspended sentence”. The learned Judge said it would be unjust to activate the whole of the suspended sentence.

1. The learned Judge who made that order made the comment that “[The Applicant was] not motivated to stay away from intoxicants that put [him] at risk of further offending”. It is not clear what sort of offending Her Honour was referring to but the intoxicant that the Applicant said he kept being caught with, being marijuana, is quite different to the cocktail of methamphetamine, cocaine, alcohol and pills that he had taken when he committed the very serious offences (the sexual offences).

   The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

2. I must consider, on a cumulative basis, the risk that the Applicant will re-offend and the harm to the Australian community, or individuals in the Australian community, from any further offending.

3. The harm from further sexual offending is very serious and any real risk of that occurring again is unacceptable.

4. I take into account that the Applicant considers that he was not in his right mind due to a cocktail of drugs and alcohol when he committed those offences, he had never taken those drugs before, he has not taken them since, and he seemed sincere when he said he would never take them again.

5. The Applicant was remanded in custody for 15 months before he was sentenced for those offences. The Judge that sentenced him described him as a model prisoner, working as a welder in the work unit. He got on well with other prisoners and was rewarded with single cell accommodation. He had shown insight by seeking and receiving counselling. That is what the Judge accepted, and I accept it. He competed courses focused on drugs and alcohol. The operators of the prison had said the Applicant was a role model and mentor to other prisoners. His Honour accepted that he was remorseful and ashamed of his offending, and I accept that. The Applicant gave evidence that he was actually the welding team leader. Further, he said he respected everyone, and he encouraged other prisoners to be respectful, avoid drugs and behave well.

6. The Applicant said he did not want to do a sex offenders course because he felt so terrible about what he did, he could not bear to think about it. I have given a lot of thought to whether the Applicant’s refusal to do a sex offenders course, and the fact that he has not done one, increases the risk that he will re-offend in that way. I do not have the benefit of an expert witness to assist me with that question. However, the purpose of sex offender courses is to get the offender to accept that the offending was wrong and unacceptable, that any kind of sexual offending is wrong and unacceptable, and to identify ways to change and to eliminate the risk of doing it again. I think the Applicant is already there. He was not in his right mind when he committed the offences, he could not believe he had done those things, and he felt horrible and still does feel horrible about what he did. He has never, since then, taken drugs like the drugs he had taken that night, and there is there is no suggestion that he has ever behaved inappropriately in a sexual manner since then. I believe the evidence he gave about all of that was truthful. I consider that the risk of the Applicant committing another sexual offence is miniscule. I am not satisfied that there is a real risk that he will commit further sexual offences.

7. The harm from further personal use of marijuana by the Applicant is really nothing. If he is hurting anyone, it is himself. Between September 2018 and February 2020, the Applicant did not commit any offences. However, in early 2020, he started a relationship with a lady who is still his girlfriend. Unfortunately, she suffers from schizophrenia, and she was using marijuana. The Applicant said she often pressured him to get marijuana for her, and when he refused, she would cry and carry on and threaten to kick him out of their home, so he gave in and got it for her. That is why he kept getting caught with small amounts of drugs[14] and was eventually returned to prison and ultimately taken into immigration detention.

   [14] Corrected from “marijuana”.

8. There is no evidence that the Applicant engaged in any poor behaviour in custody, ever. There is no evidence of drug use even though it is well accepted that drugs can be obtained in prisons and detention centres. The Applicant indicated that in immigration detention he had continued to behave the way he had in prison, by being respectful, staying out of trouble, and teaching other detainees to do the same thing. He mentioned that there is some tension sometimes between groups of detainees, and that he tries to stay away from that and keep out of trouble. It seems he has been successful in that.

9. Getting drugs[15] for a person with a mental illness is obviously harmful. I must consider the harm that might come from that, or the risk that the Applicant would do it again. The Applicant said that if he gets his visa back he will not live with his girlfriend. He will live close to his aunt so he can be near his daughter, “Child 2”. He wants to help and support his girlfriend and keep doing courses to prevent him from returning to drug use. He plans to continue counselling with Drug Arm in the community, and he said the Department of Child Safety, Seniors and Disability Services (“Child Safety”) has arranged for support for him. I accept that he has very strong motivation to stay away from drugs and never help his girlfriend to get drugs for herself, and that motivation is Child 2. The Applicant wants to be a parent to her, and he wants his girlfriend (who is her biological mother), to be a parent to her as well. The Applicant knows he has must prove himself to Child Safety and they will drug test him regularly.    

   [15] Corrected from “marijuana”.

10. The last Judge who sentenced the Applicant before his visa was cancelled commented on the fact that he kept offending and simply not choosing respect the laws or respect the courts. There are some failures to appear in accordance with bail conditions and a breach of a Community Service Order which might suggest that too. However, the Applicant explained those, and I am satisfied with his explanation. He also explained the drug offences. The Applicant’s flawless behaviour in custody indicates that he does respect the law and the administration of justice.   

11. I consider the risk that the Applicant will offend in any way in the future to be remote. For Primary Consideration 1, I allocate moderate weight against revoking the cancellation of the Applicant’s visa.   

    THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

12. Primary Consideration 5 also concerns the Applicant’s offending, because it is about the expectation that the Australian community has about non-citizens who hold visas.  Such persons are expected to obey Australian laws, and when a non-citizen has engaged in serious conduct, the Australian community normally expects the government not to allow them to stay in Australia. One type of offending that is treated particularly seriously is serious crimes against women, and that includes sexual offences. The Direction provides that these expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

13. This consideration weighs heavily against the Applicant.

    THE STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA

14. Here I am to consider any impact of the decision on the Applicant’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. I should also consider the strength, duration and nature of any family or social links generally with persons in that category. I should give more weight to the Applicant’s ties to children in that category.

15. In addition, I should consider the strength, nature and duration of any other ties the Applicant has to the Australian community. In particular, where a non-citizen has been ordinarily resident in Australian during and since their formative years, that warrants considerable weight in their favour regardless of when their offending commenced and the level of that offending. The length of time a non-citizen has resided in Australia should be given more weight if they have contributed positively to the Australian community in that time. Less weight should be given where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.

16. The Applicant was nearly 19 years old when he came here so he did not spend any of his formative years here. He started offending three years after he arrived although they were not serious offences. He has been in Australia for 13 years. He has contributed to the community through employment, and he volunteered his time to help with the clean-up effort after the Brisbane floods. That was a huge effort and the Applicant helped quite a bit.

17. When the Applicant came to Australia his uncle and aunt were already here. They have two children, aged eight and nine. He once helped them move house, by cleaning and assembling furniture, and he minded their children. They have care of Child 2.

18. The Applicant came here with his three brothers and their wives and children. His deceased brother has an adult child here, one of his brothers has two minor children and another brother has one minor child. 

19. The Applicant has good relationships with all his relatives here. They encourage him to be good. I can infer from that, that they care about him and if he is sent back to Sierra Leone, it would have a negative impact on them emotionally. 

20. The Applicant has another daughter, “Child 1”, who is nine years old. She lives with her maternal grandmother because her mother was abusive to her. They are in Sydney. The Applicant gets along with her grandmother and when he lived in the community, he visited her every Christmas holidays. Since he has been in custody, she always asks about him, and she is worried that he will be deported, and she will never see him again. He could not contact her when he was in prison but now, he contacts her regularly on Facebook and by video call twice a month. 

21. The Applicant’s younger daughter, Child 2, is one year old and very soon after she was born Child Safety took her into their care, with the consent of the Applicant and his girlfriend. That is because his girlfriend could not take care of her because she was homeless, and she has mental health problems. The Applicant suggested that his aunt look after Child 2 and Child Safety agreed. Child 2 was born in November 2021 and a month later the Applicant was imprisoned for one month for breaching his suspended sentence and then his visa was cancelled. For most of Child 2’s life the Applicant has been in custody. However, he talks with his aunt on the phone and Child 2 hears his voice. He thinks she knows he is her father.   

22. The Applicant has a painting apprenticeship lined up and that employer will also help him with accommodation. He’s also confident that he can get a job with a former employer because he knows the manager there and he offered him a job. He intends to assist his aunt financially to help her not only with the costs of Child 2 but also with her own children.

23. Child safety will get the Applicant into some programs, and they will drug and alcohol test him regularly. They will decide when he can have his daughter back. It is up to Child Safety to determine what sort of contact he will have with her.

24. I accept that the Applicant loves both his daughters, and he wants to be present in their lives. What is more, I accept that he needs to be present in their lives. That was something he kept coming back to in the hearing; he kept saying that he needs to stay here and be a father for them. He talked about that more than he talked about his fear of what would happen to him if he had to return to Sierra Leone. I accept that if the Applicant stays in Australia, he will be a part-time father to Child 1 and probably more involved with Child 2, and if he is deported, they will not have the benefit of that.    

25. Given all these matters, I allocate moderate weight in the Applicant’s favour for this primary consideration.

    THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

26. Here, I must determine whether a non-revocation decision is or is not in the best interests of a child affected by the decision.

27. Subparagraph 8.4(4)(a) of the Direction sets out a number of factors to take into consideration, which can be relevantly summarised as:

    ·     the nature and duration of the relationship between the child and the Applicant. Less weight should generally be given where there have been long periods of absence, or limited meaningful contact;

    ·     the extent to which the Applicant 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;

    ·     the likely effect that any separation from the Applicant would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways; and

    ·     whether there are other persons who already fulfil a parental role in relation to the child.

28. The Applicant did not say much about his minor cousins or nieces and nephews, but I am prepared to infer that he made some level of positive contribution in their lives simply by being around and that there would be a slight benefit to them if he were to stay in Australia.

29. The Applicant has had very limited contact with each of his daughters, however he has made a consistent effort to maintain visits with Child 1 and to stay in touch with both daughters. I do not think his absence has caused any trauma or hardship to either of them. If he is deported, it is unlikely that he could maintain regular contact or ever see them in person.

30. Both girls are being cared for by at least one person of whom the Applicant approves – he thinks they are well cared for. There is no evidence that he ever harmed or neglected either of them or caused any detriment to them. In fact, he arranged kinship care for Child 2 with his aunt who is happy to be her carer for as long as she is needed.     

31. If the Applicant stays in Australia, his involvement with Child 1 is likely to be limited to video calls and a visit each year. It is something of a positive contribution. With respect to Child 2, he will move close to his aunt, and he will do what he has to do for Child Safety to allow him to have contact with her and ultimately to have care of her so he and his girlfriend can parent her. I accept that the Applicant wants to get a job and do the recommended courses. He intends to help his girlfriend stay off drugs. His aunt is a good influence - she tells him he has to change his ways and be a good father.

32. The fact that the Applicant is so willing to do what Child Safety wants him to do, and that he wants to be ready before he has Child 2 in his care, tells me that he is putting her best interests first, and that is significant. It is obviously very important that he puts her interests ahead of her mother’s interests too, and I think he is doing that because he does not intend to live with Child 2’s mother if she uses drugs. I have confidence that the Applicant will not re-offend so it seems that there are very good prospects that he will come to have Child 2 in his care, which means she will be with at least one loving, pro-social parent. Further, the Applicant indicated that his aunt is going to help him. Keeping the Applicant in Australia is very strongly in Child 2’s best interests.

33. For this primary consideration, I allocate significant weight in the Applicant’s favour.           

    FAMILY VIOLENCE

34. There is no evidence of any kind that the Applicant has engaged in family violence so this consideration is not relevant.

    OTHER CONSIDERATIONS - EXTENT OF IMPEDIMENTS IF REMOVED

35. The only relevant Other Consideration is the Extent of Impediments if Removed. I am to take into account the extent of any impediments that the Applicant may face if removed to Sierra Leone in establishing himself and maintaining basic living standards compared to what is generally available to other citizens of Sierra Leone, taking into account:

    (a)the Applicant’s age and health;

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

    (c)any social, medical and/or economic support available to the Applicant in Sierra Leone.

36. The Applicant is 32 years old, and he does not have any medical or mental health conditions. He speaks a language that is spoken in Sierra Leone. I do not know how familiar he would be with the culture. He left when he was five years old in the middle of a civil war. I do not have the benefit of country information except for what is on the Smart Traveller website which is an Australian Government website. It states that there is a high crime rate, serious infectious diseases (including, recently, Ebola), no access to free medical treatment, and evacuation would be required for a serious injury.

37. I have no reason to think there is any form of government income support that would be available to the Applicant. He clearly has skills including welding skills, but I have no information about his prospects of gaining employment and being able to obtain food and accommodation. I infer that if the medical system is struggling and crime is high, then the economy is probably poor.

38. The Respondent has pointed out that these are things that affect the population of Sierra Leone, and that is true. The Applicant said he would be in a worse position because he does not know anyone of have anywhere to live in Sierra Leone. He fears he will die in the street. I agree that he would be in a worse position than the general population because he will not have the protection of a family or a family home. He has no-one and he knows no-one there.       

39. This Other Consideration weighs moderately in the Applicant’s favour. 

    CONCLUSION

40. Taking the relevant mandatory considerations into account, with the weightings I have allocated, the correct or preferable decision is that the Applicant’s visa be returned to him so he can lawfully remain in Australia, in the wider community. Consequently, I exercise the discretion to revoke the cancellation of the Applicant’s visa.

    DECISION

41. The decision under review is set aside and the Tribunal revokes the cancellation of the Applicant’s visa.

I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy

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

Associate

Dated: 24 August 2023

Date of hearing:	2 and 4 August 2023
Applicant:	In person
Solicitor for the Respondent	Hannah Anderson Clayton Utz

Annexure A

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	G-Documents – (Pages 1 to 295) (G1 to G11).	T	-	02 June 2023
A1	Certificate of Attendance Drug Rehabilitation Management.	A	06 July 2023	10 July 2023
A2	Certificate of Completion from Drug Awareness Rehabilitation Management.	A	06 July 2023	10 July 2023
A3	Letter of Attendance from Drug Awareness Rehabilitation Management.	A	06 July 2023	10 July 2023
A4	Letter of Completion Drug Awareness Rehabilitation Management.	A	06 July 2023	10 July 2023
A5	Workshop Evidence: Eight photos of Drug Awareness Rehabilitation Management workbook	A	-	10 July 2023
A6	Certificate of Attendance Drug Rehabilitation Management.	A	-	27 July 2023
A7	Certificate of Completion from Drug Awareness Rehabilitation Management.	A	-	27 July 2023
A8	Singular Photo of Drug Awareness Rehabilitation Management Workbook	A	-	27 July 2023
A9	Duplicate Workshop Evidence: Eight photos of Drug Awareness Rehabilitation Management Workbook.	A	-	27 July 2023
R1	Respondent’s Statement of Facts Issues and Contentions (1 to 15 pages)	R	13 July 2023	13 July 2023
T1	Smart traveller Country Information – Sierra Leone last updated 23 June 2023	T	28 June 2023	2 August 2023