BCDC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

BCDC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1424 (14 April 2021)
Division:GENERAL DIVISION
File Number: 2021/0604
Re:BCDC
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:  Member Rebecca Bellamy
Date of Decision:                   14 April 2021
Date of Written Reasons:      20 May 2021
Place:  Brisbane
The decision under review is affirmed.
........................[SGD]................................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class XB Subclass 200 – Refugee visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – domestic violence and other alcohol related offending – consideration of Australia’s international non-refoulement obligations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
HZCP v Minister for immigration and Border Protection [2019] FCAFC 202
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Home Affairs v Omar [2019] FCAFC 188
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
SECONDARY MATERIAL
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Rebecca Bellamy
20 May 2021
THE ISSUE BEFORE THE TRIBUNAL

The Applicant is a 50-year-old citizen of the Democratic Republic of Congo (“Congo”). In February 2010 when he was 39 years old, he and his wife and children moved to Australia. The most recent visa granted to him was a Refugee (Class XB) (Subclass 200) visa (“visa”).[1]
[1] Exhibit G1, Section 501 G-documents, G16, page 76.
On 11 December 2019 a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full time custodial sentence.[2] On 18 December 2019, 7 November 2020 and 15 December 2020 the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[3] On 30 December 2020, the Respondent decided not to revoke the cancellation.[4]
[2] Ibid, G12 page 47.
[3] Ibid, G13, G14 and G18.
[4] Ibid, G3.
The Applicant subsequently lodged an application for review in this Tribunal 29 January 2021.[5] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[5] Ibid, G1.
The hearing of this application proceeded on 24 and 25 March 2021. The Applicant gave evidence via videoconference with the assistance of an interpreter. His eldest daughter and three friends gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4The 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.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[6]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[7]
[6] [2018] FCAFC 151.
[7] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[8]
[8] Ibid.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 4 March 2019, the Applicant was sentenced to a term of imprisonment of two years. What matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[9] Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[9] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, at the time the Tribunal made the decision, Direction No 79 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) had application.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 6.3 of that Direction contained several principles to inform a decision maker’s application of the considerations in paragraphs 7 and 8.
Paragraph 7(1) of the Direction provided that:
Informed by the principles in paragraph 6.3 above, a decision-maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[10]
[10] The Direction, sub-paragraph 7(1)(b).
Paragraph 8(1) of the Direction provided that:
Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...
Part C provided for the decision-maker to take into account “Primary Considerations”[11] and “Other considerations”.[12] The Primary Considerations are set out in paragraph 13.(2) of the Direction (contained in Part C) and they are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
[11] The Direction, paragraph 13.
[12] The Direction, paragraph 14.
The Other Considerations are set out in paragraph 14(1) of the Direction (contained in Part C) and they are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[13]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[14]
[13] [2018] FCA 594.
[14] Ibid, [23].
BACKGROUND AND OFFENDING
The Applicant was born in Congo. He married his wife when he was 22 years old and she was 17 years old. They had several children. His wife worked with her brother in a pharmacy. In 2006, his wife’s brother travelled to another village to sell medicine and did not return. His wife was subsequently abducted by soldiers and accused of selling medicine to a rebel group. She was, in fact, selling medicine to any customer who wished to buy it. She does not know if the soldiers were with the government or a rebel group. The soldiers tortured and raped her repeatedly. She became very unwell from that ordeal. A visiting government official, seeing the condition she was in, directed the soldiers to take her to a hospital.
Meanwhile, soldiers went to the Applicant’s home looking for him and his wife. One of his brothers was there and they shot and killed him. When the Applicant found out what had happened to his brother and his wife, he retrieved her from the hospital, and they and their children escaped to Uganda.[15] They were granted Refugee visas in 2009 and in 2012 they arrived in Australia.[16] While in Uganda they had more children. One of their children died of sickness and another went missing, presumed abducted. By the time the family came to Australia the Applicant and his wife in particular had suffered a great deal. The Applicant and his wife are now estranged but do not appear to be divorced. For ease of reference I will refer to her as his wife throughout these reasons.
[15] Exhibit R2, Respondent’s Tender Bundle, TB10, page 458.
[16] Exhibit G1, Section 501 G-documents, G16.
The family initially settled in Toowoomba. The Applicant found work and he and his wife were very active in their church. His wife became a Pastor. They now have eight children ranging in age from seven to 27.[17] At some point, by 2012 it seems, the Applicant developed a problem with alcohol.
[17] Transcript, pages 69 to 71.
According to an Emergency Examination Order (“EEO”) dated 1 January 2012, the Applicant’s wife called police after he had threatened to kill himself with a boning knife in his possession. He has been drinking all day. The police thought the Applicant showed signs of depression.[18]
[18] Exhibit R2, Respondent’s Tender Bundle, TB2, pages 21 to 23.
According to police records, on 15 April 2013 the police responded to a report that at approximately 1:00am the Applicant had returned to his home intoxicated and had gone to the lounge area where his wife, some older children and another person were watching a movie. He demanded food and his wife prepared some food for him. He then became verbally abusive towards his wife at which point the other person tried to stop him. The Applicant got a kitchen fork and approached that person in an aggressive manner. That person retrieved his laptop, went outside and placed his laptop on a car. The Applicant followed, still holding the fork and he smashed the laptop on the ground and stomped on it. That person left the address. The Applicant went back inside the house. His wife had gone to bed with their baby. Approximately 15 minutes later the Applicant entered the bedroom, jumped on top of his wife, grabbed her by the shirt and head-butted her causing a “busted lip”. He then punched her three times in the face. The baby received a scratch to the left eyebrow. The police report further noted that all the children were present during this incident and a person whose name has been redacted intervened and contacted the police. It also notes that the Applicant was intoxicated during the incident and regularly threatens to kill his wife when he is intoxicated.[19]
[19] Ibid, TB2, pages 25 to 30,
The Applicant was not convicted of any offence arising from this incident. In the hearing, the Applicant denied that there had been a laptop, and said that maybe their children told his wife to make the allegation about the laptop.[20] He said at the time of that incident he had consumed some wine and it made him feel drunk.[21] He denied having had a fork, and said that when the police were there he was afraid and was sitting in his car while they spoke with his wife.[22] He denied attacking his wife, saying that she had wanted to get out of the bedroom so she had pushed him but there was no fighting. He said he did not hit his wife.[23] He said the injury to the baby was already there as he saw it after he came home from work.[24] He admitted to having yelled at his wife, adding that it is normal in his culture for a husband to shout at his wife.[25]
[20] Transcript, page 15, lines 34 to 36.
[21] Transcript, page 15, lines 40 to 45.
[22] Transcript, page 17.
[23] Transcript, page 17.
[24] Transcript, page 18, lines 5 to 8.
[25] Transcript, pages 15 to 18.
The Applicant’s eldest daughter, Ms R, gave evidence.[26] She denied that the Applicant had ever been violent to her mother, although she admitted that she did not live in the family home in Brisbane as she lived with her husband. She said she recalled the incident in 2013. She said her parents had an argument and her mother slipped and fell hard in the bathroom and started screaming. She denied that the Applicant physically attacked her mother. She said her brother called the police because their mother was bleeding terribly and he was “very, very afraid”. She was asked if she thought it strange that her brother, upon seeing their mother injured, called the police rather than asking their mother if she was okay and what happened, she gave an unresponsive answer, instead saying:
“Yes, because they was arguing, there was an argument. That’s why my brother maybe thought they had a fight or something. It’s just the bleeding was crazy.”
[26] Transcript, pages 92 to 98
She said her friend had a laptop which was on a car and then “he accidentally drove” and the laptop fell and was smashed.[27]
[27] Transcript, page 96, lines 29 to 34.
I find Ms R’s evidence unconvincing given she claimed her mother was bleeding terribly but the police report did not mention a lot of blood, and she did not satisfactorily explain why her brother had assumed the Applicant had hurt her mother.
As a result of this incident a Protection Order was granted on 18 April 2013 by consent without admissions. That order required the Applicant to refrain from committing domestic violence against his wife and seven of their children.[28] The order ran until 19 December 2016.[29]
[28] Exhibit R2, Respondent’s Tender Bundle, TB2, page 32.
[29] Ibid, TB2, page 109.
On 30 September 2013, the Applicant was caught drink-driving as a result of a report to police that he was outside a dwelling shouting loudly before having driven away. His blood alcohol concentration was 0.225.[30] He was disqualified from driving for 18 months. In the hearing, he said he did not know he was intoxicated at the time.[31]
[30] Exhibit R2, Respondent’s Tender Bundle, TB2, pages 40 to 41; TB3, page 133.
[31] Transcript, page 62, lines 14 to 19.
Police records indicate that on 31 August 2014, the police were called to an address in relation to an ongoing disturbance. A number of people had been consuming alcohol. Some were smashing beer bottles in the street and having a loud verbal argument. The Applicant was observed by police to be unsteady on his feet and slurring his speech. When police attempted to speak with him, he was belligerent and used a raised voice. He lunged towards another person, grabbed him by his shirt and attempted to punch him. Police intervened and arrested him for public nuisance. He attempted to break free of the grasp of an officer and charge at another officer with his fists clenched. He was handcuffed, put inside a police vehicle and driven home. His family members agreed to take into their care. He then head-butted the side window of the police vehicle. Police opened the door so they could remove him so he would stop injuring himself or damaging the window. The Applicant then tensed up his body, locking his legs in the vehicle footwell. Police had to use force to remove him. As the police removed his handcuffs, he struggled violently which prompted his family to withdraw their care. He was then taken to the Toowoomba Watchhouse. During the trip he kicked his feet out and connected with the rear window of the police sedan.[32]
[32] Exhibit R2, Respondent’s Tender Bundle, TB2, pages 34 to 35.
In the hearing, the Applicant admitted that this all happened, and the account was correct.[33] On 16 September 2014, he was convicted of the offences of assault or obstruct police, and committing public nuisance. He was fined with no conviction recorded.
[33] Transcript, page 20.
On 30 March 2016, the Applicant was caught drink-driving with a blood alcohol concentration of 0.135. The car he was driving was not fitted with an alcohol interlock device in contravention of a condition of the Applicant’s licence.[34] He was disqualified from driving for six months. In the hearing, the Applicant admitted that he had been drinking the night before and had deliberately driven his wife’s car because his car had an alcohol interlock device on it and his wife’s car did not.[35]
[34] Exhibit R2, Respondent’s Tender Bundle, TB2, pages 44 to 45; TB3, page 133.
[35] Transcript, page 63, lines 1 to 7.
According to a report that the Applicant’s wife made to the police, at around 9:00pm on 2 May 2016, she arrived home with some friends. The Applicant had been drinking and had an argument with his wife and one of her friends regarding his belief that his wife was cheating on him. Another person told the Applicant to leave his wife’s friend alone. The Applicant sat on his wife’s friend and put his hands around her neck. She pushed him to the ground and left the house. The Applicant then put his hands around his wife’s neck. She pushed him off and went into her daughter’s room to hide. The next morning the Applicant got out of bed and had a conversation with his wife in relation to the incident the night before. He threatened to kill her.[36] This incident did not result in a conviction, but the Applicant’s wife went to court the following day to get a protection order.
[36] Exhibit R2, Respondent’s Tender Bundle, TB2, page 50.

On 9 May 2016, a Temporary Protection Order was made against the Applicant, protecting his wife, all of their children and an associate of his wife.[37] This order was in force until 30 May 2016.[38]
[37] Ibid, TB3, pages 121 to 123.
[38] Ibid, TB2, page 110.
In the hearing, the Applicant denied that there was any violence and he said he did not threaten to kill his wife. He claimed his wife made the report to the police to take him away from the family.[39] He said he was still living with his wife at that time. When asked if she had asked him to leave the house prior to that incident, he said she had not. When asked why she would have up those accusations in order to make him leave the house, he said that if they were separated then after 10 months she would get a house from the government and pay less rent.[40] He later said his wife was “pushed” to make the report to the police by her new boyfriend (“Mr Z”) and that his wife could not speak English. The Applicant then said Mr Z made the report to the police and his wife signed it as she does not know English.[41] I note that the police report indicates that it was the Applicant’s wife who spoke to the police when they attended her home.
[39] Transcript, page 24
[40] Transcript, page 25, lines 1 to 26.
[41] Transcript, page 29, lines 1 to 20.
According to police records, on the night of 14 May 2016, the Applicant breached the Temporary Protection Order. Police attended at around 9:25pm and spoke with the Applicant’s wife who told them that she had seen the Applicant at her address. She said he had come to the home at around 8:30pm uninvited and asked her if he could sleep there. He stayed for around 30 minutes and then left.[42] The Applicant did not deny this.[43]
[42] Exhibit R2, Respondent’s Tender Bundle, TB2, page 59.
[43] Transcript, page 30.
Police records indicate that at 3.30am on 16 May 2016 the police responded to a 000 call from the Applicant’s wife. When police arrived at her home she appeared visibly shaken. She told police that she had gone to bed the previous night at around 10:00pm, and at around 3:00am she had woken up to see the Applicant standing in her bedroom next to her bed which scared her. She told him he was not allowed to be there, and he had to leave. He responded that he wanted to sleep in her bed, called her a prostitute and told her that the reason she left and was so she could sleep with other men. He got into her bed and she pushed him away, ran to another bedroom where her niece was sleeping and called the police. Upon seeing the police arrive, the Applicant ran away and jumped a fence at the rear of the property. The police used a police dog to track him. He initially refused to follow instructions to stay on the ground and not move. He grabbed out at police and suffered a minor bite from dog. He was restrained at the scene. The police report states that he was highly intoxicated and provided a breath sample of 0.392.[44]
[44] Exhibit R2, Respondent’s Tender Bundle, TB2, pages 55 and 60.
In the hearing, the Applicant said he went there looking for his clothes and his wife was there with the children. He admitted he knew he was breaching a protection order. He said he was trying to negotiate with her to live together again but denied having pushed her, calling her a prostitute or saying she wanted to sleep with other men.[45] He said it was not his wife who spoke with the police but Mr Z.[46] When asked if he knew why there was a Protection Order, he said it was Mr Z’s plan and repeated that his wife could not speak English. When asked if his evidence was that all of the allegations of him verbally abusing his wife or hurting his wife were made up by Mr Z, he said “Yes, it was someone’s plan and my wife signed, all my kids are aware of that”.[47]
[45] Transcript, page 30, lines 28 to 48.
[46] Transcript, page 31, lines 1 to 6.
[47] Transcript, page 32, lines 7 to 12.
The Applicant gave evidence that he and his wife met Mr Z after they moved from Toowoomba to Brisbane.[48] However, the first recorded allegation of domestic violence was in April 2013 when they lived in Toowoomba. When the Applicant was asked about that incident, he said he did not know if that was her plan in 2014.[49] When asked if his wife wanted to live by herself so she could get money from the government, why she would not simply ask him to leave, the Applicant did not give a responsive answer, instead saying it was Mr Z’s plan.[50]
[48] Transcript page 23.
[49] Transcript, page 32, lines 14 to 20.
[50] Transcript, page 33, lines 10 to 30.
Again, I note that the police report indicates that it was the Applicant’s wife who called the police and who told them what had happened.
Police records indicate that at approximately 5.00pm on 26 May 2016, the police attended the Applicant’s wife’s home and spoke with her. She said at approximately 4.30pm she had been home when the Applicant had walked in through the front door and she was scared to see him there. She told the Applicant to leave and he did, but he returned a short time later stating that his car had broken down. He asked his wife to forgive him and let him sleep in the house because he had nowhere else to stay. When she again told him to leave, he insisted on staying, but he left when she called the police.[51] The Applicant admitted to this, saying he was homeless at the time.[52]
[51] Exhibit R2, Respondent’s Tender Bundle, TB2, pages 78.
[52] Transcript, page 37.
On 30 May 2016, the Applicant pleaded guilty to, and was convicted of, a contravention of domestic violence order in relation to his conduct on 14 May 2016, and a contravention of domestic violence order, and “assault or obstruct police in public place while adversely affected by intoxicating substance - domestic violence offence” in relation to his conduct on 16 May 2016. He was sentenced to probation for 12 months. In passing sentence, the learned Magistrate said:
“Mr [name redacted], you have pleaded guilty to these charges and I give you a better penalty because of that. You are 46 years old. You were born in the Congo and came to Australia as a refugee in 2010. I take into account you spent four years in a refugee camp in Uganda and have witnessed some pretty horrifying things. Those experiences have led you to have post-traumatic stress disorder and you see a doctor about some of those conditions.
When people have been exposed to violence and witnessed violence, sometimes it has the effect of making them also use violence. On the 14th of May at about 9.30 10 pm, you went to the aggrieved’s house and stayed for 30 minutes. The good thing was you did not use violence on that time and you left when you were asked. Two days later at about 10 pm at night, you went back to the aggrieved’s house. I understand at that time, you were homeless and had nowhere else to sleep. You said some nasty things to your wife and you became angry and she was scared. You two have been together a very long time. You have eight children. It is sometimes very difficult to understand that a relationship is over. I do not know if that is indeed the case, but there is an order in Court that you cannot go there, and no matter how much you want to go, Court orders must be obeyed.
The police were called at 3.30 in the morning and you ran away from the house, knowing you should not be there. Your blood alcohol was .39, which is very high. In fact, you should have almost been comatose. I think the best way we can help you as a society is to put you on a 12-month supervision order by way of probation. Four days before these offences, you were placed on a probation order and I do not think it has had a chance to take an effect yet.
…
If you get angry, if you call her a prostitute, if you call her names, if you hit her, if you smash property, that is not being nice and it will breach the order. So after Court, you can speak with her civilly. If she does not want to speak to you, you cannot force her to. You can, however, contact your children. Just be nice, okay. Play it very carefully. Okay.”[53]
[53] Exhibit G1, Section 501 G documents, G10, pages 43 to 44.
In addition, a Protection Order was made against the Applicant. It ran until 18 December 2018.[54]
[54] Exhibit R2, Respondent’s Tender Bundle, TB2, page 108.
A probation report, dated 1 February 2019, states that the Applicant failed to report to the probation service on 23 June 2016 and 11 July 2016.[55]
[55] Ibid, TB1, pages 5 to 6.
On 19 July 2016, the Applicant breached the protection order that was made on 30 May 2016. On that day police attended the Applicant’s wife’s residence in response to a phone call from a witness. Upon arrival the police saw the Applicant standing between the home and an external semi-detached home. As they approached, he quickly walked away, then jumped over the back fence and ran. The police spoke with the Applicant’s wife, their two eldest male children and a witness who all confirmed that the Applicant had been at the address for a short period and left when police had driven up the driveway. The Applicant’s wife told the police that she did not want the Applicant at her home. On 29 July 2016 the police apprehended the Applicant in relation to this incident and he declined the opportunity to be interviewed. The police record notes that the police took body worn camera footage of the incident scene and digital field recordings of all conversations with the Applicant’s wife, the witnesses and the Applicant.[56] In the hearing, the Applicant said he was around but did not enter the house.[57]
[56] Exhibit R2, Respondent’s Tender Bundle, TB2, page 69.
[57] Transcript, page 34, lines 27 to 34.
On 29 August 2016, the Applicant pleaded guilty to, and was convicted of, contravening the domestic violence order (“DVO”) and fined.
Police records indicate that on the night of 16 September 2016, the Applicant called the police asking for assistance. The police found him lying in the gutter with his legs on the road, surrounded by a number of personal belongings. His pants belt was next to him and his pants had fallen down revealing his boxer shorts. He smelt strongly of liquor and his speech was slurred. When police got him to his feet he stumbled and required their assistance to stand.[58] He was subsequently charged with being intoxicated in a public place. The ambulance service arrived to assess the Applicant. He became aggressive and attempted to elbow paramedics. As police attempted to restrain him, he swung his right arm with a closed fist towards the face of a police officer.[59] He was subsequently charged with obstructing police. On the way to the police Watchhouse, the Applicant urinated in the police vehicle. Upon arrival he became aggressive towards Watchhouse staff and had to be restrained.[60] In the hearing, the Applicant admitted all of this[61] and said that he did not intend to urinate in the police car.[62]
[58] Exhibit R2, Respondent’s Tender Bundle, TB2, page 73.
[59] Ibid, TB2, page 73.
[60] Ibid, TB2, page 73.
[61] Transcript, page 35, lines 1 to 14.
[62] Transcript, page 35, lines 45 to 46.
On 23 November 2016, the Applicant was convicted of “assault or obstruct police officer in public place while adversely affected by intoxicating substance”, and wilful damage of police property. He received a fine.
On 19 December 2016, a DVO was made against the Applicant, protecting his wife and their children.[63]
[63] Exhibit R2, Respondent’s Tender Bundle, TB2, page 87.
On 10 January 2017, the Applicant was convicted of “contravention of domestic violence order (aggravated offence)” for his conduct on 26 May 2016 and sentenced to probation for nine months.
On 25 August 2017, the Applicant was convicted of assault or obstruct police officer and was fined on 30 March 2017. In the hearing, when asked about this offence, the Applicant admitted it and said he was “in the street” and was “mental”.[64]
[64] Transcript, page 38, lines 5 to 14.
According to police records, on 2 January 2018, the police attended the home of Ms R. The Applicant had been living with her in her garage temporarily. He was heavily intoxicated, and Ms R told him that he was not allowed to stay with her anymore because of his intoxication. She asked several times for him to leave but he refused so she contacted the police. The Applicant was picked up by another family member and taken to another location.[65] The Applicant did not dispute this. He said he was under stress and depression.[66]
[65] Exhibit R2, Respondent’s Tender Bundle, TB2, page 82.
[66] Transcript, page 48, lines 32 to 44.
Interestingly, Ms R gave evidence that she had never had to call the police to remove her dad from her garage. She said her father and brother had come to her house and there was some loud noise because they were arguing, and the neighbours called the police.[67] She denied having called the police. In light of the police report and the Applicant’s admission, I reject Ms R’s evidence about this incident.
[67] Transcript page 94, lines 1 to 10.
Police records indicate that at 9:00am on 2 February 2018 one of the Applicant’s daughters was walking back home after missing her school bus. She saw the Applicant get out of the car in front of her home and they said hello to each other. The Applicant walked towards the front door of the home and went inside. He asked if it was where his wife now lived, his daughter said yes, and he called it an ugly house. He then left the house and drove away. A few minutes later he came back, opened the front door, went inside, looked in the kitchen and the bedrooms, pointed to his wife’s room and asked if it was her room. His daughter nodded. He then tried to open the door to that room, but it was locked. The Applicant opened the door to his elder son’s room and spoke to him. He then left and drove away. A few minutes later he came back into the house and he told his daughter to make him something to drink. She made him tea. He drank the tea and left. The statement of facts for the purposes of the court proceedings identified the Applicant’s daughter, not his wife, as the complainant.[68]
[68] Exhibit R2, Respondent’s Tender Bundle, TB1, pages 12 to 14.
In the hearing, the Applicant said he dropped his child off at the front gate, but he did not enter the house.[69] He later admitted that he had gone inside the house.[70]
[69] Transcript, page 39.
[70] Transcript, page 40
Police records indicate that at around 7:00pm on 17 February 2018, the Applicant’s wife arrived home from grocery shopping. She took a rest in her daughter’s room. Her six-year-old daughter came running into the room and shut the door behind her. There was something stuck in the door frame, so the door was slightly open. Her daughter told her that the Applicant was inside the house. She switched off the light and saw a shadow of someone passing by the door. She looked through a gap in the door and saw that the Applicant was in the kitchen. He then went to speak to another daughter who asked him why he was there. He screamed “for me to be satisfied I need to end her life. I don’t care if I get locked up, I just need to kill her”.[71] The Applicant searched the house for his wife without success then went outside. His daughter followed him. He opened his car boot, picked up a knife and showed it to her. She said she was going to call the police. He put the knife back into the boot and got back into the car. There were three other people in the car at the time. The police were called about this incident and on 8 March 2018 they applied for a warrant for the Applicant’s arrest.
[71] Exhibit R2, Respondent’s Tender Bundle, TB1, page 13.
In the hearing, the Applicant denied that his wife was present at the time he was in the house, said he had only gone inside the house to have a coffee, and claimed that Mr Z had told her to make up the allegations.[72]
[72] Transcript, pages 41 to 42.
The Applicant was arrested on 23 March 2018 after he was pulled over for a roadside breath test. He registered a blood alcohol concentration of 0.064.[73]. He was not offered an interview due to his intoxication.[74] He was remanded in custody and remained there until 2 November 2018. His license was subsequently cancelled. In the hearing, the Applicant admitted that he knew he was drunk but “I was drinking not much to stop me from driving”.[75]
[73] Exhibit R2, Respondent’s Tender Bundle, TB2, page 113; TB6, page 295.
[74] Ibid, TB1, pages 12 to 14; pages 87 to 89.
[75] Transcript, page 63, lines 14 to 26.
On 15 December 2018, the Applicant breached a condition of his bail, and between 14 and 22 December 2018 he contravened a direction or requirement given by police. He was fined for these offences.[76]
[76] Exhibit G1, Section 501 G documents, G5.
Between 25 December 2018 and 5 March 2019 and between 23 February and 2 March 2019, the Applicant breached a condition of his bail. On 17 April 2019 he was subsequently sentenced to probation for six months for these offences.[77]
[77] Ibid.
On 4 March 2019, the Applicant was convicted of “contravention of domestic violence order (aggravated offence)” in relation to his conduct on 2 February 2018 and sentenced to imprisonment for six months with immediate parole. He was further convicted, in relation to his conduct on 17 February 2018, of “contravention of domestic violence order (aggravated offence)” and not further punished and of “enter dwelling with intent at night users/threatens violence-domestic violence offence” and sentenced to imprisonment for two years. He was given credit for 224 days’ time spent in pre-sentence custody and granted immediate parole. A further protection order was made that day.[78]
[78] Exhibit R2, Respondent’s Tender Bundle, TB2, pages 83 to 85.
In the hearing, the Applicant, in the course of denying the above offending, said he only pleaded guilty because he believed he would get a shorter sentence than if he had pleaded not guilty.[79]
[79] Transcript, page 47.
Police records indicate that on 7 March 2019, three days after being released from custody, at around 3.15am the police received a report from the ambulance service that the Applicant was wandering intoxicated on a road and acting in an erratic and aggressive manner. The police observed the Applicant to be extremely intoxicated. He said to the police “I am a guerrilla, I am a guerrilla fighter and really strong”. He then flexed his muscles and started doing push-ups in the middle of the road. Police asked him to stop multiple times, but he did not.[80]
[80] Exhibit G1, Section 501 G documents, TB2, page 93.
The Applicant admitted to this.[81] On 10 April 2019 he was convicted of public nuisance and fined.
[81] Transcript, page 43.
As part of his court ordered parole, the Applicant attended an alcohol counselling session on 15 April 2019.[82]
[82] Exhibit G1, Section 501 G documents, TB6, pages 300 to 301.
On 17 April 2019, the Applicant was sentenced to probation for the breaches of bail in late 2018 and early 2019. He was inducted into probation that day.[83]
[83] Ibid, TB6, pages 300 to 301.
An EEO before me indicates that on 5 May 2019 the Applicant called 000 and said he wanted to kill himself. He said he was unable to see his children because of a DVO. He said he had lost his wife to another man. He was heavily intoxicated.[84]
[84] Ibid, TB2, pages 98 to 99.
According to a “COURT REPORT BREACH OF COMMUNITY BASED ORDER” dated 17 October 2019,[85] on 8 May 2019 the Applicant had stated that alcohol counselling would not address his real issue of wanting to see his children, even after his parole officer had discussed with him that he had been using alcohol as a coping mechanism. The report states that:
“during the case management interview, motivational interviewing techniques were utilised to encourage [the Applicant] to engage with a psychologist to address his needs in a holistic approach”.
[85] Ibid, TB6, pages 300 to 301.
The report stated that in a case management interview on 19 June 2019, the Applicant was very resistant to completing a referral or engaging with a domestic violence program or a psychologist. The report states that “Further motivational interviewing techniques were utilised to encourage [the Applicant] to obtain a Mental Health Care Plan to engage with a psychologist”. On 24 July 2019 the Applicant failed to obtain a Mental Health Care Plan. He was then directed to obtain it by 28 August 2019. On that date he failed to present a Mental Health Care Plan, and he was directed to attend his GP that day, which he did, and he did obtain the Mental Health Care Plan. He had a psychologist appointment booked on 9 September 2019; however, he was unable to attend the appointment due to being remanded in custody (see below). The report noted that the Applicant had attended all case management interviews as directed.

In the hearing, when asked about the report that he was very resistant to completing a referral or engaging with a domestic violence program or a psychologist, the Applicant said that he thought at the time he had problems understanding English.[86]
[86] Transcript, page 58, line 39 two page 59, line 6.
Police records[87] indicate that the Applicant’s wife reported that on the evening of 6 September 2019, she received a phone call from a friend and became concerned for her children, so she went to Ms R’s home. She saw the Applicant get out of a maxi taxi and walk into Ms R’s house. He then walked out of the house and approached her car and stood at the driver’s window. He said:
“I give you both two weeks. You both will be dead. I will take my children back. You are Mutusi. You don’t believe my tribe. I will use my tribe to eliminate you. You are the enemy.”
[87] Exhibit R2, Respondent’s Tender Bundle, TB2, pages 101 to 102.
He then said words to the effect of “You are a witch. You are a slut and a prostitute. Your private part is a rubbish bin.”
In the hearing the Applicant denied having said any of those things and claimed that his lawyer told him to plead guilty to get a lighter sentence.[88]
[88] Transcript, pages 45 and 47.
The following day police arrested the Applicant. He said he wanted to participate in an interview however the police determined that he was too intoxicated to do so. He was remanded in custody.
A person who is only identified in the police report as a witness gave police an account that broadly corroborated the Applicant’s wife’s account except that this witness’s account of the second round of verbal abuse differed somewhat. It was that the Applicant had said, about his wife, “You are a witch. You have bewitched my wife. You made my wife a slight and prostitute. Pastor [redacted word] private part is a rubbish bin.”
On 1 November 2019, the Applicant was convicted of “contravening a domestic violence order (aggravated offence)” and sentenced to imprisonment for six months with immediate eligibility for parole. He was also dealt with for breaching the probation order imposed on 17 April 2019 – he was fined and resentenced to two terms of imprisonment of one month (concurrent). In passing sentence, the learned Magistrate said:
“Where, for burglary with intent, at night, threatening violence, you got two years imprisonment. And for another breach of a domestic violence order, you got six months imprisonment. And you have committed this offence only six months after that sentence. That is a serious aggravating feature that it indicates that you just
do not get it. How, after all this time and all of these convictions, you still do not
understand that you cannot commit acts of domestic violence is beyond me. To not only breach the terms of the order, but to make death threats against your wife is both disgraceful and mind-blowingly stupid.
It must have been apparent to you, after nine years in Australia, that this country is a little bit different to the Congo. And we do not tolerate domestic violence or violence or death threats or the breaching of Court orders. So the fact that you
persist in all of those things indicates that a deterrent penalty is required both to
[89] Exhibit G1, Section 501 G documents, G8, page 37.
punish you and to reinforce the message to you that these things are not going to be tolerated. The fact that you have committed these offences while on parole, I have already said, is a serious aggravating feature that has the consequence that the only appropriate penalty is a further sentence of imprisonment and this time you will not have an automatic right of release on a particular day. You will have to satisfy the parole board that you are a fit person to be released. Although it seems unlikely that, upon your release, it will be back into the Australian community.”[89]
On 21 May 2020, the Parole Board granted the Applicant’s release on parole from 23 June 2020.[90]
[90] Exhibit R2, Respondent’s Tender Bundle, TB6, pages 302 to 303.
Although the Applicant pleaded guilty to multiple acts of violence and threats in a domestic context, he denied all of it in the hearing. His denial of having engaged in such conduct dates back to at least July 2020 when he was interviewed by a psychiatrist working for the International Health and Medical Services (“IHMS”). The file note recorded that “Wife’s new husband has put her and all of his children under a DVO against him. DVO started four years ago, ends next year in June.” and “Late 2019: Ex-wife’s new husband falsely reported a breach…”[91]
[91] Exhibit A2, Letter of Ms R, dated 17 February 2021.
On 27 November 2020, an IHMS file note stated that the Applicant: “Denies the occurrence of domestic violence”.[92]
[92] Ibid.
An IHMS file note dated 30 December 2020, includes the following:
“…his daughter had the children over for dinner and client inadvertently turned up. Client said that his ex-wife’s new partner went straight to the police and said that he had threatened to kill her. Client said that he was picked up by police and encouraged to plead guilty by Legal Aid.”[93]
[93] Ibid.
The Applicant’s evidence was difficult. He often gave long-winded answers that were not responsive to the questions asked. He appeared to be pre-occupied with his belief and sense of grievance that his wife left him for Mr Z although none of the police reports mention the Applicant’s wife having another partner. Further, it was the Applicant’s wife who reported the threat to kill her and the violent behaviour on 2 May 2016, his verbal abuse (calling her a prostitute) on 16 May 2016, and his verbal abuse on 6 September 2019.
When the Applicant was asked if he ever had trouble remembering things that happened when he was drunk, the Applicant said yes.[94] He admitted that he was drunk during a lot of his offending from 2016 onwards.[95] It is quite possible then that the Applicant does not recall all of his offending, which undermines the reliability of his evidence.
[94] Transcript, page 61, lines 35 to 39.
[95] Transcript, page 59, lines 20 to 24.
Ms R, provided an email, dated 2 November 2020, in which she said:
“I’m writing this letter because we miss our dad, I’m his first daughter. On behalf of the whole family we acknowledge that our dad committed some mistakes. I know my dad for almost 26 years “Since I was born”. My dad is a loving, caring and responsible father. Please set him free. He’ve been there for almost a year I strongly believe that He’ve learnt a lesson and he will never do it again, Please set my dad free. Thank you”[96]
(Errors in original)
[96] Exhibit G1, Section 501 G documents, G15, page 75.
In another email, dated 17 February 2021, she said, among other things:
“On behalf of the whole family we acknowledge that our dad committed some mistakes and some of the charges are not correct. He just confirmed to be guilty because he was scared. The lawyer that supported him on the day convinced him to accept to be guilty so he can get arrested for a short period.
My dad’s English is poor he always say “Yes” to everything even when he doesn’t understand. His whole family was killed. We got no one on his side. Dad is the only family we’ve got. I’m getting low blood pressure is every day because I’m stressful. We are very worried because he’s been there for almost 2 years. I think that’s enough for a someone to learn their lessons”.[97]
[97] Exhibit A2, Letter of Ms R, dated 17 February 2021.
In addition to the oral evidence already mentioned, Ms R gave evidence that the Applicant does not speak English so every time he gets in trouble, he always says yes to everything. When asked about his convictions for domestic violence offences against her mother, she said they had some family issues between them and decided to separate. She said she did not live in the family home because she lives with her husband.
Ms R said her reference to “some mistakes” was a reference to the Applicant drinking and arguing with her mother. She said the Applicant never hit her mother. She said her mother would shout and her father would shout back, and that her father would shout, and her mother would shout back. She also denied that the Applicant had said he wanted to kill her mother.
Ms R was asked if she knew her father was being accused of doing things to her mother that he did not do at the time. She said yes because her mother could not speak good English and she blamed Mr Z. She said whenever Mr Z wrote something bad to make her father look bad, her mother would “just sign”. She was asked:
“If you knew at the time that your father was being accused of doing things to your mum, did you do anything about it? Did you go to the police and tell them what you thought was the truth?”
In response, she said:
“No. I never did that because I didn’t want to enter into this (indistinct), and even now I’m not feeling good, I just - I don’t know. But I never wanted to enter between my mum and my dad”.
When asked “Even though you thought that he was being accused of hitting your mum and threatening to kill her?”, she said “Yes. I never wanted to enter between them.”[98] When asked “And he has been stopped from contacting your younger siblings even?”, she said “The younger ones, they don’t have any phones”. When asked if she ever tried to talk to her mother about what she thought Mr Z was doing, Ms R said she did, and her mother said “We’ve been through a lot with your dad. I will just let him like pay for it… If he is in gaol, it’s okay. He’s just paying for what he did” referring to the arguments. Given her evidence that the Applicant was innocent, and the vindictive comments her mother apparently made, I find Ms R’s explanation for not going to the police implausible. Her evidence in general was unreliable.
[98] Transcript, pages 93 to 98.
I must make findings that are consistent with the convictions and findings of fact on sentence with respect to offending that gives rise to the decision-making power. With respect to the other offending, I would need strong reasons to depart from the convictions and factual findings on sentence,[99] and I do not consider there are any. I am satisfied that the Applicant committed the acts of domestic violence and verbal abuse that gave rise to convictions. Further, the contemporaneous police records of the allegations that did not result in charges seem reliable: the allegations are not inherently implausible, and they are consistent with the Applicant’s pattern of abusing and harassing his wife. I accept that the conduct alleged did occur.
[99] HZCP v Minister for immigration and Border Protection [2019] FCAFC 202.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle 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. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to 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.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that 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, are serious;
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)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);
(i)Where the non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act.
I am not confined to considering criminal behaviour that resulted in a finding of guilt. I am also required to consider serious conduct.[100]
[100] The meaning of “serious conduct” being found in Annex B of the Direction.
The Applicant has committed violent crimes against his wife, including headbutting her, jumping on her and putting his hands around her neck. He was also violent to one of her friends. This offending is very serious regardless of the sentence imposed. The Applicant engaged in violent conduct toward other persons: he attacked a friend in a street altercation, and he smashed a laptop. He has also engaged in physical aggression towards police officers in the performance of their duty, which is serious.
In addition to his violent offending, the Applicant attacked police property and urinated in a police car although the urination was not deliberate. In breach of protection orders, he went to his wife’s home, threatened to kill her, called her offensive names and made offensive accusations.
While the Applicant was initially treated with some leniency by courts, he was ultimately sentenced to multiple sentences of imprisonment and his immediate release on parole reflected the fact that he had already served significant time on remand. A custodial sentence is the last resort in the hierarchy of sentencing options available to courts, and in the Applicant’s case, the remarks of the learned Magistrate who sentenced him in 2019 indicate that the sentences imposed reflected the objective seriousness and the persistence of his offending.
The Applicant’s drink-driving offending was also serious. Not only did he drive drunk on three occasions, on one of those occasions, he deliberately drove his wife’s car to avoid the interlock device that was required to be on his because he knew he was intoxicated. His level of intoxication on two of those occasions was very high and it can only be concluded that he posed a very big risk of harm to other road users.
The Applicant’s offending was frequent: he committed some 24 criminal offences and three drink-driving offences between 2014 and 2019. The offending itself did not become more serious, having been relatively serious to begin with, however there is an aspect of seriousness in the fact that he continued to offend despite intervention orders and criminal sanctions imposed by the Courts.
The cumulative effect of the Applicant’s repeated domestic violence offending is that the Applicant’s wife was harassed and attacked over several years. The police reports indicate that she was frightened of the Applicant and did not want him around her. Much of this offending was committed in the family home while children were there. It appears that at least two of the children called the police or spoke to the police when they arrived. In relation to the other offending, police officers and other members of the community have had to deal with drunken, aggressive behaviour. The efforts of the criminal justice system in terms of protection orders, community-based programs and criminal sanctions have largely been ineffective. The Applicant’s offending as a whole demonstrates a serious lack of respect for the law and law enforcement.
I do not consider factors (g) to (i) of paragraph 13.1.1(1) of the Direction apply to the Applicant’s offending or circumstances.
The rest of the relevant sub-paragraphs of paragraph 13.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
·paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
·paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
Should the Applicant engage in further domestic violence offending, the harm includes physical and psychological harm to his estranged wife and psychological harm to his children if they are witnesses. Further violence against police officers and members of the public also potentially includes physical and psychological harm. The harm from drink-driving, especially high-range blood alcohol concentration, could result in serious injury or death to other road users.
Likelihood of engaging in further criminal or other serious conduct
I do not have any independent, expert evidence before me as to the risk that the Applicant will re-offend.
It is apparent that alcohol abuse contributed to much of his offending. Another contributing factor to the domestic violence offending is his keenly felt sense of grievance about his wife ending their relationship. He still manifests this sense of grievance, and there is no evidence before the Tribunal that has no engaged in any counselling to address that or that he has engaged in formal intervention with respect to his inappropriate consumption of alcohol.
In his revocation request, the Applicant said:
“Please give me a chance to reunite with my children so I can move forward in my live. I pray for forgiveness. And hope for a positive outcome.”[101]
and:
“I am separated from my wife who had affair with a family friend. I will stay away so will never reoffend & stay away from alcohol. My family is more important. I miss them all… I am willing to do course just need help with interpreter.”[102]
[101] Exhibit G1, Section 501G documents, G14, page 68.
[102] Exhibit G1, Section 501 G documents, G14, page 70.

The Applicant also said he was willing to do a domestic violence course. However, in the hearing he said his motivation was that he thought doing a domestic violence course might assist his application for his visa to be returned to him, and that he did not need to do a domestic violence course.[103] I find that, as he continues to deny all of the violent and verbally abusive conduct towards his wife, he lacks insight into his behaviour. Further, he lacks empathy for his main victim and fails to appreciate the adverse impact his offending potentially had on his children.
[103] Transcript, page 56.
The Applicant conceded that he had been addicted to alcohol.[104] However, he was adamant that he did not drink anymore and would never drink again.[105] I accept that the Applicant has not consumed alcohol since last entering into custody.
[104] Transcript, page 60, line 42 page 61, line 4.
[105] Transcript, page 59, lines 42 to 43
The Applicant acknowledged that when he was on parole in 2019, he only attended one alcohol counselling session and that he told the parole service that the counselling would not address his real issue of wanting to see his children. He acknowledged that he needs counselling but added that, in his mind, he felt that he would never drink again. When asked what he thought could help him with respect to alcohol he said:
“I know there is anyone else who can stop me from drinking alcohol, except doctors. I know in Australia I can have doctors who maybe give me some medication, maybe it will help me to stop alcohol”.
When asked if he had found any doctors to help him, he said not yet.[106]
[106] Transcript, page 63, line 30 to page 65, line 36.
The Applicant called three character witnesses to give evidence. They have all known him for several years through the Congolese community in Australia and all provided letters and oral evidence speaking positively of the Applicant.
Senior Pastor M said the Applicant had not shown any signs of being a violent man although at times he drank alcohol almost every day. He said on many occasions he would drink and dance for hours, he made people laugh and everyone liked him very much. He said the Applicant “did nothing because he was harmless”. He described the accusations as absurd and hard to believe.[107] Senior Pastor M is the pastor of the church the Applicant attended in Toowoomba. He was not aware that the Applicant had been convicted of domestic violence offences against his ex-wife.[108]
[107] Exhibit A4, Letter of Senior Pastor M dated 15 March 2021.
[108] Transcript, page 90, lines 16 to 29.
Mr N lives in Perth. He has known the Applicant for around 13 years and said he was committed to help and provide necessary support.[109] Mr N is aware that the Applicant had been imprisoned for domestic violence although he thought it might have been the result of a misunderstanding between him and his wife. He is also aware that the Applicant had some issues with drink-driving. He confirmed that despite the Applicant’s problems with alcohol and breaking the law, he is welcome to live with him and his family. He is a sole trader who works in furniture assembly and he has a contract with a furniture company which means work is busy. Mr N will give the Applicant a job and teach him “how to live” in Australia.[110]
[109] Exhibit A1, Letter of Mr N dated 27 January 2021.
[110] Transcript, page 100.
Mr F has known the Applicant since 2010 when they both arrived in Australia as refugees. He vouched for the Applicant having done voluntary work in the Congolese community and participating in community activities including assisting new refugees to settle into Australia and organising events for youth.[111] Mr F was the leader of the Congolese community in Toowoomba and currently lives in Sydney. He did not seem to be aware of the Applicant’s offending, but he did know the Applicant spent time in gaol.[112]
[111] Exhibit A3, Letter of Mr F dated 15 March 2021.
[112] Transcript, pages 102 to 104.
While these witnesses all appeared to have good intentions, Mr F had little or no knowledge of the Applicant’s offending, and Senior Pastor M had no knowledge of the offending and did not recognise that the Applicant’s relationship with alcohol was a problem. I am not confident that either would influence the Applicant to manage his alcohol consumption and his behaviour. Mr N was aware of the Applicant’s offending although he seemed to minimise it.
The Applicant said that if he gets his visa back, he will initially live with Mr N before returning to be near his children. I consider that, if the Applicant were committed to abstaining from alcohol and obeying the law, it would help him to have stable accommodation and employment. However, he lacks insight into his problems, and I am not confident that he would engage in counselling to address the break-up of his marriage, domestic violence counselling or alcohol counselling if he were returned to the wider community. Being in Perth would keep the Applicant away from his wife, however she was not his only victim and he intends to eventually return to Brisbane.
I consider there to be at least a moderate risk that the Applicant will commit further offences of the kind that he has committed.
Conclusion: Primary Consideration A
Primary Consideration A weighs heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·     the nature and duration of the relationship between the child and the person, noting that less weight should generally be given where there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
·     the extent to which the person is likely to play a positive parental role in the future, taking into account the time until the child turns 18, and including any Court order relating to parental access and care arrangements;
·     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;
·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizens ability to maintain contact in other ways;
·     evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect;
·     whether there are other persons who already fulfil a parental role in relation to the child; and
·     any known views of the child.
The Applicant has four children under the age of 18: Child D aged 16, Child C who is 14, Child B who is 10 and Child A who is seven.[113]
[113] Transcript, page 67.
In his revocation request the Applicant said:
“I was an active father in my children’s life before the DVO was taken out. We were a family and I was their father. I was dropping picking them up from school and social events. Played the role as a loving father should with his children. I was a member of our church and took them each week to church as well as teaching them how to sing. 8 children in Australia. Refugee in Australia 2010 2 children born Australia. If my Visa is cancelled I will not be able to a father to my children. Will not be able to support them financially as I want them to have a positive future and is to be thera for them. I have always worked whilst in Australia.” [114]

(errors in original)
and:
“I have regular contact with my oldest daughter who corresponds through my other children. Due to the domestic violence order I cannot contact my other children which has put a lot more stress on me. I am willing to do domestic violence courses only I find it hard as I’m still learning English. Only way I can contact my children is by being released. I hope this information helps as I am seeking legal advice in regards to my children.”[115]
and:
“All my children are suffering not having me present I cannot be a father to them over the phone. They have become sad & depressed without me”.[116]
[114] Exhibit G1, Section 501G documents, G13, page 60.
[115] Ibid, G14, page 68.
[116] Exhibit G1, Section 501G documents, G14, page 68.
In the hearing, the Applicant agreed that he has not provided financial support for his children since he stopped working in 2016, although he said that if he has some money, he buys drinks for them. An IHMS file note, dated 9 October 2020, notes that the Applicant said he had saved some money from working in prison and transferred $400 to his daughter for his children.[117]
[117] Exhibit A2, Letter of Ms R, dated 17 February 2021.
The Applicant conceded that since 2016 the Protection Orders have prevented him from contacting his minor children.[118] He also conceded that he has not spoken with those children since 2016 and that under the conditions of the current Protection Order he is not allowed to make contact with them until March next year.[119] This lengthy break in the Applicant’s relationship with his children is entirely the result of his persistent domestic violence offending.
[118] Transcript, page 68, lines 29 to 45.
[119] Transcript, page 69, lines 1 to 18. Also see Exhibit R2, Respondent’s Tender Bundle pages 83 to 84.
The Applicant said that Ms R told him that Child C is upset that he cannot see the Applicant and he has started skipping school and asking when the Applicant will be back.[120]
[120] Transcript, page 69, line 42 to page 70, line 11.
I accept that the Applicant was an involved parent to these children from their respective births until May 2016, and that he wants to again be involved in their lives. While there is no direct evidence that his offending against his wife, and drunken behaviour, in the family home had a negative impact on the children, it can reasonably be inferred that the children would have found it unsettling at the very least. It appears that the Applicant began to engage in this conduct since 2013 at the latest.
While there is no evidence except for the Applicant’s that the children are sad and depressed without him, I am prepared to accept that Child C is acting out because he misses the Applicant and that the other three children probably miss him to a degree.
The Applicant will not be able to have contact with the children straight away if he is returned to the community. If he continues to offend against his wife, a fresh order may well be made preventing contact with the minor children. His ability to be part of their lives is contingent on whether he re-offends against his wife. Whether any contact he has with them will be positive somewhat depends on whether he manages his problem with alcohol and his bitterness over the break-up of his marriage and gets his life together. There is some potential for the Applicant to contribute positively to these children’s lives if his visa is returned to him.
Conclusion: Primary Consideration B
The best interests of each of the Applicant’s four minor children combined weighs to a limited extent in favour of revocation.
PRIMARY CONSIDERATION C – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Moreover, I should proceed on the basis that the Australian community expects that the Australian government can and should cancel a person’s visa if they commit serious crimes. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. I must have due regard to the Government’s views in this respect and any overarching principles in the Direction.
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of the community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Government’s views in relation to community expectations are to be found in the Direction.[121]
[121] Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
This approach was confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
Paragraph 6.2(1) of the Direction states 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. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.”
Those principles, set out in paragraph 6.3 of the Direction, 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)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa;
(5)Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizens Visa should be cancelled, or their visa application refused.
Analysis – Allocation of Weight to this Primary Consideration C
Accordingly, in assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following matters:
·the Applicant moved to Australia when he was 39 years old. The Applicant is now 50 years old;
·the Applicant commenced engaging in criminal or other serious conduct three years after arriving in Australia;
·the Applicant’s offences can be categorised as serious as they include domestic violence, violence against police in the performance of their duties, repeated breaches of protection orders and high range drink-driving;
·there is at least a moderate risk that he will re-offend;
·his repeated offending despite court orders and criminal sanctions demonstrates a disregard for the laws regulating the community that he seeks to re-enter;
·he was employed for around six years and he has done some voluntary work in the Congolese community in Australia (see below in Other Considerations;
·before coming to Australia he had suffered severe emotional hardship with the kidnap and torture of his wife, the murder of a brother, the death of a child, and the loss (suspected abduction) of another child; and
·if he is removed to Congo, it will adversely affect his minor children as I have already found, and his other children (addressed in Other Considerations).
Conclusion: Primary Consideration C
The Applicant has breached the trust of the Australian community. The nature of the Applicant’s offending is such that the Australian community would expect that he should not hold a visa. Considering all relevant factors, Primary Consideration C weighs moderately in favour of non-revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
Paragraph 14.1 of the Direction relevantly provides:
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
This is not an Application for a protection visa, and I am not required to carry out the same level of analysis as would be expected in the assessment of a Protection visa application. However, I must give meaningful consideration to clearly articulated claims of harm or hardship made by the Applicant, including those claims, which if made out, would result in Australia owing non-refoulement obligations in respect of the Applicant. In other words, I must assess the risk of harm and/or hardship that the Applicant claims he will face if removed to Congo in their own right, and that assessment will also inform my assessment of whether the Applicant is someone to whom Australia owes non-refoulement obligations. A risk of harm or hardship that is not clearly articulated but arises on the evidence also warrants consideration.[122] Some claims of harm or hardship might be more relevant to the extent of impediments the Applicant would face if removed to Congo. The Applicant has made some claims that warrant consideration. In accordance with paragraph 14.1(1) of the Direction, I will assess those claims against the tests enunciated in the Act. Section 36 of the Act relevantly provides that:
[122] See Minister for Home Affairs v Omar[2019] FCAFC 188.
(1A) An applicant for a protection visa must satisfy:
(a) …
       (b) at least one of the criteria in subsection (2).
       …
(2)    A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;..
…
(2A) A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
            (b) the death penalty will be carried out on the non-citizen; or
            (c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
…
(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

Section 5H(1)(a) of the Act relevantly provides that a person is a refugee if he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country.
Section 5J of the Act provides that a “well-founded fear of persecution” involves a number of components which include that:
·the person fears persecution for the reason/s of race, religion, nationality, membership of a particular social group or political opinion;
·the reason/s must be the essential or significant reason/s for the persecution;
·there is a real chance that the person would be persecuted;
·the real chance of persecution relates to all areas of the receiving country;
·the persecution involves serious harm and systematic and discriminatory conduct;
·the person does not have a well-founded fear of persecution if effective protection measures are available to the person; and
·the person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour, other than certain types of modification.
The Applicant was granted a Refugee visa in 2009, on the basis of a well-founded fear of persecution due to imputed political opinion, being that of his wife who had been accused of selling medicine to rebels.
The fact that a person has been found to be owed protection in the past does not mean they will always have that status. As the High Court[123] stated in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004[124] in relation to the Refugee Convention:
“…the circumstances from time to time and not merely as a matter of history are the relevant circumstances, that is, that the "status", as the Convention has it, of a person permitted to reside in an asylum country may change as circumstances in the country which he has left change.”
[123] Gummow ACJ, Callinan, Heydon and Crennan JJ; Kirby J dissenting, at [74].
[124] (2006) 231 CLR 1 [2006] HCA 53 at [43].
The Applicant would not be returning to Congo with his wife and he is now estranged from her. He does not claim that he would be harmed in Congo because of his previous link to her and I am not satisfied that there is a real chance or real risk[125] that he would be.
[125] “Real chance” and “real risk” having the same meaning in the context of protection claims.
The Applicant claimed that if he is forced to return to Congo the “rebels” would likely kill him. He said, “All my families and friends were killed by the Rebel”.[126]
[126] Exhibit G1, Section 501 G documents, G18, page 80.
The Applicant is from Goma. He said he would be killed because he was of the Nande tribe. When asked why, he said because his father was a rich man with a big farm and the rebels would think he was returning to regain the family’s land that the rebels now occupy. When asked why the rebels would care if he returned for his land, he gave an incomprehensible answer, and when asked if he would actually claim his land, he said he did not know. When asked if there was any other reason, he feared harm in Congo he said that “they” are aware that he has a wife and children and they would ask him where they are and kill him. When asked who “they” were he said “the Congolese are killing each other. They will kill me” [127] When asked the relevance of Congolese people knowing he had a wife and children, he simply reiterated that he would be killed because of that. When asked who would know he had a wife and children, he said the people who were occupying the land before.[128] None of the Applicant’s evidence on this issue made sense and none of the country information before me supports his claims. I reject them.
[127] Transcript, pages 82 to 83.
[128] Transcript, page 84, lines 1 to 25.
When the Applicant was asked if there was any reason he could not move away from Goma, he said there is a problem everywhere. When asked if he could not live in the capital, Kinshasa, he said there were tribal problems everywhere in Congo. When it was put to him that the rebels who took over his family’s land are in Goma, and asked why they would be a threat in other places, the Applicant said they are everywhere in Congo and they have occupied other people’s lands everywhere. When asked why they would target him outside Goma he said his father was a rich man and they are known in Congo. When asked if he was saying that he was known throughout all of Congo he said “Maybe they may not know me, but I’m a person who can - I am known by many people who want to kill me will know me.”[129] The Applicant’s evidence on this issue was implausible, and unsupported by the country information before me, and I reject it.
[129] Transcript, page 84, line 30 to page 85, line 45.
There Applicant did not put forward any reason why he could not live away from Goma, for example in Kinshasa. While the country information indicates that the security situation throughout Congo is unstable and crime rates are high,[130] it does not appear that the Applicant would be especially at risk of harm.
[130] Exhibit R2, Respondent’s Tender Bundle, TB11.
I am not satisfied that there is a real chance that the Applicant will be harmed in Congo because of his tribe, his family or for any other reason that is personal to him or that he would face a risk of harm that is not one that is faced by the general population. I am not satisfied that the Applicant engages Australia’s non-refoulement obligations for any reason put forward by him or that arises on the evidence. I do, however, accept that the security situation and crime rate in Congo are worse than in Australia so living in Congo is generally more dangerous than living in Australia and the Applicant would face a low risk of societal harm or crime in Congo.
The Applicant has not applied for or been the holder of a Protection visa (the Refugee (Subclass 200) visa he held is not a Protection visa as defined by section 35A of the Act), so it is open to him to make an application for a Protection visa if I do not revoke the cancellation of his visa.
The Applicant did not point to any matter that could result in him being detained for a prolonged or indeterminate period but appealing an adverse decision or applying for a Protection visa would necessarily prolong his detention. He did not claim any particular hardship arising from being in detention.
This Other Consideration weighs to a limited extent in favour of revocation.
(b) Strength, nature and duration of ties
The Applicant came to Australia at the age of 39 and has lived in Australia for 11 years. He commenced offending three years after arriving in Australia and therefore is entitled to very limited weight under paragraph 14.2(1)(a) of the Direction.
The Applicant was employed for around six years until 2016. He has performed some voluntary community activities in the Congolese community including driving people to look for work, helping new refugees from Congo, helping with youth sport, and helping elders of the community.[131] His employment and voluntary work afford him moderate weight under paragraph 14.2(1)(a)(ii) of the Direction.
[131] Transcript, page 75.
The Applicant has four children who are not minors. He said he communicates with Ms E aged 18 twice per week, and with Mr F aged 23 and Ms R aged 27 every day.[132] He said Mr G who is aged 25 “doesn’t pick up the phone. Often he doesn’t pick up the phone”. He said the reason only one of his children provided any letters of support is that he asked Ms R, the eldest, to speak on behalf of the others.[133] Ms R said all four adult siblings call the Applicant. While I find that Ms R was not a reliable witness, it has raised a doubt in my mind about whether Mr G deliberately avoids contact with the Applicant or whether there could be another reason why he often does not pick up the phone such as being busy. I am not satisfied that the Applicant is estranged from Mr G.
[132] Transcript, pages 70 to 71.
[133] Transcript, pages 72.
Given her efforts to help the Applicant get his visa back, I am satisfied that Ms R is very keen for him to remain in Australia. Further, she said “Dad is the only family we’ve got. I’m getting low blood pressure is every day because I’m stressful.”[134]
[134] Exhibit A2, Letter of Ms R dated 17 February 2021.
It can reasonably be concluded that the Applicant’s other adult children would be saddened if he were deported. I have found that non-revocation is against the best interests of the Applicant’s minor children.
It appears that the Applicant has some social ties to the Australian community though his church and ethnic community and is well liked by some members of those communities.
The Applicant’s social and familial ties, including the impact on his children of his removal from Australia, weigh moderately in his favour under paragraph 14.2(1)(b) of the Direction.
Overall, I am satisfied that the strength, duration and nature of ties to the Australian community weighs moderately in favour of revocation.
(c) Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on any Australian business interests. This consideration is not relevant to the determination of this application.
(d) Impact on victims
This Other Consideration (d) requires a decision-maker to assess the impact of a non-revocation decision (i.e. where the Applicant does not get his visa restored to him) upon, inter alia, the Applicant’s victim(s). There is no evidence from the Applicant’s wife, being his primary victim, about the impact that the Applicant’s continued presence in Australia would have on her. This Other Consideration (d), is therefore neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is a 50 year old man who is able bodied and does not claim to have any medical conditions. He does not have any diagnosed mental health or psychological conditions.
The Applicant lived in Congo until 2006 and he speaks French, Lingala and Swahili. I am not satisfied that he would face any substantial language or cultural barriers in Congo.
Electronic records dated in 2008 and 2009 from the Department of Immigration and Citizenship (as it was then known) indicate that the Applicant had disclosed the existence of a mother and brother in Congo, both of whom he said he had last seen in 2006.[135] However, in his revocation request and his statement to the Tribunal, he said he had no family left in Congo. When asked about his mother and brother he said they were dead. He did not know when his mother passed away, and said he found out she had died from his daughter.[136]
[135] Exhibit R2, Respondent’s Tender Bundle, TB9, page 419.
[136] Transcript, page 77, lines 25 to 45.
When the Applicant was asked about his brother, he said he was killed by bad people when he left Uganda. He was asked if he had told anyone in Uganda that his brother was still alive, to which he replied that he did not know. He was asked if he remembered being interviewed when he was in Uganda about being a refugee, and he said yes. He was asked if his brother was still alive at that time and he said yes and that everyone escaped. He was asked if his brother escaped and became a refugee, to which he said “There was a war and everyone escaped. I don’t know if he still alive. Everyone dead”. When he was asked “So you don’t know if your brother is dead or alive?” The Applicant said “He’s dead. He is no longer alive.” When asked why he thought his brother was dead, the Applicant said because he does not have any communication with him. When asked if he had any communication with his mother before she died, he said he had not.[137] I conclude from the Applicant’s evidence that he does not know whether or not his brother is alive, and that he asserted that he was dead to assist his application. I am satisfied that the Applicant might have a living brother in Congo.
[137] Transcript, pages 78 to 80.
I accept that the standard of living in Congo is lower than in Australia and the Applicant will likely find it difficult to support himself. He will not have the same access to economic, medical and social support services. Apart from the possible help of a brother he will not have family or social support, although I see no reason why he could not join a church or other community group through which he could find support and form social ties.
It is likely that the Applicant will face significant difficulty in re-establishing himself in Congo, but I am not satisfied these difficulties would prevent him from successfully re-settling there.
This Other Consideration (e) weighs moderately in favour of revocation.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: weighs to a limited extent in favour of revocation;
(b)strength nature and duration of ties: weighs moderately in favour of revocation;
(c)impact on Australian business interests: not relevant;
(d)impact on victims: neutral; and
(e)extent of impediments if removed: weighs moderately in favour of revocation.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision, I find as follows:
·Primary Consideration A weighs heavily in favour of non-revocation;
·Primary Consideration B weighs to a limited extent in favour of revocation;
·Primary Consideration C weighs moderately in favour of non-revocation; and
·To the extent that Other Considerations (a), (b) and (e) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations A and C.
Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 177 (one hundred and seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

..........................[SGD]..............................................
Associate
Dated: 20 May 2021

Date of hearing: 24 and 25 March 2021

Applicant:

By video conference

Solicitor for the Respondent
Ms Katherine Whittemore

Sparke Helmore Lawyers

ANNEXURE A - EXHIBIT LIST

EXHIBIT No

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (G1 to G19 pages 1 to 118)

R

-

15 FEB 2021

A1

Letter of Mr N

A

27 JAN 2021

3 MARCH 2021

A2

Letter of Ms R

A

17 FEB 2021

17 FEB 2021

A3

Letter of Mr F

A

15 MARCH 21

15 MARCH 2021

A4

Letter of Senior Pastor M with accompanying video footage of church congregation

A

15 MARCH 2021

16 MARCH 2021

A5

Applicant’s Clinical Records -International Health and Medical Services

A

11 MARCH 21

3 MARCH 2021

A6

Statement of the Applicant

A

19 MARCH 2021

23 MARCH 2021

A7

Articles lodged on 23 March 2021 regarding the Democratic Republic of the Congo:

·     Human Rights Watch: World Report 2021: Democratic Republic of Congo

·     UNCHR: UNCHR Position on Returns to North Kivu, South Kivu, Ituri, and Adjacent Areas in the Democratic Republic of Congo Affected by Ongoing Conflict – Update II

·     The Conversation: “Violence is endemic in eastern Congo: what drives it” dated 26 February 2021

A

-

23 MARCH 2021

R1

Respondent’s Statement of Facts, Issues and Contentions (19 pages)

R

16 MARCH 2021

16 MARCH 2021

R2

Respondent’s Tender Bundle (TB1 to TB14 pages 1 to 509)

R

-

16 MARCH 2021

[2021] AATA 1424

14 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

EXHIBIT No	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G19 pages 1 to 118)	R	-	15 FEB 2021
A1	Letter of Mr N	A	27 JAN 2021	3 MARCH 2021
A2	Letter of Ms R	A	17 FEB 2021	17 FEB 2021
A3	Letter of Mr F	A	15 MARCH 21	15 MARCH 2021
A4	Letter of Senior Pastor M with accompanying video footage of church congregation	A	15 MARCH 2021	16 MARCH 2021
A5	Applicant’s Clinical Records -International Health and Medical Services	A	11 MARCH 21	3 MARCH 2021
A6	Statement of the Applicant	A	19 MARCH 2021	23 MARCH 2021
A7	Articles lodged on 23 March 2021 regarding the Democratic Republic of the Congo: · Human Rights Watch: World Report 2021: Democratic Republic of Congo · UNCHR: UNCHR Position on Returns to North Kivu, South Kivu, Ituri, and Adjacent Areas in the Democratic Republic of Congo Affected by Ongoing Conflict – Update II · The Conversation: “Violence is endemic in eastern Congo: what drives it” dated 26 February 2021	A	-	23 MARCH 2021
R1	Respondent’s Statement of Facts, Issues and Contentions (19 pages)	R	16 MARCH 2021	16 MARCH 2021
R2	Respondent’s Tender Bundle (TB1 to TB14 pages 1 to 509)	R	-	16 MARCH 2021