BMKL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 3636

BMKL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3636 (12 October 2021)
Division:GENERAL DIVISION
File Number: 2021/5037
Re:BMKL
APPLICANT

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

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:12 October 2021
Place:Melbourne

The Tribunal affirms the decision under review.
.......................[sgd].................................................
Senior Member A. Nikolic AM CSC
MIGRATION – Mandatory visa cancellation – citizen of Myanmar – Class XB Subclass 200 Refugee (Permanent) Visa – failure to pass good character test – sexual and violent offending – offending involving children – whether another reason why the mandatory visa cancellation should be revoked – non-refoulement obligations – fear of persecution –Myanmar coup d’état – Ministerial Direction No. 90 applied – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Crimes Act 1958 (Vic)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Sentencing Act 1991 (Vic)
CASES
Ali v Minister for Home Affairs [2020] 278 FCR 627
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
DOB18 v Minister for Home Affairs [2018] FCA 1523
DQM18 v Minister for Home Affairs (2020) 278 FCR 529
Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333
FYBR v Minister for Home Affairs [2020] HCATrans 056
FYBR v Minister for Home Affairs (2019) 272 FCR 454
GLD18 v Minister for Home Affairs [2020] FCAFC 2
HVLC v Minister for Home Affairs [2019] FCA 616
HZCP v Minister for Immigration and Border Protection (2018) 78 AAR 325
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Maxwell v R (1996) 184 CLR 501
Minister for Home Affairs vOmar (2019) 272 FCR 589
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
O’Keefe v Calwell (1949) 77 CLR 261
Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219
Sowa v Minister for Home Affairs (2019) 369 ALR 389
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Thornton v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs [2020] FCA 1500
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
YKSB v Minister for Home Affairs [2020] FCAFC 224
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Direction No 75 – Refusal of Protection visas Relying on Section 36(1C) and Section 36(2C)(b)
Department of Foreign Affairs and Trade, DFAT Country Information Report Myanmar, Report (18 April 2019)
Department of Home Affairs, Situational Update Myanmar, Report (31 August 2021)
Sentencing Advisory Council, ‘Imprisonment,” < FOR DECISION
Senior Member A. Nikolic AM CSC
12 October 2021
INTRODUCTION

The Applicant is a 29-year-old citizen of Myanmar who seeks review of a decision by a delegate of the Respondent not to revoke the mandatory cancellation of his Class XB (Subclass 200) Refugee (Permanent) visa (the visa).
The hearing was held in Melbourne on 28, 29 and 30 September 2021 by video in accordance with the Tribunal’s COVID-19 Special Measures Practice Direction. The Applicant previously received legal assistance from the Refugee & Immigration Legal Centre (RILC) with written submissions and statement preparation,[1] but was self-represented at the hearing. The Minister was represented by Mr Barrington of counsel, instructed by Mills Oakley.
[1] Exhibit R1, 74.
Under s 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (AATA), the Tribunal can make orders for non-publication or non-disclosure of information. The Tribunal considers it appropriate to do so given the specific circumstances of this case, which encompass offending against women and children, sensitive medical information, and accepted non-refoulement claims. The anonym BMKL is applied to the Applicant’s identity. Any information tending to reveal his identity, or that of his victims or family members, is not to be published or disclosed.
For the following reasons the Tribunal affirms the decision under review.
BACKGROUND
The Applicant is an unmarried 29-year-old citizen of Myanmar and a Christian of Chin ethnicity.[2] He worked in Myanmar as a farmer[3] before fleeing to Malaysia in 2008.[4] He arrived in Australia in early 2014[5] and has not departed since.
[2] Ibid, 55; 59; 75; 103; 132.
[3] Ibid, 139.
[4] Ibid, 142.
[5] Ibid, 147.
The Applicant committed his first offence in Australia in 2015 and has since been convicted of approximately 40 crimes. This includes offences against women, children, and police. In April 2017 he was placed on the Sex Offender’s Register for a period of eight years after being convicted of stalking and indecent assault of a man he encountered in a park.[6] He was convicted and imprisoned for those and other offences. In August 2018 the Applicant was convicted of Child stealing with intent and other sexual, violent, and conditional liberty offences. He was awarded a total effective sentence of 30 months’ imprisonment with a non-parole period of 18 months.[7]
[6] Ibid, 49.
[7] Ibid, 42 [22].
On 8 March 2019, while serving a sentence of imprisonment on a full-time basis,[8] the Applicant’s visa was mandatorily cancelled by a delegate of the Respondent under s 501(3A) of the Migration Act 1958 (the Act).[9] In April 2020 he made representations seeking to have this decision revoked.[10]
[8] Ibid, 148.
[9] Ibid, 60; 149.
[10] Ibid 74.
The Applicant was denied parole in May 2020 and served his full sentence.[11] He entered immigration detention in October 2020 where he presently remains.[12]
[11] Ibid, 146.
[12] Ibid, 123.
On 22 July 2021, a delegate of the Respondent declined to revoke the cancellation decision and advised the Applicant of this on the same day.[13] On 26 July 2021, the Applicant asked the Tribunal to review the non-revocation decision.[14]
[13] Ibid, 8–10.
[14] Ibid, 5.
Pursuant to s 500(6L) of the Act, the Tribunal must make a decision on this application within 84 days of the Applicant being notified of the non-revocation decision in accordance with s 501G(1). There is no dispute the Applicant was properly notified on 22 July 2021. The 84^th day in this matter is 14 October 2021; nine working days after the hearing.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction to review non-revocation decisions.
Section 501(3A) of the Act is a mandatory cancellation provision. When read in conjunction with ss 501(6) and 501(7) of the Act, it obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act, which states inter alia:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or …
Section 501(7) of the Act sets out six grounds on which a person is taken to have a substantial criminal record, including if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).
Under s 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and to invite the affected person to make representations about revocation. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act provides a discretion that the Minister may revoke a mandatory cancellation decision in certain circumstances, namely if the person whose visa was cancelled makes representations in accordance with the invitation, and the Minister is satisfied the person passes the character test, or there is another reason why the original decision should be revoked.
Direction 90
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. The Direction must be applied by all decision-makers (except for the Minister acting personally), such as Ministerial delegates and the Tribunal.[15] On 8 March 2021, the Minister signed Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction). The Tribunal is bound to apply the Direction.
[15] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).
Clause 5.2 of the Direction provides a framework of five principles within which decision-makers are to approach their decision-making:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision-maker must consider cls 8 and 9, where relevant to the decision:
(a)Clause 8 of the Direction identifies the following primary considerations, for which further detail is set out at sub-cls 8.1 to 8.4:
(i)Protection of the Australian community from criminal or other serious conduct;
(ii)Whether the conduct engaged in constituted family violence;
(iii)The best interests of minor children in Australia;
(iv)Expectations of the Australian community.
(b)Clause 9 of the Direction identifies the following non-exhaustive list of other considerations that must be taken into account where relevant, the content of which is further detailed in sub-cls 9.1 to 9.4:
(i)International non-refoulement obligations;
(ii)Extent of impediments if removed;
(iii)Impact on victims;
(iv)Links to the Australian community, including:
a.Strength, nature and duration of ties to Australia; and
b.Impact on Australian business interests.
In relation to how these considerations are to be applied:
(a)Clause 7(1) of the Direction provides that ‘information and evidence from independent and authoritative sources should be given appropriate weight’;
(b)Clause 7(2) states that ‘Primary considerations should generally be given greater weight than the other considerations.’ That does not preclude the Tribunal, however, based on the specific circumstances of each case, giving an ‘other’ consideration the equivalent or greater weight than a primary consideration.[16]
(c)Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57]:
… the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
[16] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Applicant’s failure of the character test arises as a matter of law.[17] By virtue of his convictions on 24 August 2018, which include a sentence of imprisonment exceeding the threshold statutory period of 12 months, he does not pass the character test. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the visa cancellation.
[17] Thornton v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs [2020] FCA 1500.
ISSUE TO BE RESOLVED
It remains to be determined under s 501CA(4)(b)(ii) of the Act if there is ‘another reason’ why the cancellation decision should be revoked. In Viane v Minister for Immigration and Border Protection[18] the Federal Court reflected on this task as follows:
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
EVIDENCE
[18] (2018) 162 ALD 13, [64] (Colvin J).
Documents
The documents taken into evidence at the hearing were:
(a)G-documents provided by the Respondent numbering 176 pages;[19]
(b)Supplementary G-documents provided by the Respondent numbering 720 pages;[20]
(c)Four-page statement of the Applicant dated 21 September 2021;[21]
(d)Three-page statement of the Applicant’s brother dated 22 September 2021;[22] and
(e)Ten-page document titled ‘Situational Update Myanmar’ dated 31 August 2021 from the Department of Home Affairs.[23]
[19] Exhibit R1.
[20] Exhibit R2.
[21] Exhibit A1.
[22] Exhibit A2.
[23] Exhibit T1.
Applicant’s evidence
The Applicant gave oral evidence at the hearing assisted by an interpreter in the Hakha Chin language. He adopted his statement dated 21 September 2021 as true and correct. On several occasions during the hearing, when questioning turned to possible offences or pending charges, the Tribunal advised the Applicant about his right to silence and privilege against self-incrimination, which the Applicant confirmed he understood.
Background and family in Australia and Myanmar
The Applicant said he did not attend school in Myanmar and worked on his parents’ farm. Later in his evidence when questioned about his ability to read, write, and use social media, the Applicant explained he attended ‘Sunday School.’
The Applicant said the Myanmar military used him as a porter to carry equipment at the age of 12. He claimed that when unable to move at the required speed, one of the soldiers hit him with a rifle then pointed it at his head. He said this was the catalyst for him immediately fleeing Myanmar alone. When asked whether he fled at the age of 12 or was older, the Applicant said he was unsure about his age, but insisted he fled immediately after the rifle incident, which he said was in 2008, following which he travelled to Malaysia by a combination of walking, boat, and car. The Tribunal notes that based on the Applicant’s date of birth, he was 16 years old when he left Myanmar.
The Applicant previously claimed he and his two younger siblings fled Myanmar together in 2008,[24] but during his oral evidence said this was a mistake made by the RILC employee who took his statement. He claimed to have told this person it was a mistake but she ‘probably forgot’. The Applicant was asked about references in evidence to his mother being alive but insisted he had not heard from or spoken to her since departing Myanmar in 2008. He said: ‘She may have been targeted and may be dead already,’ and he had ‘stopped searching’ for her on this basis. He confirmed in oral evidence that he does not have any family in Myanmar.[25] The Applicant was asked about the reference in his statement to his parents contacting him in 2009 while he was living in Malaysia.[26] He claimed this was also a mistake by the RILC employee. The Applicant said he was told by another friend in 2010 that his father had died ‘due to liver problems’, which came as a great shock. He remains unsure if his mother is still alive.[27] The Applicant said his younger brother subsequently fled Myanmar in 2010. They lived together in Malaysia until 2014 then travelled to Australia after their refugee visas were granted. The Applicant said his sister continues to live and work in Malaysia, but he could not remember when he last spoke to her.
[24] Exhibit R1, 103 [2].
[25] Ibid, 75.
[26] Ibid, 105 [18].
[27] Ibid, 103.
After arriving in Australia, the Applicant said he lived with a woman called ‘aunty’ for a time, who came from the same area as his family in Myanmar, but who was not a relative. He worked at a timber factory for about two or three years, which is his only employment in Australia. The Applicant said he lived predominantly with his brother and sister-in-law in Australia, but there were times when his alcohol abuse caused conflict and resulted in him living elsewhere. The Applicant said he nevertheless remains very close to his brother and his brother’s two children, who he regularly speaks to by telephone, usually on weekends. When asked how old the children are, the Applicant said he was unsure. He last saw the older child prior to going to prison in 2018 but is yet to meet the youngest child who was born while he was imprisoned.
Addictions and offending

The Applicant links his experiences in Myanmar to mental health issues, alcoholism, and offending in Australia.[28] He spoke about consuming whiskey with friends at the age of 10. While living in Malaysia he said an alcoholic employer encouraged him to drink heavily, and his own alcoholism originated from that association. The Applicant said his tolerance for alcohol became much higher over time and he routinely drank to the point of blackout with no memory of what occurred. He referred to a motorcycle accident while intoxicated in Malaysia, multiple arrests, and a three-month period of imprisonment because he was caught working without a passport. He claimed his employer paid fines and bailed him out on several occasions.
[28] Exhibit A1, 1 [ 5].
The Applicant said he developed a gambling addiction while living in Malaysia, which persisted after his arrival in Australia. He did not previously disclose his gambling problems during counselling and has not received any treatment for this. The Applicant said most of the money he made from limited work in Australia was quickly spent on alcohol and gambling. He recalled gambling mostly on weekends and losing up to $2,000 at a sitting.
The Applicant said he tried to abstain from alcohol in the past but found it hard to do so because he would ‘start shaking and trembling’ after not drinking for a day. He persistently relapsed, including while in immigration detention in December 2020, when he became intoxicated on illicitly produced ‘orange wine’. He said other detainees provided the alcohol and he could not resist partaking. He initially claimed to be unaware it was alcohol, believing it was fruit juice. When challenged that this was implausible, the Applicant conceded he was aware it was alcohol but consumed more. He agreed his intoxication on this occasion led to aggression against others.
The Applicant was taken through his offending since June 2015 by Mr Barrington. It was a noteworthy feature of his evidence that he was unable to recall virtually any details of his offending, claiming to have been so heavily intoxicated on every occasion that he only learned later what he had done from friends or the police. For example, he claimed to be unable to recall three occasions when police were forced to use a riot control agent (OC Foam) to subdue and arrest him. Notwithstanding his persistent inability to recall, the Applicant cavilled about the details of some offences and denied others as follows:
(a)He denied using a knife in relation to Commit sexual offence armed with weapon in 2017, claiming he never carried a knife and could not believe the nature of his offending because he was not sexually attracted to men. He said if he did possess a weapon during this offending it was more likely a beer bottle rather than a knife. He could not recall pleading guilty to this offence, claiming the first time he heard these facts was during the present hearing. When asked if he remembered being sentenced, the Applicant responded: ‘No I don’t remember – I’ve forgotten about it.’ After further questions, the Applicant accepted he pleaded guilty to this offence;
(b)The Applicant tried to impugn his conviction for Sexual assault against a young female employee in a shopping centre, claiming his friend told him she made a slur about ‘Asian people drinking too much’, which caused the Applicant to get angry and push her in the chest, rather than touch her breasts as stated in the evidence;
(c)The Applicant tried to impugn his conviction for Child stealing with intent, despite having pleaded guilty to and being convicted of this offence. He said that while walking to a shop to get more alcohol, he noticed a child was in his path. He claimed to have only removed the child to avoid contact as he passed. When challenged about the inconsistency between this version of events and the facts he pleaded guilty to, the Applicant claimed to have no memory of removing an infant child from a coin-operated ride and walking away with her. The Applicant also claimed police ‘assumed the worst straight away’ because of his criminal record and that an interpreter at the police station ‘interpreted [his] words very harshly’.
At one point in his evidence the Applicant complained about being placed on the Sex Offender’s Register, because he had ‘not raped anyone’ and found this embarrassing and ‘quite harmful for [his] reputation’. He had subsequently found it difficult to engage with his family and ethnic community because of his status as a registered sex offender.
Rehabilitation and risk
The Applicant accepted he is unable to control his behaviour when drinking and was likely to commit further criminal offences if he became intoxicated. He said that he has not undertaken any alcohol counselling or rehabilitation in prison or immigration detention ‘because of the language barrier.’ He stated: ‘I don’t really know English that well, I don’t think there’s any counselling – could be I’m not sure.’ The Applicant claimed to have overcome his alcoholism without professional help but accepted that expert assistance ‘would be even better’.
The Applicant agreed he was given several past opportunities for offence-specific rehabilitation but did not take these seriously. He recalled first seeking assistance in early 2016 from the Migrant Information Centre, who referred him for counselling with the Turning Point Alcohol and Drug Centre. Despite voluntarily requesting this assistance, the Applicant said he was not entirely truthful with the counsellor and ‘didn’t approach counselling with the right mindset or follow their advice’. The Applicant said he ‘kept drinking and getting into trouble’. He could not recall any of the details of the counselling sessions he undertook and agreed that he missed appointments:
Sometimes I’d attend sessions not completely sober, some of things I said I could not follow through... I didn’t take it seriously and wasn’t serious about making changes…I wasn’t in the right headspace – I regret it a lot…But if I had the chance again I would do it properly.
The Applicant said his brother encouraged him to take the counselling seriously, but he failed to do so, which he now regretted. After being released from prison in April 2017 and placed on a Community Corrections Order (CCO), the Applicant agreed there were special conditions he did not comply with.[29] He said the CCO was a ‘good opportunity’ but he wasn’t ‘in the right headspace’ at that time and unable to ‘commit 100% mentally.’ The Applicant said he remained sober for only a few weeks then relapsed after friends offered him alcohol. He claimed to be more mature now and confident he could do better if given another chance.
[29] Exhibit R2, 492.
The Applicant said opportunities in prison and immigration detention to demonstrate his rehabilitative progress were limited and he was unable to take all the actions he would like to improve himself.[30] He referred to weekly English classes in immigration detention that he hopes will assist him in finding work.[31] He is also trying to improve himself by going to the gymnasium and attending art classes.
[30] Exhibit A1, 2 [17].
[31] Ibid, 2 [15].
Remorse and conduct in custodial settings
The Applicant expressed remorse on several occasions, saying he wished he could ‘turn the clock back.’ He claimed to feel shame and remorse in the past whenever friends told him what he did while intoxicated or learned what he had done from police. He apologised on several occasions to his victims, the community, and his siblings for the ‘hurt that I have caused – all the bad words I’ve said to them’. He claimed to have resolved to remain abstinent from alcohol and change the course of his life, stating: ‘In the past I wasn’t able to commit fully but now I have decided to commit fully to change’.
The Applicant previously advanced claims that he was abstinent from alcohol for two years since imprisonment in 2018 and had ‘no desire or need to abuse alcohol again’.[32] In his most recent statement he said ‘staying free of alcohol is deeply important to me’,[33] but conceded he become intoxicated in December 2020 while in immigration detention:
It was my roommate who brewed the alcohol. When it was ready, I was unable to resist trying it and then unable to stop. I know that I promised never to drink in my last statement, and I know this incident makes it hard to accept that I can control my addiction.
Since that incident, my psychologist has prescribed the two white tablets in addition to the Avanza. The additional medication has further improved my ability to cope with problems and feel happy. I am sure I am much more able to deal with addiction with the new medication. I have a plan to manage the risk if I am released.[34]
[32] Exhibit R1, 76–77.
[33] Exhibit A1, 1 [5],
[34] Ibid, 2 [13].
The Applicant could not recall what the two white tablets are. There was no expert evidence about this medication or how it might interact with his alcoholism.
When referred to records relating to misconduct in prison and immigration detention, the Applicant agreed there was more than one occasion when he became intoxicated on illicit alcohol and engaged in objectionable behaviours. He attributed these records to racism and discrimination by prison officers and detention staff. He said this often manifested itself in rejection of his requests, causing him to become upset.
The Applicant was taken through recorded incidents of misconduct in prison by Mr Barrington.[35] He denied being part of a Burmese and Islander gang as claimed in one report, or that he had urinated on the floor of his cell, or smeared faeces, urine and food into door panels and internet buttons. The Applicant claimed that prison officers ‘are powerful and try to make [him] look bad’ so he would lose his visa or wrote the reports to ‘make themselves look better’. He denied the reports stating he swore at and abused prison officers, claiming he spoke no English at all and only started to learn it in 2020. When challenged that he could speak some English well prior to this, the Applicant said he did not know ‘a lot of English.’ When pressed, the Applicant accepted he ‘probably made threats’ to prison officers, which ‘could have been in Hakha Chin and misinterpreted’. When referred to a report that he acted violently on 13 February 2019 and had to be restrained,[36] the Applicant responded: ‘It may have been something that happened, but I don’t want to think about it’.
[35] Exhibit R2, 71.
[36] Ibid.
The Applicant accepted he was refused parole and served his full prison sentence, in part because of his misconduct. When asked if the incidents recorded against him reflected a continuation of his violent conduct in the community, he responded: ‘I don’t really want to remember anything that happened in the past. These are past mistakes I made, and I don’t really want to think of myself in that way anymore’.
Mr Barrington took the Applicant through records alleging misconduct in immigration detention. The Applicant agreed by this time he was aware the ‘stakes were pretty high’ regarding his visa status. Specific records he was taken to include:
(a)On 6 May 2021, the Applicant is reported to have approached staff at the detention centre stating: ‘Fuck you motherfucker, get out of here, fuck you ABF I will kill you’. This abuse is reported to have continued for several minutes and when a Detainee Service Officer (DSO) enquired what the Applicant’s issue was, the Applicant is reported to have ‘continued his rambling abuse and came towards the DSO with his fists raised’.[37] When asked about this during the hearing, the Applicant claimed to have only said: ‘It’s fucking shit here in the detention centre’. He denied approaching the staff member with his fists raised, claiming he was angry and swore about the detention centre, because the officers spoke to him harshly and ‘act like they are the bosses and use their power’ including in deciding if he can have a cup of coffee, which is not always available when he wants it;
[37] Exhibit R1, 122.
(b)On 12 December 2020, the Applicant reportedly engaged in several incidents:
(i)A DSO reported the Applicant ‘was drinking and appeared to be inebriated.’ A black bin containing approximately 20 litres of ‘home brew’ was discovered in the Applicant’s room, which he did not admit ownership of;[38]
[38] Ibid, 114.
(ii)The Applicant is reported to have grabbed another detainee’s t-shirt and picked them up from a chair, resulting in a ‘Code Black (officer needs assistance)’ call.[39] An ERT[40] attended and the Applicant reportedly engaged in ‘ongoing aggressive behaviour’ while ‘under the influence of alcohol’;[41]
[39] Ibid, 115.
[40] Emergency Response Team.
[41] Exhibit R1, 115.
(iii)An allegation of sexual assault was made against the Applicant by a detainee, who said the Applicant approached from behind and ‘was rubbing himself’ up against the other detainee;[42]
[42] Ibid, 116.
(c)In his oral evidence the Applicant said the home brew was not his but admitted drinking it and becoming intoxicated. He claimed not to remember anything that subsequently occurred, but accepted he was probably aggressive against the other detainee. After receiving a warning about his right to silence and privilege against self-incrimination, the Applicant said he was ‘due to go to court’ in relation to the sexual assault allegation involving the other detainee. He claimed the complainant ‘just wanted to make [him] look bad’, and the Applicant would defend the charge. He said it was after these incidents in December 2020 that he ‘made the decision to fully commit’ by permanently abstaining from alcohol. He stated: ‘Even now there’s people before me making alcohol but I don’t have a desire to drink it’;
(d)On 14 November 2020, it was reported that the Applicant was intoxicated on home brew and a ‘Code Black (officer needs assistance)’ was called after he reportedly engaged in a fight with another detainee.[43] The Applicant is reported to have admitted to ownership of the home brew on this occasion and to have been unhappy about it being disposed of. In his oral evidence, the Applicant remembered this incident, conceded he was intoxicated, but claimed the home brew was not his. He said he was ‘still not 100% committed’ to abstinence from alcohol at this time and was so drunk he could not remember getting into a fight with the other detainee;
(e)On 17 October 2020, the Applicant is reported to have shouted at a female DSO that she was a ‘fucking dog’ following her failure to submit his canteen order.[44] When asked about this during the hearing, the Applicant said the female DSO refused to enter his order into the computer despite the Applicant and his friend submitting their orders at the same time. He conceded that he may have used a swear word in conversation with the friend, but denied directing it at the female DSO;
(f)On 21 October 2020, the Applicant reportedly walked towards a female DSO pointing his finger at her and shouting: ‘you are a fucking dog, fucking dog.’ When the female DSO told him to stop, the Applicant is reported to have repeated the abuse. Later the same day, when the same female DSO was assisting staff with dispensing medication, the Applicant, reportedly walked past her and ‘said in a chanting tone Fucking dog whore, Fucking dog whore, Fucking dog whore.[45] When asked about this during the hearing, the Applicant said he ‘did not say it to that extent’ and had just stated: ‘leave me alone – stay away from me’. He said the chanted words attributed to him were untrue. He claimed he was getting his medication and there were three staff members saying something to him that he interpreted as rude and discriminatory, so he told them to ‘shut the fuck up’;
(g)On 18 October 2020, the Applicant reportedly became ‘abusive and aggressive’ towards a DSO, calling him a ‘dog’ and telling him to ‘fuck off’. When told by the DSO to stop, the Applicant reportedly ‘got up from his chair’ and ‘approached the DSO in an aggressive manner’.[46] The Applicant explained it was the officer who started the argument, but conceded he told the officer to ‘shut the fuck up’;
(h)Towards the end of his evidence, the Applicant complained he was currently ‘locked up’ in immigration detention after an incident he described as follows:
A few days ago one of the detainees stepped on my garden and we had an argument... I told the other detainee not to step on it but he did. I grabbed his shirt and his shirt was ripped – he went to the supervisor and reported me.
(i)The Applicant considers the three-day length of his segregation for this incident unfair, stating: ‘other people who get in trouble only get locked up for 24 hours;’
(j)On several occasions the Applicant referred to immigration detention as ‘the same as prison,’ asserting this was a continuation of his criminal punishment.
[43] Ibid, 111–12.
[44] Ibid, 107.
[45] Ibid, 109.
[46] Ibid, 108.
It was put to the Applicant that his conduct in the community and while in custodial settings appeared to reflect persistent problems with lawful authority. The Applicant expressed regret for his conduct against lawful authority.
Protective factors, and future plans
The Applicant referred to the support of his brother as an important protective factor to help get his life ‘back on a positive track.’[47] He intends living with his brother until able to find work and live independently. He said there was no medical or psychological condition impeding his immediate return to work. He wants to reconnect with his church, avoid the people he used to drink with, and find ‘sincere friends who are not drinkers’.[48] He also wants to get his driver’s licence, get married, and start a family. The Applicant said his Christian faith will help him avoid alcohol in the future.[49] He previously drifted away from the church because he ‘was more influenced’ by negative peers but wanted to change this. He could not recall when it was he drifted away from the church.
[47] Exhibit A1, 2 [18]-[20].
[48] Ibid, 3 [21].
[49] Ibid, 2 [16].
The Applicant accepted that the protective factors he invoked were previously available but did not stop his alcohol abuse or offending. He said the difference now is he is more mature, has greater insight, and his undertakings are more reliable because he is ‘100% committed’ to change. He ‘realises alcohol is [his] enemy’.
Contribution to Australia
When asked about any positive contribution in Australia, the Applicant said he worked for a few years and when not abusing alcohol is a ‘good person.’ He referred to previously attending church.
Concerns about an adverse decision or repatriation
The Applicant said that because of the current situation in Myanmar he was unable to return and expressed concern about the length of time he might spend in immigration detention if his application is unsuccessful. He said that he preferred to return to Malaysia, where he previously lived, or to India. He feared returning to Myanmar because Christians were heavily persecuted, and he would not feel safe anywhere. He said circumstances were very difficult for Chin people after the coup d’état and everyone in his village was displaced. When asked how he knew this, the Applicant said he connected with other Chin people on social networking, who told him about the situation. The Applicant felt he would be identifiable and a ‘person of interest’ to Myanmar authorities because of the circumstances of his departure, and the soldiers would try to kill him. When asked if he intended to apply for a protection visa, the Applicant responded: ‘I think I am planning to apply.’
Evidence of Applicant’s brother
The Applicant’s brother adopted his statement dated 22 September 2021 as true and correct.[50] He said the RILC asked him to submit a statement in support of the Applicant and he was happy to do so because he loves his brother and wants to support him.
[50] Exhibit A2.

The witness said the Applicant fled to Malaysia in 2008 and he followed in 2010 because soldiers were ‘bothering’ him about his brother’s whereabouts. He said their younger sister fled in 2017, prior to which she lived with their parents in Myanmar. The Tribunal clarified this given the inconsistency with the witness’s statement, which claimed: ‘We do not have any family in Myanmar who could help him if he returned there’.[51] The witness said his parents were ill and lived with their father’s younger siblings. He spoke to his parents about once a month and thought the Applicant had spoken to them within the last year. The witness said he provides financial and emotional support to his parents and sister from Australia whenever he can.
[51] Ibid, 1 [6].
The witness said he knew about the Applicant’s offending. When asked to elaborate, he said the Applicant told him the most recent offending involved moving a child out of the way, which the child’s caregivers wrongly interpreted as the Applicant trying to take the child. He said there were also times in the past when the Applicant got into arguments with police, including when a policewoman said something that made him angry, so he pushed her.
The witness attributed the Applicant’s offending to alcoholism. He said the Applicant does not know his limits when drinking but was a ‘good person’ when sober. The witness said he was not aware of the extent of the Applicant’s drinking and gambling while they were living in Malaysia, because they often worked remotely from each other.
The witness said he counselled the Applicant ‘many times’ to stop drinking and engage with counselling, but to no avail. On one occasion he ‘kicked him out of the house’. If the Applicant was released into the community, the witness said he would try to assist him as much as he could, including by helping him abstain from alcohol and finding work. He had asked some friends to help the Applicant find a job at their factory but had not asked his own employer. This was because his company did a lot of school construction and the Applicant could not work in these locations as a registered sex offender. When asked if he had told his friends at the factory about the Applicant’s criminal history, the witness said he had not.
Tribunal consideration of evidence
Aspects of the Applicant’s evidence were inconsistent, evasive, or exaggerated to the point of raising credibility concerns. This conclusion is not made lightly and arises from substantial inconsistencies that include the following:
(a)Departure from Myanmar and family claims. The Applicant’s evidence is that he last spoke to his parents prior to fleeing Myanmar in 2008. He said someone told him in Malaysia in 2010 that his father died, and he was unsure if his mother is alive. The Applicant’s brother gave evidence, however, that:
(i)their parents are still alive in Myanmar and live with their father’s younger siblings;
(ii)their younger sister lived with their parents in Myanmar until leaving for Malaysia in 2017;
(iii)he sends their parents financial support whenever he can; and
(iv)he thought the Applicant last talked to their parents about a year ago, whereas he talks to their parents about every month.
(b)The Applicant was given an opportunity to ask his brother questions at the conclusion of this evidence but declined, stating: ‘No, what he said was good, I don’t have anything to say.' On the following hearing day, the Tribunal recalled the Applicant to respond to inconsistencies about his earlier family claims. He continued to give implausible evidence that he was unaware of and was shocked to discover his parents are still alive. When pressed to recall the last time he spoke to his parents, the Applicant responded: ‘I don’t remember’;
(c)The Applicant insisted that even though he is very close to his brother, who he has lived with almost constantly since 2010, and who he speaks to by telephone multiple times each week, his brother had not previously told him their parents were alive. He also implausibly submitted that he spoke to his sister in Malaysia prior to going to prison in 2018, but the subject of their parents never came up. The Applicant then attempted to impugn his brother’s evidence about their parents as a ‘guess,’ or misconstrued, or untrue because his brother is ‘not a good speaker’, or that the information about his parents was not conveyed to the Applicant because of his alcoholism and his siblings ‘were scared’ to inform him. When asked why he did not ask his brother any questions when given the opportunity to do so during the hearing the previous afternoon, the Applicant said he had too much to say, it was late in the afternoon, and he did not wish to delay the Tribunal;
(d)The Tribunal rejects the Applicant’s evidence about his parents and prefers the evidence of his brother, which was freely given and without motive to be untruthful. Moreover, given that his sister left Myanmar in 2017, prior to which she was living with their parents, it is inconceivable that the issue of their parents did not arise during the Applicant’s telephone conversation with her in 2018;
(e)The Applicant’s evidence about when he, his brother and sister left Myanmar was inconsistent. His 2020 statement referred to him fleeing Myanmar in 2008 with both his brother and sister.[52] During his oral evidence he claimed that he fled Myanmar in 2008, his brother fled in 2010, and made no reference to his sister’s departure. He attributed the mistake in his statement to the RILC employee who assisted him. The evidence of the Applicant’s brother was that the Applicant fled Myanmar in 2008, he fled in 2010, and their sister fled in 2017, prior to which she lived with their parents. The Tribunal prefers the evidence of the Applicant’s brother about the dates of their respective departures from Myanmar, which was freely given and forthright. This is particularly so given the Applicant’s claim on several occasions that he has suffered an unspecified cognitive deficit from persistent alcoholism;
(f)Offending. The Applicant’s purported inability to remember almost all his offending did not reflect well on his credibility. The few things he claimed to remember were predominantly directed at impugning his convictions or diminishing his culpability. This included cavilling about the weapon he used while committing a sexual offence against a young man, attributing a racist slur to a young female employee he sexually assaulted in a shopping centre, and implausibly claiming his Child stealing conviction resulted from moving a child out of his way. Several of the Applicant’s claims conflicted with the elements needed to make out the offences he pleaded guilty to and was convicted of;
(g)Inability to speak English prior to 2020. The Applicant rejected some claims relating to his stalking and indecent assault of a woman in 2015, and his verbal abuse of prison staff in 2018 and 2019, on the unpersuasive basis that he was unable to speak any English at all prior to 2020. By 2018, however, he had been in Australia for approximately four years, with several years of work in a factory. Police reports and victim statements refer to him speaking some English. Moreover, there are multiple references in the evidence to the Applicant using the term ‘fucking dog’ to abuse prison staff prior to 2020. Use of this term also appears in several records in immigration detention. The Tribunal is satisfied the Applicant was able to speak some English well prior to 2020;
(h)Blame-shifting. The Applicant frequently engaged in blame-shifting, including when claiming the RILC was responsible for inaccuracies in statements he had adopted as true and correct. He also claimed an interpreter ‘harshly’ interpreted his words to police, that prison and detention centre staff do not like him, or are racist and discriminate against him, or make false reports, or deny his reasonable requests. The Applicant’s complaints about being on the Sex Offender’s Register fail to acknowledge that it is not just a conviction for rape that can lead to registration as a sex offender. He also blamed others for the illicit alcohol he consumed in prison and immigration detention, despite a report stating he accepted ownership of alcohol on one occasion.[53] He is recorded in one detention centre report as complaining about the action taken against him after he became drunk on home brew, stating that in prison he ‘usually gets two warnings for being intoxicated’.[54] The Tribunal rejects the Applicant’s efforts to shift blame and prefers the consistent pattern of conduct reflected in the contemporaneous prison and immigration centre reports to his uncorroborated and, at times, scandalous assertions;
(i)Alcohol abuse. In a statement dated 20 April 2020 the Applicant claimed he will ‘never drink again,’ which was ‘deeply important’ to him.[55] In accompanying RILC submissions, he claimed not to have ‘abused alcohol for about two years…and has used his time in prison to reflect on his past alcohol abuse and its relationship to his offending’ such that he has ‘been able to remain clean of alcohol and has no desire or need to abuse alcohol again in the future.’[56] In his most recent statement, the Applicant referred to a single incident in detention where he became intoxicated on ‘orange wine’, which he could not resist.[57] The Applicant conceded in his oral evidence, however, there were at least two incidents of intoxication in immigration detention and another while imprisoned. His evidence about relapse into alcohol abuse while in custodial settings is incomplete at best.
PRIMARY CONSIDERATIONS
[52] Exhibit R1, 103 [2].
[53] Ibid, 112.
[54] Ibid, 125.
[55] Ibid, 104 [10]–[11].
[56] Ibid, 76–77.
[57] Exhibit A1, 2 [13].
Protection of the Australian community from criminal or other serious conduct
Clause 8.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Tribunal consideration: The nature and seriousness of the conduct
Clause 8.1.1 of the Direction sets out factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. Decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)    violent and/or sexual crimes;
(ii)   crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)    causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)   crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended 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).
The Tribunal has considered a Nationally Coordinated Criminal History Check dated 14 February 2019 and material obtained under summons. This discloses the extent of the Applicant’s offending between 2015 and 2018, which includes violence against persons not known to the Applicant and police / emergency workers.[58] Noteworthy occasions of offending include:
[58] Exhibit R2, 83; 98; 218; 369; 506–508; 521–522.
(a)Incident on 9 March 2018.[59] Perhaps the Applicant’s most serious offending involves a three-year-old female child. He was a Registered Sex Offender and on bail at the time. A Summary of Circumstances, to which the Applicant pleaded guilty, state:
[59] Exhibit R1, 48–50; Exhibit R2, 83; 93; 96; 98; 123; 125–126.
…
9. At approximately 1:15pm…the accused approached a 3 year old female…who was in the coin operated…ride with a 3 year old male. The grand parents of the 3 year old female child were seated approximately 6 feet away. The mother of the 3 year old male was standing nearby. The accused began talking to the two children in the ride.
10. The accused then seized the arm of the 3 year old male. The mother of this male child intervened grabbing her son and removing him from the accused. (CCTV Exhibit 2, Charges 1,2,8,9)
11. The accused then seized the 3 year old female in his arms, held her to his chest and walked away from the store. The complainant’s grandfather observed the accused walking off with the 3 year old female and gave chase. The accused had possession of the 3 year old child for approximately 15 seconds before the grandfather retrieved her.
12. Prior to leaving the shopping centre the accused attempted to change his appearance by removing his t shirt which was dark in colour. The accused had another t shirt on underneath which was white in colour. The accused left the shopping centre. There is CCTV footage of this incident. (CCTV Exhibit 2, Charges 1,2,8,9)
13. Police were notified and the accused was arrested a short time later...[60]
[60] Exhibit R1, 48–50.
(b)Sentencing remarks from the Melbourne Magistrates’ Court dated 24 August 2018[61] refer to the effect of this offending as follows:
[61] Ibid, 39–42.
HER HONOUR: … I need to tell you that the grandfather of the three-year-old who you picked up and walked away with has written a victim impact statement too. The whole family finds that incident terrifying and it has affected them every day when they’re in public with that little girl.
(c)The magistrate advised that but for the Applicant’s pleas of guilty, she ‘probably would have refused jurisdiction’,[62] requiring the matter to be heard by a court with higher sentencing powers.[63]
[62] Ibid, 45.
[63] Sentencing Act 1991 (Vic), s 6AAA.
(d)Incident on 12 February 2018.[64] A Summary of Circumstances to which the Applicant pleaded guilty stated:
[64] Exhibit R1, 48; 197.
6. …at approximately 2:15pm the accused attended at the Woolworths store…At this location he approached a staff member being the female complainant…The accused told the complainant she was beautiful and repeated this approximately 5 times and then touched her arm before moving away.
7. A few minutes later the accused approached the complainant and told her that he loved her. He then raised his right hand and placed it on the complainant’s left breast and brushed his hand from her left breast across her chest and onto her right breast.
8. The complainant walked away and the accused left the store. The matter was reported to police. CCTV footage was obtained and the accused was identified by a distinctive tattoo.
(e)Incident on 2 December 2016
.[65] The Applicant is reported to have approached a

19-year-old male from behind at about 1:00 am and pressed what the victim thought was a knife against his back, while placing his other hand down the young man’s pants and grabbing him on the buttocks. The Applicant then attempted to move his hand around to the front of the victim’s groin area but was unsuccessful. The victim struggled, broke free, and sought refuge in a nearby service station, following which police were called. The Applicant was subsequently located nearby and arrested by police, during which he was reportedly ‘very aggressive’;
(f)Incident on 27 June 2015.[66] Police recorded the following outline of circumstances relating to the stalking and indecent assault of a young woman:
Subject walking through Croydon Park heading towards home…Subject observed male…exit public toilet block at this location. Male stared at her, making her feel nervous and causing her to change her route…Male cut across park and came out…near swimming pool, and stopped so he could strike up conversation with subject. Subject was polite but tried to deflect attention. Suspect commenced walking with the subject…and…walked the whole way…The whole time the suspect was walking close to the subject, occasionally placing his arm around her shoulders, touching her buttocks and at one stage stopped and grabbed her cheeks in an attempt to kiss her. Subject fearful for her safety and didn't want to aggravate the suspect so remained polite but said 'No' on every occasion that he touched her. When they arrived at the round-abouts the subject attempted to get the suspect to turn off towards the train station as he said he was going to do. However he continued to follow her…Subject stopped and moved away from the suspect on multiple occasions, only to have him follow her from the opposite side of the road. She stopped and turned back towards the police station and the suspect crossed the road, preventing her from getting to the police station as she said she was going to do to make a report about his behaviour. She finally got free of him and entered the police station.
[65] Exhibit R2, 201; 263; 438.
[66] Ibid, 137; 150-155.; 498-499
As provided for in the chapeau of cl 8.1.1(1) of the Direction, regard can be had for criminal offending ‘or other conduct to date’. Records refer to multiple incidents of misconduct involving the Applicant in custodial settings, including intoxication on home brew, and abusive, aggressive and violent behaviours.[67] More recently in immigration detention, this includes him being relocated due to disturbances, further instances of intoxication, and being placed on a Behaviour Management Plan in December 2020.
[67] Exhibit R1, 114–22; Exhibit R2, 67; 69; 71.
Mr Barrington submitted that the totality of the Applicant’s offending was very serious, comprising mostly violent and sexual crimes. He said patterns of offending were discernible and grounded in persistent alcohol abuse, although there was also evidence of persistent misconduct when alcohol was not a factor.
Tribunal findings: The nature and seriousness of the conduct

The Tribunal rejects the Applicant’s efforts to impermissibly impugn his convictions or the essential factual basis underlying them.[68] His pleas of guilty constitute admission to and acceptance of all elements of the offences he was convicted of.[69] He was most recently convicted in 2018 of Child stealing with intent, an indictable offence carrying liability for level 6 imprisonment (five years maximum).[70] His other convictions fall into several categories:
[68] Minister of Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 at 358; Minister of Immigration and Migrant Affairs v SRT (1999) 91 FCR 234 at 244–245; HZCP v Minister for Immigration and Border Protection (2018) 78 AAR 325, [102] (Bromberg J).
[69] Maxwell v R (1996) 184 CLR 501, at [19].
[70] Crimes Act 1958 (Vic), s 63.
(a)Sexual offences:
(i)Sexual assault in 2017 and in 2018;
(ii)Commit sexual offence armed with weapon (2017); and
(iii)Indecent assault (2017).
(b)Offences involving violence or threat of violence:
(i)Make threat to kill (2017);
(ii)Stalk another person (2017);
(iii)Two charges of Assault police officer (2017);
(iv)Five charges of Resist police officer (2017);
(v)Assault protective services officer (2017);
(vi)Resist protective services officer (2017);
(vii)Three charges of Assault emergency worker on duty (2017); and
(viii)Four charges of Resist emergency worker on duty (2017).
(c)Conditional liberty offending:
(i)Three charges of Fail to comply with reporting obligations relating to the Sex Offender’s Register (2018);
(ii)Contravene Community Correction Order (2018);
(iii)Breach re Sexual assault and other offences (2018);
(iv)Commit indictable offence whilst on bail (2017 and 2018); and
(v)Three charges of Contravene a conduct condition of bail (2017).
(d)Behavioural and property offending:
(i)Criminal damage (Intent damage / destroy) (2017);
(ii)Two charges of Drunk and disorderly in public place (2017);
(iii)Three charges of Drunk in a public place (2017);
(iv)Fail leave licenced premises – drunk / violent / quarrelsome (2017);
(v)Enter place likely cause breach of peace (2017);
(vi)Possess open liquor container railway premises (2017); and
(vii)Refuse / fail to state name / address to PSO (2017).
The Applicant’s crimes are predominantly of a violent or sexual nature and very serious: cls 8.11(a)(i)-(ii) of the Direction. He referred to multiple occasions where it was only after sobering up, that he learned from friends or police about the extent of his behaviour, eliciting feelings of shame and remorse. The repeat nature of his conduct, notwithstanding any feelings of contrition or embarrassment, only aggravates its seriousness.
The Applicant has committed multiple crimes against police, which is viewed seriously: cl 8.1.1(1)(b)(ii). Police were forced to use OC foam to effect arrests on several occasions, incurring injury in the process and being subjected to conduct like being struck or spat at by the Applicant. Like any other worker, police should not be subjected to abuse, assault or other degrading treatment while doing their job.
The Applicant’s sentencing in 2018 included re-sentencing for earlier crimes, resulting in a total effective sentence of 30 months’ imprisonment. This is well below the maximum sentence available, although any sentence of imprisonment is considered a serious penalty.[71] The Magistrate’s remarks amply reinforce the objective seriousness of the Applicant’s crimes: cl 8.1.1(1)(c).
[71] See for example: Sentencing Advisory Council, ‘Imprisonment,” <
The frequency of the Applicant’s offending is clear from the persistent nature of his crimes since June 2015, with approximately 40 convictions recorded against him: cl 8.1.1(1)(d). In terms of ‘other conduct to date’ (cl 8.1.1(1), the Applicant has continued to engage in abusive, aggressive, and threatening behaviours while in custodial settings since 2018, both while sober and intoxicated.
The cumulative effect of the Applicant’s offending is apparent from victim impact statements, which provide a compelling backdrop to the harm he has caused. This includes the trauma experienced by a woman he assaulted[72] and the family members of the child at the shopping centre.[73] It is also apparent from police and custodial reports, and from the costs borne by the community in terms of court action and other interventions to deal with the adverse consequences of the Applicant’s conduct.
[72] Exhibit R2, 150.
[73] Exhibit R1, 39 [15].
The Tribunal finds the totality of the Applicant’s offending and other conduct is very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 8.1.2(1) of the Direction states:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Clause 8.1.2(2) of the Direction relevantly provides that in assessing the risk posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the noncitizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Sentencing remarks
During sentencing on 24 August 2018, the Magistrate stated in part:
When you were released and placed on that corrections order for a couple of weeks you did very well, but it appears that within a relatively short period of time you began drinking again. You were remanded…this time in relation to another sexual assault…on a 28-year-old woman, a charge of child stealing…There are also some other charges of failing to comply with your obligations under the Sex Offender Registration Act.
…
But more importantly for this Court is the hardship that you’ve caused to other people, so I have to sentence you effectively in relation to three sexual assaults, one child stealing, several assaults on police officers and the breaches of the reporting obligations.[74]
[74] Ibid, 41–42
Reasons for offending
In a report prepared for the Court in 2017, it is stated the Applicant consumed alcohol since the age of 15, and regularly drank to the ‘point of blackout’.[75] The Applicant’s brother stated the Applicant was ‘unable to make good choices and did stupid things because of his drinking’.[76] The Applicant conceded alcoholism is a persistently negative feature of his life and there are several references in evidence to the ‘uncontrollable’ nature of his drinking.[77] In oral evidence he said this made ‘everything worse’.
[75] Exhibit R2, 407.
[76] Exhibit A2, 2 [12].
[77] Exhibit R2, 407.
Risk and rehabilitation
The only references to expert evidence about the Applicant’s drinking and risk of recidivism are in the sentencing remarks, based on reports ahead of the Applicant’s 2018 court appearance. These were not before the Tribunal. The presiding magistrate noted:
In the meantime whilst you’ve been on remand corrections have provided a report and so have Forensicare, the mental health authority. Dr Dajee, who did the Forensicare report, wasn’t sure if you had an underlying sexual offending disorder or whether it was primarily situational and reckless because of excessive alcohol. Either way Dr Dajee thought you were a low risk of offending when sober, but high risk when you are drinking. I’m told that you’ve resolved not to drink anymore…[78]
[78] Exhibit R1, 41 [22]–[31].
In oral evidence the Applicant agreed he is unable to control his behaviour when drunk and was likely to commit further criminal offences if intoxicated. He aspires to remain abstinent if released and acknowledges this will require better engagement with treatment.[79] He claimed that his renewed commitment arises from ‘a clear mind now’ because he has ‘not been drinking for the past 2 years,’ will never drink again, and had abandoned his old life.[80] He promised to ‘behave like a good man, attend church regularly and live a good life.’[81] He conceded, however, there were occasions in prison and immigration detention when he became intoxicated on illicit alcohol, but had resolved after one such incident in December 2020 to never drink again.
[79] Ibid.
[80] Ibid, 104, [10]–[12]; [27].
[81] Ibid, 105 [17].
In a Personal Circumstances Form, the Applicant stated: ‘I have undertaken rehabilitation programs in prison and I do not believe I am a risk to the community.’[82] In a subsequent statement, however, the Applicant said he has not been able to do ‘any of the courses’ because he does not speak English.[83] In submissions prepared by the RILC, it is stated the Applicant ‘wanted to…engage in behavioural intervention programs offered in prison, however, his English was not good enough…to participate’.[84] In his oral evidence the Applicant confirmed he had not undertaken rehabilitative programs in prison or immigration detention because of his limited English. He expressed a ‘strong desire’ to continue his rehabilitation if released.[85]
[82] Ibid, 56.
[83] Ibid, 104 [13].
[84] Ibid, 77.
[85] Ibid, 77.
The Tribunal has considered other evidence relevant to rehabilitation and risk as follows:
(a)Letter from the Migrant Information Centre dated 19 August 2016[86] stating the Applicant:
[86] Exhibit R2, 394.
(i)Was referred to the Turning Point Reaching Out Program to ‘help him manage his binge drinking, which has led him to public intoxication and other offensive behaviours;’
(ii)Had ‘engaged well with the program and he will continue to seek counselling until he reaches his goals’;
(iii)Had ‘worked extensively with the Pastors… at his church…’; and
(iv)Undertook ‘casual employment and…lives with his brother, his sister-in-law and their…children’, from whom he received ‘support and stability.’
(b)Letter from a psychologist at Turning Point Treatment Services (TPTS) dated 19 August 2016,[87] stating the Applicant had ‘engaged enthusiastically in the counselling process,’ which at that time included eight therapeutic sessions. An instance of relapse is referred to resulting in public intoxication and involvement of police, following which the Applicant reportedly re-committed to the counselling process and ‘alternative healthy behaviours.’
(c)A report prepared for the Court in 2017 advised that the Applicant ceased engaging with TPTS in September 2016 and at that time had a gambling problem with no control over his money.[88] The same report stated the Applicant intended to remain abstinent and realised he needed to better ‘engage in treatment’ in order to do this;
(d)The Applicant claimed to the sentencing magistrate in 2018 that he had resolved not to drink alcohol again;[89]
(e)The Applicant’s brother attributed the Applicant’s drinking to ‘friends who were all alcoholics…encouraged him to drink…[and]…were a very bad influence.’[90]
[87] Ibid, 395–396.
[88] Ibid, 407.
[89] Exhibit R1, 41 [30], 42 [1].
[90] Exhibit A2, 2 [18].
Remorse and protective factors
The Applicant stated he is sorry and ashamed for his past actions and ‘the fear and harm caused to victims’. He said his brother would ‘open his home’ to him if released, which was confirmed in his brother’s evidence.[91] His brother also referred to supporting the Applicant with searching for a job and thought that unnamed friends may recommend him for vacancies in an unspecified factory.[92] In his oral evidence, however, the Applicant’s brother said he had not told these friends about the Applicant’s criminal history.
[91] Ibid, 2 [16]–[22].
[92] Ibid, 3 [23].
The Applicant said he wants to find a job, get a car and ‘start a family’ if released. He expressed an intention not to return to negative peers but to find ‘good friends’ at church that will provide him with spiritual support and encouragement. He claimed to have a strong past association with the Victorian Chin Baptist Church in Melbourne, which ceased ‘when [he] was drinking a lot’. He aspires to again be a part of activities with his faith community like ‘going camping’. There is no evidence from office holders of the church, or other parishioners or friends, to corroborate these claims.
Mr Barrington submitted that the Applicant’s past undertakings were unreliable, and on each occasion he ‘started to drink relatively quickly’ and engage in violent and sexual behaviours. He said the Applicant was not deterred by the punishments awarded to him or risks arising to his visa status. Mr Barrington said the Applicant’s continuing conduct reflects an unacceptable risk of reoffending irrespective of whether he abstains from alcohol.
Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The nexus drawn by the Applicant between past troubling events in his life and persistent alcoholism and offending is unpersuasive. Many people come from difficult backgrounds and subsequently leverage the opportunity of residence in Australia to make a better life for themselves. A compelling comparator is the Applicant’s brother, who came from similar difficult circumstances, but has been able to effectively integrate into the community. The Applicant has instead remained enmeshed in persistent alcoholism and offending.
The following findings are made:
(a)If the Applicant were to repeat his offending, serious physical or psychological harm could be caused to members of the community, including women, children, and police. The community’s tolerance for such conduct, or the risk it may be repeated, is understandably very low;
(b)The Applicant has engaged in frequent misconduct in custodial settings. Conditional liberty arrangements, imprisonment, immigration detention, and threats to his migration status have not deterred him from alcoholism and offending. His conduct reflects a persistent pattern of criminal and other objectionable behaviour;
(c)The evidence discloses the Applicant’s rehabilitation is incomplete at best:
(i)He became intoxicated in prison and immigration detention on several occasions. Any commitment to abstain is untested in the community, where past counselling and rehabilitation did not meaningfully assist him. To the contrary, the Applicant claimed not to have taken these past opportunities seriously and only decided to permanently abstain from alcohol after becoming intoxicated in detention about nine months ago;
(ii)The Applicant’s assertion that unidentified and recently prescribed medication will help mitigate his risk of relapsing into alcoholism was uncorroborated by expert evidence;
(iii)The Applicant committed further sexual crimes after being placed on the Sex Offender’s Register. The 2018 sentencing remarks refer to the possibility of an underlying sexual offending disorder. There is no evidence the Applicant has engaged in any counselling or rehabilitation relevant to sexual offending. During the hearing the Applicant volunteered he was facing a further charge of sexual assault made by another detainee.[93] No other evidence is available about this pending charge and no negative inference is drawn. The Tribunal accepts the Applicant intends defending this charge;
[93] Exhibit R1, 116.
(iv)The Applicant disclosed a gambling addiction that began in in Malaysia and persisted in Australia. There is no evidence he has engaged in any counselling or rehabilitation relevant to gambling;
(v)The Applicant’s purported ‘100%’ commitment to meaningful change is largely aspirational and relatively recent when regard is had for the longstanding nature of his alcoholism. His past claims of insight and reform, including to a TPTS counsellor, the courts, and the Department have proven unreliable. His latest undertakings inspire little confidence; and
(vi)Beyond general claims, there is no evidence the Applicant has made any effort to identify how he might pursue his rehabilitative aspirations if released. In any event, decisions should not be delayed for rehabilitation to be undertaken: cl 8.1.2(2)(b)(ii) of the Direction.
(d)In terms of the Applicant’s likelihood of engaging in further crimes or other serious conduct:
(i)He previously engaged in voluntary alcohol counselling in 2016 and was also subjected to court-ordered conditions in 2017. He did not take the former seriously and failed to comply with the latter; and
(ii)The Applicant’s evidence is that apart from three incidents of intoxication in prison and immigration detention since 2018, he was largely alcohol free in custodial settings. This shows he has continued to act in an abusive, aggressive, and violent way even when alcohol is not involved.
(e)In terms of protective factors:
(i)Notwithstanding the absence of any corroboration, the Tribunal accepts the Applicant may have undertaken some weekly English classes in immigration detention and perhaps tried to improve himself by attending the gymnasium and art classes. These activities are unrelated to his offence-specific needs;
(ii)The Tribunal accepts the Applicant has remained in touch with his brother by telephone, that they are close, and his brother will again provide accommodation and other practical and emotional support. There is no persuasive evidence of any realistic prospect of work, however, and the stable accommodation, wise counsel, and other support offered by the Applicant’s brother was previously ineffective;
(iii)The Applicant’s intention to find better friends and avoid negative influences is aspirational and unpersuasive given his past inability to do so; and
(iv)The Applicant’s intention to reconnect with his faith community is aspirational. Other than his brother, there is no corroborating evidence from leaders or other members of his church. Moreover, the Applicant’s evidence is that ‘it’s quite difficult…to get out there and engage’ with his community because of his sex offender status, which appears to be an impediment to fulfilling this aspiration.
It is not accepted that prison and immigration detention have had a salutary effect on the Applicant, because he has continued to consume illicit alcohol and engage in abusive, aggressive, and violent behaviours. Someone meaningfully committed to changing the course of their life would not act in this way. If the Applicant was truly ashamed and remorseful about his conduct whenever friends or police brought his unacceptable conduct to his attention, he would have made meaningful changes by now and acted differently in custodial environments.
There is a high and unacceptable likelihood the Applicant will relapse into alcohol abuse and commit further serious offences if released. This primary consideration weighs very substantially against revocation.
Family violence committed by the non-citizen
Direction 90 (cl 4(1); 8.2) requires the Tribunal to consider any incidents of family violence.
Tribunal findings: Family violence committed by the non-citizen

The most recent Australian Government travel advice for Myanmar dated September 2021[117] states: ‘Do not travel’ because of ‘extreme risk to your safety’, and highlights a ‘significant increase in the level of violence with many deaths, injuries, detentions, and arrests’ resulting in martial law.[118] It is noted that after the imposition of martial law and a state of emergency by military authorities, ‘explosions and attacks are occurring daily in Yangon and other parts of the country’.[119] Active conflicts are reported between security forces and armed groups ‘across a large number of states and regions’.[120] Widespread detentions have been reported and Australians are reportedly at risk of arbitrary detention.
[117] Exhibit R2, 699–720.
[118] Ibid, 699-701.
[119] Ibid, 701.
[120] Ibid, 701.
Mr Barrington accepted that the security situation in Myanmar had deteriorated following the military coup d’état.[121] He submitted that the Applicant’s past status as a refugee visa holder was not determinative of his protection claims, however, and he is able to apply for a Protection Visa. Mr Barrington said the Respondent accepted the Applicant’s claimed fear of harm based on his Chin ethnicity and Christian faith was supported by recent events, but not the claims about actual or imputed political opinion. He said there was not a real chance the Applicant would be identified or targeted by the Myanmar military based on a purported interaction with soldiers when the Applicant was 12 years of age. Mr Barrington also pointed to the Applicant’s past false claims about his parents, which ‘throw into serious doubt’ his claims that his family were targeted because of his interactions with the Myanmar military.
[121] Respondent’s Statement of Facts, Issues and Contentions dated [51]–[67].
Tribunal findings: International non-refoulement obligations
The Applicant is a citizen of Myanmar, which is the receiving country for the purposes of s 5(1) of the Act. On several occasions during his oral evidence the Applicant expressed a preference for removal to Malaysia or India if he was unable to stay in Australia, but not to Myanmar.
Engagement with the Applicant’s claims can only be achieved with an element of speculation. Consideration of non-refoulement and indefinite detention claims are quite different from those relating to recidivism risk, which is routinely assisted by past convictions and expert evidence to draw upon. In contrast, decision-making about non-refoulement and indefinite detention encompasses often irresoluble branches and sequels of future events like: changing circumstances in a receiving country; extent to which an applicant may exercise their appeal rights; consideration of visa applications yet to be submitted; or ministerial discretion yet to be contemplated.
The Refugee Visa previously granted to the Applicant is not a Protection visa and as such he is not precluded from applying for a Protection Visa.[122] He advised during the hearing that he may do so, although the results of any such application cannot be speculated upon.[123] If he did apply, which seems a logical inference from the fears of harm he expresses, his prospects do not seem implausible and he could not be removed until his claims are finally determined.[124] Moreover, the Respondent is compelled to assess non-refoulement claims in compliance with Direction No 75 – Refusal of Protection visas Relying on Section 36(1C) and Section 36(2C)(b) (Direction 75). Direction 75 requires that when considering an application for a Protection Visa, an assessment must first be made about whether refugee and complementary protection criteria are met before considering ineligibility criteria. It is accepted, however, that only a successful Protection Visa application can avoid the prospect of removal,[125] and the Applicant’s criminal history would likely weigh against him.
[122] Sections 48A and 501E(2)(a) of the Act; Sowa v Minister for Home Affairs (2019) 369 ALR 389, [18].
[123] DOB18 v Minister for Home Affairs [2018] FCA 1523, [35].
[124] Section 198(5) of the Act.
[125] DQM18 v Minister for Home Affairs (2020) 278 FCR 529, [107]; [109] (DQM18) (Bromberg and Mortimer JJ).
In terms of the primary legal consequence of an adverse decision in this matter, the mandatory cancellation of the Applicant’s visa meant he became an unlawful non-citizen within the meaning of s 14 of the Act. In the event of a non-revocation decision, he is liable to be detained under s 189 of the Act and removed as soon as reasonably practicable, noting the operation of the amended s 197C(3) of the Act. It is permissible to continue a person’s detention for a legal reason, including while consideration is given to a Protection Visa application, or the possible exercise of a non-compellable Ministerial discretion at s 195A of the Act,[126] or to make a residence determination under s 197AB. Other factors that may impact the length of a non-citizen’s detention include:
[126] Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180, 191 [16].
(a)How the COVID-19 pandemic in Australia or a receiving country may impact on the obligation to remove as soon as reasonably practicable; or
(b)Whether there is a third country relocation option; or
(c)Whether an applicant decides to elect voluntary return.
Mr Barrington confirmed that an exercise of Ministerial discretion or third-country option was not currently in prospect. It similarly remains unclear how COVID-19 or another intervening act may impact the time the Applicant might spend in detention. But on the currently available evidence it does not appear reasonably practicable to remove the Applicant in the event of an adverse decision in this matter, or in the event of an unsuccessful Protection Visa application, or if a protection finding is made but the Applicant is denied a visa on character grounds. This process is likely to take a considerable amount of time, as might any future consideration of a non-compellable Ministerial discretion, or removal to a third country. There is a prospect the Applicant would be liable to remain in immigration detention with no fixed endpoint, which can be characterised as indefinite detention. Notwithstanding the absence of any expert evidence in this regard, the Tribunal accepts this can result in a deterioration of the Applicant’s mental health.
Were the Applicant to be refouled contrary to a finding that non-refoulement obligations were owed to him, negative consequences would arise for Australia’s international reputation as a party to the various Conventions, Protocols, Covenants, and other obligations under customary international law. The Tribunal’s concerns about refoulement are somewhat minimised but not entirely removed by the Applicant’s option of applying for a Protection Visa.
Irrespective of options that might emerge, a non-revocation decision comes with considerable significance for the Applicant, including the prospect of indeterminate deprivation of his personal liberty, with concomitant impacts on his mental health. It is simply not possible to say how long the uncertainties outlined above might take to resolve, because they relate to decisions not yet taken by the Applicant or future decision-makers. In this regard the Tribunal respectfully adopts aspects of the reasoning in Aliv Minister for Immigration and Border Protection (Ali):[127]
[127] [2018] FCA 650.
The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4). No matter how real the prospect may be of future decisions being impacted upon by the adverse assessment made by the Assistant Minister on 25 October 2017 for the purposes of s 501CA(4)(b)(i), the power exercised on that date was to be exercised – and was in fact exercised – by reference to the facts and circumstances then prevailing...
In DOB18 at [35], Griffiths J reflected favourably on the reasoning in Ali and similarly cautioned against speculating about the course of future decision-making:
…Justice Flick’s reasoning in Ali was adopted and applied by Logan J in Greene at [19] and by Farrell J in Turay at [40]…Contrary to the applicant’s submissions, I do not consider that the reasoning in this trio of cases is plainly wrong. Indeed, I consider that it is plainly correct. In my respectful view, it properly recognises the importance of the different stages of decision-making under the Act and the need to avoid speculation as to what might or might not occur in future decision-making...
(Emphasis added)
To the extent that submissions from the Applicant or RILC suggest a non-revocation decision constitutes a continuation of his
criminal punishment, this is rejected. That is because the ‘power to remove or deport aliens from a country is executive in nature and…non-punitive.’[128] In O’Keefe v Calwell,[129] Latham CJ referred to the deportation of a convicted immigrant as a measure of protection of the community and not as punishment for any offence. More recently in Falzon at [96], Nettle J held that, consistent with previous High Court reasoning,[130] immigration detention is valid for the purpose of removing a
[128] Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333, [29]; [88]; [93]–[94] (Falzon) (Nettle J).
[129] (1949) 77 CLR 261, 278.
[130] Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, [33]

non-citizen from Australia, is not punitive, and involves no exercise of judicial power or intention to impose additional punishment.[131]
[131] See also Falzon at [48], which referred with approval to Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 610 [74].
Notwithstanding the Tribunal’s finding that the Applicant’s parents are still alive and he may be able to source a measure of practical or emotional support from them, this does not outweigh the real and significant risk of harm confronting the Applicant if returned, which is substantiated by the Situational Update and other information. Myanmar is an even more unstable and violent place after the coup d’état in early 2021.
There are substantial grounds for believing there is a real risk the Applicant might suffer harm as a ‘necessary and foreseeable consequence’ of repatriation because of his Chin ethnicity and Christian faith. Current human rights violations in Myanmar encompass forced labour by military authorities, which correlate with the Applicant’s claimed fears about past treatment. The Applicant has a well-founded fear of persecution and discrimination from the military junta, and from generalised harm arising from the uncertain security situation. Given the state of Myanmar’s health system, the Applicant would likely struggle to access required treatment, including for his Hepatitis. Moreover, in the current unstable security situation, it is reasonably foreseeable he may be targeted by reason of being a failed asylum seeker returning to Myanmar from a Western country, which has the potential to attract the attention of military authorities. The Tribunal does not accept the Applicant’s claims, about actual or imputed political opinion, because there is not a real chance he would be identified or targeted by the military because of any interaction he might have had with soldiers whilst a minor.
The Tribunal finds the Applicant is likely to be owed non-refoulement obligations. He is confronted by significant risks of harm if returned to Myanmar and an indeterminate period in immigration detention depending on the options he and others may exercise. This consideration carries very substantial weight in favour of revocation.
Tribunal consideration: Extent of impediments if removed
Clause 9.2(1) of the Direction provides:
(1) Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) the non-citizen's age and health;
(b) whether there are substantial language or cultural barriers; and
(c) any social, medical and/or economic support available to them in that country.
The Applicant left Myanmar when he was approximately 16 years of age and then left Malaysia for Australia at the age of 22. He is currently 29 years old, reads and writes English and Hakha Chin at a basic level, speaks some English, and is fluent in Hakha Chin.[132] In terms of his health, he suffers from Hepatitis B and unspecified mental health issues.[133] He stated that medication provided to him in custody made him ‘feel calmer and sleep better’.[134] In his most recent statement he claimed that he is unsure what his specific mental health issues are, but claims ‘they are serious and will need ongoing treatment.’[135] He said that he takes Avanza for depression and two other unspecified ‘white pills,’ which he claimed were prescribed to him after he became intoxicated on home brew in late 2020, and that have helped him ‘feel much calmer’.[136] He also stated in oral evidence that he receives Diclofenac gel for his feet in immigration detention, which the Tribunal understands from open-source information is a non-steroidal anti-inflammatory used to treat aches, pains and swelling, including arthritic pain. If unable to continue receiving his required treatments, the Applicant said this would cause ‘a big problem’ for his health.[137]
[132] Exhibit R1, 133.
[133] Ibid, 105 [21]; 131.
[134] Ibid, 104 [14].
[135] Exhibit A1, 2 [11].
[136] Ibid.
[137] Exhibit R1, 105 [21].
The Applicant continues to claim he has no ‘close relatives in Myanmar and no support there’.[138] He repeated these claims during oral testimony notwithstanding his brother’s evidence that their parents and other relatives are still alive in Myanmar.
[138] Ibid, 106 [26].
The Tribunal has considered authoritative reports referring to Myanmar as one of Asia’s poorest countries with a third of the population living in poverty.[139] Employment opportunities are likely limited and generally inadequate health outcomes are reported, which are worse in rural areas because Myanmar ‘spends only around three per cent of GDP on healthcare’. Communicable diseases such as tuberculosis, malaria and HIV / AIDS are noted to be ‘leading causes of death and illness’. The healthcare situation appears appreciably worse after the coup d’état and continuing impacts of COVID-19. There is no evidence the Applicant has the resources to access private healthcare. In terms of mental health services, these are reportedly very limited:
[139] Exhibit R2, 650, [2.14].
Treatment is considered affordable for many, but access to and quality of services is more limited for people living outside of urban areas. Religious and cultural beliefs and social stigma surrounding mental illness reportedly prevent people from accessing professional services.[140]
[140] Ibid, 651 [2.21].
Tribunal findings: Extent of impediments if removed
The Applicant did not advance any language or cultural impediments if returned and none are discernible from the available evidence.
There is a dearth of evidence to corroborate the Applicant’s health issues, but the Tribunal accepts his unchallenged claims that he suffers from Hepatitis B, unspecified mental health issues for which he receives medication, and problems with his feet. That said, his oral evidence is that there is no medical or psychological impediment to him returning to physically active work and other pursuits if released, which he aspires to do.
Myanmar is a very poor country experiencing widespread poverty and with limited health resources. Its healthcare system, which appears under-resourced at the best of times, seems heavily over-stretched following the coup and sustained impact of COVID-19. The Applicant is likely to find it very difficult to provide for his daily needs, or get the medications he needs, or to address any emergent health needs, including from deteriorating mental health.
The Tribunal rejects the Applicant’s claim he has no relatives or other support in Myanmar and finds instead that his parents still live there with his father’s younger siblings. There is no evidence about what practical or emotional support they could provide. Based on the evidence of the Applicant’s brother, it is accepted the support available in Myanmar is likely to be limited. His brother’s continuing support may be a source of assistance for the Applicant if he was returned.
On balance, this consideration weighs very substantially in favour of revocation.
Tribunal consideration: Impact on victims
Clause 9.3(1) of the Direction provides that the Tribunal must consider the impact of a non-revocation decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where this information is available.
Tribunal findings: Impact on victims
The Federal Court has previously held this consideration ‘requires a particular focus upon the consequences of the exercise of discretion to grant a visa with the result that the applicant will remain in Australia,’ where that information is available.[141] More recently, the Full Court of the Australian Federal Court has stated this consideration referred to the ‘impact on the community, including victims, if the non-citizen were to hold a visa.’ [142]
[141] HVLC v Minister for Home Affairs [2019] FCA 616, [13] (Colvin J). Perram J has also recently dealt with this issue in Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646.
[142] CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [23].
There is no evidence about the impact of a non-revocation decision on any victim of the Applicant’s offending, or their family members. The Tribunal finds this consideration is not enlivened and carries neutral weight.
Tribunal consideration: Links to the Australian community
Clause 9.4 of the Direction provides that decision makers must, reflecting on the principles at clause 5.2, have regard to cl 9.4.1 relating to the Strength, nature and duration of ties to Australia, and cl 9.4.2 relating to Impact on Australian business interests. The Tribunal has considered the Applicant’s past work claims[143] and there is no evidence a decision in this matter risks compromising the delivery of a major project or an important service in Australia. The presumption in the Direction is therefore not displaced and cl 9.4.2 of the Direction carries neutral weight.
[143] Exhibit R1, 134.
Tribunal consideration: The strength, nature, and duration of ties to Australia
Clause 9.4.1 of the Direction states:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
(a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

The Applicant has lived in Australia for approximately seven years. His criminal offending commenced within two years of arriving here. He referred to limited work in a timber factory[144] but provided no corroboration of this or any other work undertaken.
[144] Ibid, 104 [9]; 134.
The Applicant has a younger brother who is married with two infant children. The Applicant claims to owe his brother $3,000 in debts.[145] Their oral evidence discloses past friction resulting from the Applicant’s persistent alcoholism, crimes, and unwillingness to accept his brother’s advice. The Tribunal accepts the evidence of the Applicant’s brother, however, that he loves the Applicant and wants to continue providing him with support and encouragement.
[145] Ibid, 135.
Reference was made during the hearing to the Applicant’s past association with the Chin Baptist Church and an unnamed sporting club, but no evidence was provided to corroborate the extent of those associations. The Applicant said he previously drifted away from his ethnic and faith community, preferring the association of negative peers, but aspires to reconnect with the former.
Tribunal findings: The strength, nature, and duration of ties to Australia
The Applicant did not arrive in Australia as a young child, nor has he lived here for most of his life. His offending commenced relatively soon after arrival and less weight is consequently given to this consideration. The Applicant’s ties to the Australian community after seven years are comparatively weak. The only supportive family evidence is from the Applicant’s brother, who the Tribunal infers has a right to remain in Australia indefinitely. The Tribunal accepts the Applicant would be very much missed by his brother if removed. There is no evidence, however, from others such as the Applicant’s sister-in-law, friends, past employers, or members of his faith community, to corroborate other meaningful associations in Australia.
The Applicant has limited family and social connections in Australia. He has made a scant positive contribution to the community since 2014, consisting of limited work and past engagement with his church and ethnic community. This consideration attracts only slight weight in favour of revocation.
Additional considerations
No additional considerations were advanced by the parties and the Tribunal has not identified any ‘other considerations’ under the non-exhaustive list at cl 9(1) of the Direction.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining whether there is ‘another reason’ why the visa cancellation should be revoked, the Tribunal has applied the Direction to the specific circumstances of this case. The Tribunal sees no reason to depart from the guidance in the Direction that greater weight ‘should generally be given’ to the primary considerations than other considerations.
The Applicant has committed very serious offences of a violent and sexual nature, causing harm to the Australian community. He has repeatedly breached judicial orders and continued to engage in objectionable behaviour in custodial settings. The totality of his conduct reflects a persistent disrespect for Australia’s law enforcement framework. The Australian community would expect he should not be allowed to remain in Australia.
There is a persistent nexus between the Applicant’s alcoholism and crimes, despite
court-ordered intervention, past counselling, rehabilitation, and the efforts of his brother. The Applicant has previously been unable to meaningfully alter the course of his life despite considerable supports. Given his inability to abstain from alcohol or abusive, aggressive, and violent behaviours in custody, there seems little prospect of him doing so if released. The protective factors the Applicant invokes are comparable to those existing in the past, but which did not motivate meaningful changes in his life.
The Applicant has played a relatively minor avuncular role in the lives of his brother’s two infant children and has never met the younger child. On an admittedly speculative basis, however, the Tribunal accepts revocation is in the children’s best interests.
Of the other considerations in this matter, the Applicant is likely to be owed non-refoulement obligations. He is confronted by significant risks of harm if returned to Myanmar and an indeterminate period in immigration detention if his application is refused. He would also encounter significant impediments if repatriated to a very poor country whose institutional structures continue to be tested by a coup d’état and the impact of COVID-19. The Applicant’s ties to Australia are comparatively weak after seven years living here, but nevertheless weigh in his favour.
Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the mandatory cancellation of the Applicant’s visa should be revoked. That is because the primary considerations ‘Protection of the Australian community’ and ‘Expectations of the Australian community,’ outweigh the combined weight to be given to the primary consideration Best interests of minor children in Australia and the other countervailing considerations.
DECISION
It follows that the Tribunal affirms the decision under review.

I certify that the preceding 150 (one hundred and fifty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

................[sgd]........................................................
Associate
Dated: 12 October 2021

Dates of hearing: 28, 29 and 30 September 2021

Applicant, self-represented: BMKL

Advocate for the Respondent:

Solicitors for the Respondent:

Mr Jonathan Barrington

Mills Oakley