BNPB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 730

BNPB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 730 (6 April 2023)
Division:GENERAL DIVISION
File Number: 2023/0084
Re:BNPB
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

REASONS FOR DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:6 April 2023
Place:Perth

The following decision was made and provided to the parties on 29 March 2023 with a note that written reasons would be provided to the parties within a reasonable time:
The Reviewable Decision, being the decision of a delegate of the Respondent dated 4 January 2023, is set aside and substituted with a decision that the cancellation of the Applicant’s Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

These are the reasons for my decision.
...............[Sgd].........................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – mandatory visa cancellation – decision of delegate of Minister not to revoke mandatory cancellation of the Applicant’s Visa – Cancellation Decision based on juvenile offending – whether a Cancellation Decision can be based on juvenile offending – whether the Tribunal has jurisdiction – whether the Applicant passes the character test – substantial criminal record – offences including aggravated home burglary and commit and aggravated armed robbery – Applicant is a 20-year-old citizen of Liberia who arrived in Australia when he was three years of age – Direction No 99 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – strength, nature and duration of ties to Australia – best interests of minor daughter and minor cousins – expectations of the Australian community – legal consequences of the decision – Australia’s international non-refoulement obligations – extent of impediments if removed – Reviewable Decision set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 25(1)(a)
Crimes Act 1914 (Cth) ss 85ZR(2)
Criminal Code Compilation Act 1913 (WA) s 392, 392(c), 392(d)
Migration Act 1958 (Cth) ss 197C, 499, 499(1), 499(2A), 500(6B), 500(6L), 501(3A) , 501(6), 501(6)(a), 501(7), 501(7)(c), 501(12), 501G(1), 501CA, 501CA(1), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)
Young Offenders Act 1994 (WA) ss 55, 55(1), 55(1)(b), 98, 99, 99(1), 100, 101, 101(1), 101(2), 101(4), schedule 2
Youth Justice Act 1992 (Qld) ss 184(2)
CASES
Batson and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 1715
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Kohli and Minister for Immigration and Border Protection [2017] AATA 1326
MXDK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1142
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Say v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 84
Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6
SECONDARY MATERIALS
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (23 January 2023) paras 4(1), 5.1, 5.1(3), 5.1(4), 5.2(5), 6, 7, 8, 8(1), 8(2), 8(3), 8(4), 8(5), 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.1(1)(h), 8.1.2, 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.3, 8.3(1), 8.3(2), 8.3(3), 8.3(4), 8.4, 8.4(4), 8.4(4)(a), 8.4(4)(b), 8.4(4)(c), 8.3(4)(d), 8.4(4)(e), 8.4(4)(f), 8.4(4)(g), 8.4(4)(h), 8.5, 8.5(1), 8.5(2), 8.5(2)(a), 8.5(2)(b), 8.5(2)(c), 8.5(2)(d), 8.5(2)(e), 8.5(2)(f), 8.5(3), 8.5(4), 9, 9(1), 9(1)(a), 9(1)(b), 9(1)(c), 9(1)(d), 9.1, 9.1(1), 9.1(2), 9.1(3), 9.1.1, 9.1.2, 9.1.2(1), 9.1.2(2), 9.1.2(3), 9.2, 9.2(1), 9.3, 9.3(1), 9.4, 9.4(1)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
6 April 2023
BACKGROUND

The Applicant is a 20-year-old man who was born in Liberia. He came to Australia when he was three years old with his mother (an aunt who had adopted him), his aunt, his sister, and his grandmother.
On 28 August 2020, shortly before his 18^th birthday, the Applicant was sentenced to 18 months youth detention for “aggravated armed robbery” (14 months cumulative) and “breach of a JCRO [juvenile conditional release order]” (four months cumulative). The sentence included concurrent sentences for three other breaches of JCROs (three months concurrent, and two one-month concurrent sentences), as well as for the offences of “aggravated armed robbery” (four months concurrent), “aggravated robbery” (seven months concurrent) and “aggravated home burglary and commit” (six months concurrent) (R2/119). All of the robbery offences were committed in July 2020 when the Applicant was approximately 17 years and 10 months old.
On 18 August 2021, the Applicant’s Class XB Subclass 200 Refugee visa (Visa) was mandatorily cancelled (Cancellation Decision) pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) on the basis that he had a substantial criminal record and was serving a full-time custodial sentence of imprisonment (G25/108).
The letter advising the Applicant of the Cancellation Decision advised the Applicant that he could make representations to seek revocation of the Cancellation Decision. The Applicant sought revocation of the Cancellation Decision on 7 September 2021 (G8). He submitted a personal circumstances form, and evidence in support (G9-G24).
However, on 4 January 2023, a delegate of the Minister decided not to exercise discretion under s 501CA(4) of the Migration Act to revoke the Cancellation Decision (G3/13). This is the Reviewable Decision currently before me.
The Applicant was notified of the Reviewable Decision by an email to his migration agent on 4 January 2023 (G3/10-12).
On 8 January 2023, the Applicant lodged an application seeking a review of the Reviewable Decision in the General Division of this Tribunal (G2). Therefore, the application for review was lodged within the nine-day period prescribed by s 500(6B) of the Migration Act.
Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which an applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the 84-day period started running from 4 January 2023, meaning that I must hand down a decision on or before 29 March 2023.
ISSUES
The issues that I need to determine are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether I am satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
THE HEARING AND THE EVIDENCE
The hearing of this application was held in person on 9 March 2023.
The Applicant was represented by his migration agent, Mr Mukesh Chand of Shiva's Migration Services. The Respondent was represented by Mr Ashley Burgess of Sparke Helmore Lawyers.
The Applicant’s aunt (A) and the grandmother (G) of his child (a minor daughter, D) gave evidence at the hearing by telephone.
I admitted the following documents into evidence at the hearing:
(a)email from G dated 30 January 2023 (Exhibit A1);
(b)excerpt titled, “Gender Based Violence” (Exhibit A2);
(c)email from youth justice officer dated 3 March 2023 listing the programs the Applicant has attended in detention (Exhibit A3);
(d)passport of the Applicant’s minor daughter, D, flight details and a letter from G dated 3 March 2023 (Exhibit A4);
(e)section 501 G-Documents, labelled G1 to G28, comprising pages 1-161 (Exhibit R1); and
(f)Respondent's Summons Bundle, labelled SB1 to SB5, comprising pages 1-468 (Exhibit R2).
The Applicant filed a Statement of Facts, Issues and Contentions (ASFIC) dated 8 February 2023 prior to the hearing. The Respondent filed a SFIC dated 22 February 2023. The Applicant filed submissions in reply dated 3 March 2023.
LEGISLATIVE FRAMEWORK
Migration Act
Subsection 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
i. paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
ii. paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Subsection 501(6)(a) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(Original emphasis.)
Section 501CA of the Migration Act further provides, in part:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
i.      a written notice that sets out the original decision; and
ii.     particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
i.      that the person passes the character test (as defined by section 501); or
ii.     that there is another reason why the original decision should be revoked.
(Original emphasis.)
Direction No 99
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 23 January 2023, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 99) under s 499 of the Migration Act, which commenced operation on 3 March 2023. This Direction replaced the previous Direction No 90: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (8 March 2021).
Paragraph 5.1 of Direction No 99 sets out “[o]bjectives”, with paragraphs 5.1(3) and (4) being relevant to the current application:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
(4)The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 of Direction No 99 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA”. The principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) 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 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in paragraph 5.2 of Direction No 99, when making a decision the decision-maker (in this case, the Tribunal – see definition of “decision-maker” in para 4(1) of Direction No 99) must consider the primary considerations listed in paragraph 8 of Direction No 99, and the other considerations listed in paragraph 9 where relevant (see para 6 of Direction No 99).
Specifically, paragraph 8 of Direction No 99 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)       whether the conduct engaged in constituted family violence;
(3)       the strength, nature and duration of ties to Australia;
(4)       the best interests of minor children in Australia;
(5)       expectations of the Australian community.
Paragraph 9 of Direction No 99 lists other considerations to be considered as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)        legal consequences of the decision;
b)        extent of impediments if removed;
c)        impact on victims;
d)        impact on Australian business interests
Guidance as to how a decision-maker is to apply the considerations in
Direction No 99 can be found in paragraph 7, “[t]aking the relevant considerations into account”, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
JURISDICTION
I will make some preliminary observations about the Tribunal’s jurisdiction to review the Reviewable Decision because issues of jurisdiction were raised by the Applicant in the ASFIC and at the hearing in the context of the Cancellation Decision being based on juvenile offending.
In the ASFIC at paragraph [33], the Applicant, through his representative, first conceded that he did not pass the character test.
His representative subsequently submitted, at paragraph [44] of the ASFIC, that the 28 August 2020 conviction should be disregarded altogether due to the decision in Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23 (Thornton). The submission was that s 501(6)(a) of the Migration Act was “not engaged for the mandatory cancellation of the applicant’s visa”. At the hearing, the Applicant’s representative also referred to sentencing remarks dated 27 May 2022 (when the Applicant was 19 years old) where the Magistrate referred to his Children’s Court record and stated, “I’m obliged not to take that into account” (R2/390; transcript/7).

I understand the essence of the Applicant’s submission to be that the mandatory Cancellation Decision was not legally effective (and the Visa should never have been cancelled) because a substantial criminal record cannot include juvenile offending.
This submission raises two questions which I will now discuss.
The first question is whether I should first consider whether the mandatory Cancellation Decision is legally effective as a precondition to the exercise of jurisdiction, or whether I can proceed on the basis that the Tribunal has jurisdiction because a reviewable decision has been made, regardless of whether it is a legally effective decision.
The second question I will address is whether Thornton is applicable, and more broadly, whether juvenile offences can be considered in assessing whether a person has a “substantial criminal record” for the purposes of the character test under s 501(7) of the Migration Act.
In XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6 (XJLR) Rares J, with whom Yates J agreed, provided guidance as to the first question.
The majority in XJLR distinguished the principle in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 that a “decision” under s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), is a ““decision in fact made”, regardless of whether or not it is a legally effective decision” (Rares J at [49]; Yates J at [91]).
Rares J, at [39], found “that s 501CA(1) depends on the existence of a legally effective decision under s 501(3A) as a precondition for the exercise of the power under s 501CA …”.
In similar terms, Rares J later stated at [57], “that a legally effective s 501(3A) decision is a jurisdictional fact that must exist for the purposes of s 501CA(1) in order to enliven the power in s 501CA(4).”
Thus, according to the majority in XJLR, the decision-maker must consider jurisdiction as a threshold question: “the delegate and the Tribunal had to form a view whether the precondition in s 501CA(1) had been met, which was a jurisdictional fact” (Rares J at [47]).
Rares J further explained, at [59]:
There is no merits review of the s 501(3A) decision available under the Act: rather, s 501CA proceeds on a statutory assumption, which is a jurisdictional fact, that the requirements of s 501CA(1) have been satisfied by a legally effective decision to cancel the visa. If the s 501(3A) decision to cancel the visa was of no legal effect because, in the words of s 501CA(1), it was not made under s 501(3A) (Plaintiff S157/2002 (2003) 211 CLR 476 at 506 [76]) then the delegate under s 501CA(4) and, later, the Tribunal under s 500(1)(ba) were not authorised by the Act to do anything because the visa remained in place and s 501CA(1) could not be satisfied. The exercise of functions under s 501CA depends on there being a decision made “under s 501(3A)” so that, by force of s 501CA(1) “this section” will then apply.
It is therefore appropriate for me to consider whether the Cancellation Decision made under s 501(3A) of the Migration Act was legally effective. If it is not, the precondition under s 501CA(1) would not have been met, and I will have no jurisdiction to hear this application.
Although reproduced above in the “Legislative Framework” section, for convenience, I will re-state the relevant sections again here, s 501(3A) of the Migration Act states:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
i. paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
ii. paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Subsection 501(6) of the Migration Act provides:
(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)); …
Subsection 501(7) of the Migration Act further provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; …
Subsection 501(12) of the Migration Act defines “imprisonment” and “sentence” as follows:
“imprisonment” includes any form of punitive detention in a facility or institution.
“sentence” includes any form of determination of the punishment for an offence.
On 28 August 2020, the Applicant was sentenced in the Perth Children’s Court to 14 months youth detention for “aggravated armed robbery” (R2/119). The Cancellation Decision was made on 18 August 2021 while the Applicant was serving this sentence (G25/108-109).
The Applicant relied on Thornton, in support of the submission that juvenile offending could not be considered, and therefore could not form the basis of the Cancellation Decision. Thornton concerned offending in Queensland. The relevant statutory provisions in Thornton were s 184(2) of the Youth Justice Act 1992 (Qld) (Youth Justice Act) which provided that, “a finding of guilt without the recording of a conviction is not taken to be a conviction for any purpose”; and s 85ZR(2) of the Crimes Act 1914 (Cth) (Crimes Act), which provided:
Division 2 – Pardons for persons wrongly convicted and quashed convictions
85ZR Pardons for persons wrongly convicted
(2)   Despite any other Commonwealth law or any Territory law, where, under a State law or a foreign law a person is, in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence under a law of that State or foreign country:
(a)   the person shall be taken, in any Territory, in corresponding circumstances or for a corresponding purpose, never to have been convicted of that offence; and
(b)   the person shall be taken, in any State or foreign country, in corresponding circumstances or for a corresponding purpose, by any Commonwealth authority in that State or country, never to have been convicted of that offence.
The Full Federal Court decided that the effect of these two provisions was that Mr Thornton’s convictions as a juvenile in Queensland could not be taken into account by the Minister. The Court’s reasoning was explained by SC Derrington J at [36]:
Although the term ‘pardon’ seems inapposite in the present context, s 184(2) of the Youth Justice Act is nevertheless an example of the type of state legislative provision expressly provided for in s 85ZR(2) as one ‘which removes or disregards the conviction altogether’, as was said by Kiefel J in Hartwig [v P E Hack [2007] FCA 1039] at [11], the effect of which ‘as to take away the fact of the conviction, as a pardon might do’ (Hartwig at [8]). Thus, the effect of s 85ZR(2) is that Mr Thornton is taken never to have been found guilty of any offence committed as a child and to prohibit the Minister from taking into account a conviction of a child where there has been an order that no conviction be recorded.
I agree with the Respondent’s submission that the Full Federal Court’s decision in Thornton can be distinguished from the Applicant’s situation. That submission is also consistent with the approach taken by the Tribunal in Batson and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 1715 where Senior Member Morris found that Thornton was not applicable in a Western Australian context (at [22]-[23]). As I have stated, Thornton involved juvenile offending in Queensland where s 184(2) of the Youth Justice Act applied. The applicable Western Australian legislation is different to the Youth Justice Act. The Western Australian legislation is the Young Offenders Act 1994 (WA) (Young Offenders Act).
The relevant section concerning when a conviction is to be recorded is s 55 of the Young Offender’s Act which provides:
Conviction, when to be recorded
(1) If the court —
(a)finds a young person guilty of a Schedule 1 offence or a Schedule 2 offence; or
(b)finds a young person guilty of any offence and imposes a custodial sentence,
the court is required to record a conviction unless it is prevented from doing so by subsection (5) or it is satisfied that there are exceptional reasons for not doing so.
(2) If the court finds a young person guilty of an offence other than a Schedule 1 offence or a Schedule 2 offence and does not impose a custodial sentence, the court is not to record a conviction unless it is satisfied that there are exceptional reasons for doing so.
…
(5)If a young person is found guilty of an offence and, under section 66 or 67, the court refrains from imposing any punishment, the court is not to record a conviction.
“Robbery” under s 392 of the Criminal Code Compilation Act 1913 (WA) (Criminal Code) is listed in Schedule 2 of the Young Offenders Act. Therefore, the Applicant’s 28 August 2020 “aggravated armed robbery” conviction pursuant to s 392(c) and (d) of the Criminal Code is a Schedule 2 offence and can be taken into account as a conviction.
Further, youth detention can be characterised as “imprisonment” because it is defined to include “any form of punitive detention in a facility or institution” (s 501(12) of the Migration Act).
Consequently, the Applicant could properly be regarded as having a substantial criminal record because he was sentenced to a term of imprisonment of 12 months or more (s 501(6) and 501(7)(c) of the Migration Act). This triggered the mandatory cancellation of his Visa (the Cancellation Decision) under s 501(3A) of the Migration Act.
I am therefore satisfied that the mandatory Cancellation Decision made under s 501(3A) of the Migration Act was legally effective, and that the precondition under s 501CA(1) has been met. Therefore, I find that I have jurisdiction to consider the issues of whether the Applicant passes the character test, and whether there is another reason to revoke the Cancellation Decision under s 501CA(4) of the Migration Act.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Minister may revoke the Cancellation Decision if the Minister is satisfied that the Applicant passes the character test (s 501CA(4)(b)(i) of the Migration Act).
As I explained in the previous section on jurisdiction, the Applicant does not pass the character test due to the operation of s 501(6)(a) of the Migration Act because he has a “substantial criminal record” as defined by s 501(7) of the Migration Act, having been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act). This is due to his “aggravated armed robbery” conviction for which he was sentenced to 14 months’ cumulative youth detention on 28 August 2020. As I explained above, this can be considered as a conviction, notwithstanding that the Applicant committed the offence as a juvenile.
As the Applicant fails the character test, the statutory power to revoke will only be enlivened if there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
PRIMARY CONSIDERATIONS
Protection of the Australian community (paras 8(1) and 8.1 of Direction No 99)
Paragraph 8.1(1) of Direction No 99 provides that:
(1)When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction No 99 then provides:
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paras 8.1(2)(a) and 8.1.1(1) of Direction No 99)
Paragraph 8.1.1(1) of Direction No 99 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.      violent and/or sexual crimes;
ii.     crimes of a violent nature against women or children, regardless of the sentence imposed;
iii.    acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i.      causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.     crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii.    any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv.    where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
I will first outline the Applicant’s juvenile offending and conduct, followed by his adult offending (R2/118-121). I have summarised the facts of the offences and conduct that the Applicant was asked about at the hearing.
Applying the Young Offenders Act, I will distinguish between offences and conduct. I do, however, note that paragraph 8.1.1(1) of Direction No 99 permits me to consider “criminal offending or other conduct to date”.
I have already outlined s 55 of the Young Offenders Act. The Court has also imposed an intensive youth supervision order (IYSO) on the Applicant on several occasions, as well as a conditional release order (CRO) on several occasions which the Applicant has breached. It is therefore helpful to outline the relevant provisions of the Young Offenders Act concerning those orders.
Section 98 of the Young Offenders Act, “Intensive youth supervision order, nature of”, provides that the Court can impose an IYSO:
The court may make an order to be known as an intensive youth supervision order imposing on the offender such conditions as it could impose by way of a youth community based order, except that the supervision conditions that may be imposed are not subject to the limits placed by the regulations on supervision conditions when imposed by a youth community based order.
Subsection 99 of the Young Offenders Act is titled, “Order may be made with or without custodial sentence”. Subsection 99(1) provides that “An intensive youth supervision order may be made with or without imposing on the offender a sentence of detention”.
Section 100 of the Young Offenders Act, “Order without custodial sentence” provides that “If the court makes an intensive youth supervision order without imposing a sentence of detention, the provisions of this Act apply as if it were a youth community based order unless it is otherwise provided”.
Section 101 of the Young Offenders Act provides:
Order with custodial sentence (conditional release order)
(1)If an intensive youth supervision order is made and a sentence of detention is imposed, the intensive youth supervision order is referred to in this Act as a conditional release order.
(2)If the court makes a conditional release order, the offender is to be released from detention under the sentence as soon as the sentence would have commenced if there were no conditional release order.
(3)Time during which the offender is released under the order does not count as time for which the offender is serving the term of detention.
(4)The offender only becomes liable to serve the term of detention, or a portion of it, if the order is cancelled.
Juvenile “offending” that can be regarded as conduct
Applying the above provisions of the Young Offenders Act, the following can only be considered as “conduct”. This is because, applying s 55 of the Young Offenders Act: the Court did not record a conviction because they were not Schedule 1 or 2 offences; the Court did not impose a custodial sentence, or the Court imposed no punishment. I have also included offences where the Court has imposed an IYSO without a custodial sentence (s 99 and 100 of the Young Offenders Act):
(a)“Possess a prohibited drug (cannabis)” committed on 19 July 2019. The Applicant appeared in Court on 23 October 2019 and received no punishment due to time in custody.
(b)“Breach of bail undertaking” committed on 23 January 2020. The Applicant appeared in Court on 21 February 2020. Again, the Applicant received no punishment due to time in custody.
The Applicant was released on bail on 30 December 2019 after signing a bail undertaking. Part of the undertaking was that he would appear in the Children’s Court on 23 January 2020. He failed to appear, and an arrest warrant was issued. He was arrested on 23 January 2020 (R2/156; transcript/28).
(c)“Home burglary and commit” committed on 11 January 2020. The Applicant appeared in Court on 24 March 2020. The Court imposed an IYSO for eight months, concurrent.
The Applicant was with a group of friends when he jumped over a fence that backed onto a laneway and entered a home through a large glass door that had been left open. The Applicant was disturbed by the victim who attempted to take hold of the Applicant. The Applicant got away having managed to steal some alcohol from the property (R2/79; transcript/24).
(d)“Being armed or pretending to be armed in a way that may cause fear” committed on 30 December 2019, and for which the Applicant appeared in Court on 24 March 2020. Again, the Court imposed an IYSO for eight months, concurrent.
The Applicant was with a group of five teenage friends when an adult male approached them. The adult was upset that the Applicant and his friends had been harassing and bullying his teenage son earlier that day and on a previous occasion. The Applicant stepped forward and told the adult to “back off”. The Applicant took a black metal tomahawk out of his bag and said, “I’m not messing around”. The adult male and his son were in fear for their safety and left (R2/78; transcript/23).
(e)“Breach of an IYSO”, (being the IYSO imposed for an “aggravated robbery offence” on 23 October 2019 - see below in the section on juvenile offending that can be regarded as criminal offending), committed on 1 June 2019. The Applicant appeared in Court on 24 March 2020. The Court cancelled the Applicant’s IYSO and imposed another IYSO for eight months, concurrent.
(f)Three offences of “Breach of IYSO (order of 24.3.20)” committed on 1 June 2019 (resulting in the Court cancelling the IYSO), 30 December 2019, and 11 January 2020. On 22 April 2020, the Court imposed 10-month concurrent CROs for each of these offences. I note that, if a CRO is cancelled, the offender has to serve the term of detention or a portion of it as a custodial sentence (s 101(4) of the Young Offenders Act). However, as the offender is released as soon as the order is made (s 101(2) of the Young Offenders Act), I do not think it is a custodial sentence as contemplated by s 55(1)(b) of the Young Offenders Act, where a conviction is to be recorded. These breaches are therefore best characterised as conduct, rather than offending.
(g)“Without lawful excuse trespassed on a place” committed on 11 July 2020. The Applicant appeared in Court on 28 August 2020. The Court imposed no punishment due to time in custody.
(h)“Stealing” committed on 18 July 2020. The Applicant appeared in Court on 28 August 2020. Again, the Court imposed no punishment due to time in custody.
Juvenile offending that can be regarded as criminal offending

The following offences can be considered as criminal offending, applying s 55(1) of the Young Offenders Act. That is, the court was required to record a conviction because they were Schedule 2 offences, or the Court found the Applicant guilty and imposed a custodial sentence:
(a)“Aggravated robbery” under s 392(d) of the Criminal Code, which falls within Schedule 2. This offence was committed on 1 June 2019, and the Applicant appeared in the Perth Children’s Court on 23 October 2019. The Applicant received an IYSO for six months, concurrent.
The Applicant and a group of male friends approached the victim on a city street who had a bottle of whiskey valued at $150. A co-accused of the Applicant’s had a conversation about the whisky with the victim. The victim and the person he was with moved about 15 metres away to wait for a taxi. The Applicant and his co-accused friends decided to take the whiskey. The Applicant grabbed the bottle out of the victim’s hands and ran away while the other males assaulted the victim (R2/5-6 and 55; transcript/22).
(b)“Aggravated robbery” under s 392(d) of the Criminal Code. This offence was committed on 3 or 4 April 2020, and the Applicant appeared in Court on 22 April 2020. By committing this offence, the Applicant breached the IYSO imposed on 24 March 2020. He was sentenced to a CRO of 10 months, concurrent.
The Applicant and a co-accused were outside a suburban supermarket. They got into a car and passed the victim’s group who were walking down the road. The vehicle turned around and drove back towards the victim. The Applicant got out of the vehicle and asked the victim for her mobile phone, but she refused. The Applicant knocked the victim’s chips and handbag she was holding to the floor and the contents spilled onto the floor. The co-accused picked up the victim’s purse containing $150 cash, a gift card and phone, ran back to the car and drove away (R2/143; transcript/25-26).
(c)Four “Breach of a JCRO (order of 22.4.20)” committed on 1 June 2019, 30 December 2019, 11 January 2020 and 3 April 2020. The Applicant appeared in Court on 28 August 2020. The supervision order was cancelled, and the Applicant was sentenced to one month concurrent, four months’ cumulative, three months’ concurrent and six months’ concurrent detention.
(d)“Aggravated home burglary and commit” and “aggravated armed robbery” committed on 13 July 2020, for which the Applicant appeared in Court on 28 August 2020. The Court imposed six months’ concurrent detention for the “aggravated home burglary and commit” offence and 14 months’ concurrent detention for the “aggravated armed robbery” offence.
The Applicant and a co-offender entered a residential home. They obtained knives from the kitchen. They entered a bedroom where the female victim was sitting up in bed. She screamed as the Applicant entered the bedroom and ran outside screaming for help. Her male partner came into the bedroom. The Applicant demanded money and the male victim said he did not have any. The Applicant demanded his mobile phone. The co-offender took the male victim’s phone. He refused to provide his pin number when asked. The male victim yelled at the Applicant and his co-accused to go away and began pushing them towards a sliding door to exit. Whilst trying to force the Applicant out of the house the Applicant cut the male’s hand with a knife which required 10 stitches (R1/119-120 and 136; transcript/31-32).
(e)“Aggravated robbery” committed on 29 July 2020. The Applicant appeared in Court on 28 August 2020. The Court imposed seven months’ concurrent detention.
The Applicant was in a shopping mall in the city with some associates. The Applicant and another male co-offender approached the victim who agreed to go to another location to smoke some cannabis. All three went to a carpark stairwell. They stopped to smoke some cannabis. The victim took out his wallet to remove some cannabis from it. The Applicant snatched the wallet and hid it behind his back. The victim tried to retrieve his wallet. The victim grabbed the Applicant in a choke hold to prevent him from leaving with his wallet. As the Applicant was trying to break free from the victim, the co-accused assisted in overpowering the victim and they fled with his wallet (R2/131; transcript/35-36).
(f)“Aggravated armed robbery” committed on 15 July 2020. The Applicant appeared in Court on 28 August 2020. The Court imposed four months’ concurrent detention.
The Applicant, who was with another teenage co-offender, was walking between 3 and 4am and approached the victim, a 15-year-old female. The Applicant asked to use her mobile phone. She handed him the phone and he took it and began walking away. She asked for her phone back. The co-accused showed the victim a knife sticking out of his sleeve and said, “I’ve got a knife and he’s got a shank” (referring to the Applicant) (R2/141; transcript/34).
Adult offending
Additionally, the Applicant has the following convictions recorded for criminal and traffic offences as an adult for which he appeared in the Magistrates’ Court on 27 May 2022 (R2/118):
(a)“Stealing from person of another” committed on 18 June 2021. The Court imposed a $500 fine.
The Applicant was in a carpark in a car with four other people. There was another carload of five people in another car. The vehicles were side by side, and some of the occupants of each car began talking and joking. The occupants of each of these cars went up to another carload of four people and started rummaging through their car. The Applicant asked the victim for money for fuel and the victim said he did not carry any cash. The Applicant joked with the victim, frisking him for his wallet. Another male slapped the victim’s friend in the face. The Applicant put his hand in the victim’s pocket and pulled out his wallet. The victim demanded his wallet back and had hold of the Applicant who brushed away his hand. The Applicant’s co-accused punched the victim in the face as he was trying to get his wallet back from the Applicant. Further punches were thrown within the group. The Applicant and his associates ran back to their car. The wallet and its contents were later found by police in the door pocket of his car. The incident was filmed on a mobile phone by one of the Applicant’s female friends (R1/125 and 379-380; transcript/41-42).
(b)“No authority to drive (never held)” and “driver failed to stop (circumstances of aggravation”, also on 18 June 2021 (R2/122). The Magistrate imposed a $5000 fine and a licence disqualification for two years for these offences (R2/395).
Police observed the Applicant’s vehicle pull out in front of another vehicle, causing it to break heavily. Police activated lights and attempted to intercept the Applicant’s vehicle. The vehicle did not pull over. Police activated emergency sirens. The Applicant’s vehicle accelerated, drove through a residential area, reaching speeds of 80 kilometres in a 50-kilometre zone. The facts read to the Court state that the Applicant continually crossed onto the wrong side of the road with his vehicle. At the hearing, the Applicant denied this, stating his car hit a roundabout and spun. The Applicant struck a metal bollard while driving through a carpark and alighted on foot. He was chased on foot and police lost sight of him in bushland. The police were looking for the Applicant for approximately a month before he was arrested (R1/380-381; transcript/42-47).
(c)“Possessed a prohibited weapon”, “possess a prohibited drug (cannabis)” and “give false personal details to police”, committed on 1 July 2021. The Court imposed a $300 global fine.
The Applicant attended a towing yard to collect his seized vehicle. Police attended and asked for details to verify his identity. The Applicant gave a false name, but when police checked the name there was an outstanding arrest matter for that person. When informed of this the Applicant admitted he had given his cousin’s name because he was scared. Police undertook a search before taking the Applicant to the police station and found an electric shock weapon in his pants pocket. They also found a clip seal bag on the Applicant with approximately 1.1 grams of cannabis (R2/128-129).
The Applicant’s offences do not fall within the categories that Direction No 99 states should be “viewed very seriously” (para 8.1.1(1)(a) of Direction No 99) although those categories are not exhaustive.
However, the “aggravated home burglary and commit” and “aggravated armed robbery” offences very nearly fall within the category of “violent offences” because they involved the female occupant being threatened with a knife and the male occupant receiving a cut to his hand which required 10 stitches. Even though the Applicant did not realise that he had cut the man’s hand (R2/45), the fact that both the Applicant and a co-offender had armed themselves with knives could have resulted in fatal consequences. In addition, the female occupant was clearly terrified and remained “nervous and scared”. The sentencing Judge stated that the offending “has had an enormous effect” on the male victim who had lost his employment. He described the victims as having recently come to Western Australia, that they had no support network, and that the Applicant “had ruined it for them” (R2/45). I would therefore categorise these offences as being very serious.
Similarly, the “aggravated armed robbery” committed on 15 July 2020 where the victim was a 15-year-old female who was threatened by the Applicant’s co-offender with a knife, does not quite fall within “crimes of a violent nature against women”, but comes close because the Applicant was in company, with a co-offender who was armed, and because the victim was a 15-year-old female who was robbed in the early hours of the morning. Therefore, that offending should be regarded as being serious.
The Applicant has not engaged in any of the types of other “serious” conduct stated in paragraph 8.1.1(1)(b) of Direction No 99.
The Applicant’s other “aggravated robbery” offences were committed on 1 June 2019 (where he stole the bottle of whisky), 3 or 4 April 2020 (where he stole the female victim’s handbag), and 29 July 2020 (where he stole the wallet of the man he was smoking cannabis with in the carpark stairwell). The “aggravated” aspect of these offences was that the Applicant was in company, but they are, in my view, of a low to moderate degree of seriousness, when compared to the offences that I have categorised above as serious and very serious. Similarly, I would classify the “stealing from person of another” offence committed on 18 June 2021 (where the man’s wallet was stolen in the carpark after some joking around), as being a low level of seriousness, which is also reflected in the Applicant receiving a fine.
This Tribunal has often regarded driving offences as being serious (see Senior Member Poljak in Kohli and Minister for Immigration and Border Protection [2017] AATA 1326 at [20]). The Applicant’s “driver failed to stop (circumstances of aggravation)” offence, is also serious because the Applicant narrowly avoided a collision with another vehicle, was speeding to evade police, and driving erratically, including on the wrong side of the road. This could have had fatal consequences for other road users and pedestrians. The Applicant was also driving without a licence (hence the “no authority to drive (never held)” offence). Drivers are licenced to make sure that they are aware of the road rules and are competent to drive safely. Again, this is to ensure the safety of other road users, passengers, and pedestrians. Although less serious than the “driver failed to stop (circumstances of aggravation)” offence, it does tend to indicate a disregard for laws and a disregard for the safety of innocent members of the community who share the roads.
Some of the Applicant’s juvenile offences can be regarded as less serious. Those include, in my view, those that I have categorised as “conduct” above. For example, offences such as “trespass”, “stealing”, “possess a prohibited drug (cannabis)” and “breach of bail undertaking” when the Applicant failed to appear in court. Even the “home burglary and commit” conduct of 11 January 2020 is less serious than his other “aggravated home burglary and commit” offence because he was not armed and fled when confronted. The “being armed or pretending to be armed in a way that may cause fear” offence involved the Applicant showing a tomahawk to the victim to scare the victim off. The lesser penalties that were imposed for these offences, as well as no penalties for time spent in custody and the imposition of IYSOs, are also suggestive that these offences are of a lower level of seriousness.
The breaches of IYSOs in the “conduct” section above, are slightly more serious because they were breached because of the Applicant’s reoffending. One of them was breached when the Applicant committed the “aggravated robbery offence” on 1 June 2019 (involving the bottle of whisky) with the penalty involving a slightly longer IYSO being imposed (that is, eight months when the original was for six months). The three breaches of IYSO were more serious because they resulted in the imposition of CROs, which are more serious penalties because they are an intensive youth supervision order with a sentence of detention being imposed (s 101(1) of the Young Offenders Act). Thus, even though they are “conduct”, these breaches are of a moderate degree of seriousness.
I now turn to the sentences imposed by the courts (para 8.1.1(1)(c) of Direction No 99). When the Applicant came before the Court on 28 August 2020, he was sentenced to detention for 18 months, which was comprised of cumulative and concurrent sentences. This included the sentence of 14 months cumulative detention for the “aggravated armed robbery” offence which was the basis for the Applicant’s Visa being cancelled and resulted in a knife injury to the victim’s hand. This seriousness of the offences for which the Applicant received sentences of detention on 28 August 2020 is reflected in the length of the detention imposed. Indeed, when sentencing the Applicant on 28 August 2020, the sentencing Judge stated that (G6/42):
If you commit offences like this as an adult, you can expect to go to jail immediately and for a long time. The sentences that are imposed on adults for offending like this, particularly that very serious one with the knife inside someone’s house. The judge would sentence you to 7 or 8 years without blinking.
Imposing sentences of imprisonment are usually a last resort in the sentencing hierarchy (PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22]), especially for a young person, and show that the Court regarded the offending as being serious enough to warrant a custodial sentence.
The Applicant received fines for his adult offending when he appeared in Court on 27 May 2022. This indicates that offending was of a less serious nature. The fines for his driving offences committed on 18 June 2021 were more substantial (a global fine of $5000, plus a two-year disqualification). The Magistrate acknowledged that this was a “massive fine” for a young man of 19 years of age (R2/392). This indicates that offending was of a more serious nature.
I now turn to the frequency of the Applicant’s offending, and whether there is any trend of increasing seriousness (para 8.1.1(1)(d) of Direction No 99). The Applicant’s offences and conduct were committed over a period of approximately two years between 1 June 2019 and 1 July 2021 from when he was nearly 17 years of age through to when he was 19 years of age. These included 20 offences and conduct as a juvenile, and four criminal and two driving offences as an adult. The number of offences and occasions of conduct are frequent. Whilst there is an overall trend of increasing seriousness in his juvenile offending and conduct, culminating in the “aggravated armed robbery” offence for which the Applicant’s Visa was cancelled, his adult offending is far less serious.
There is a slight cumulative effect of repeat offending given the number of offences and occasions of conduct committed, numerous court attendances and sentences of detention. This would impose some burden on the resources of police, the courts, and corrective services (para 8.1.1(1)(e) of Direction No 99).
There is no evidence that the Applicant has provided false or misleading information to the Department of Home Affairs (Department), including not disclosing prior criminal offending (para 8.1.1(1)(f) of Direction No 99).
Paragraph 8.1.1(1)(g) of Direction No 99, requires me to consider whether the Applicant previously received any formal or other written warnings that further offending may affect his migration status. He has not received any such warnings.
The Applicant’s offending did not occur in another country and so paragraph 8.1.1(1)(h) of Direction No 99 is not relevant.
In summary, the Applicant’s offences range from those of a low to moderate degree of seriousness through to the very serious offence of “aggravated armed robbery” committed on 13 July 2020 which resulted in the Cancellation Decision. The Applicant’s offending and conduct was frequent but most of it occurred when he was a juvenile over a relatively short period. There is a trend of increasing seriousness in his juvenile offending and conduct, but his adult offending is of a less serious nature and there is a slight cumulative effect.
Overall, I find that paragraph 8.1.1 of Direction No 99, the nature and seriousness of the conduct, weighs moderately against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No 99)
Paragraph 8.1.2(1) of Direction No 99 provides:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of Direction No 99 provides, in part, in relation to assessing risk:
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
…
Nature of the harm (para 8.1.2(2)(a) of Direction No 99)
Broadly speaking, I am required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires a consideration of the nature of the harm to individuals or the Australian community should he engage in further criminal or serious conduct (para 8.1.2(2)(a) of Direction No 99).
If the Applicant was to commit further aggravated armed robbery or aggravated home burglary offences with a weapon, it could result in psychological distress to victims, physical injury, impairment or even loss of life.

Dishonesty offences including aggravated robbery and stealing can cause psychological distress to victims and financial harms in the form of increased costs to the community, including increased insurance premiums.
Additionally, driving offences can potentially be very serious and can result in physical and psychological injuries to innocent road users, as well as fatal consequences. Licensing rules exist to ensure that persons driving cars are appropriately qualified and safe to do so. The Applicant has driven unlicensed and failed to stop for police after a near collision and which included veering onto the wrong side of the road. Given that an underlying objective of these laws is road safety, further contraventions of such laws could have serious consequences.
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction No 99)
Next, I am required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence (para 8.1.2(2)(b)(i) and sub-para (ii) of Direction No 99).
The Applicant has had significant problems with alcohol. He was under the influence of alcohol, and sometimes cannabis, when he committed most of his offences (transcript/20, 29 and 42), other than the “no authority to drive (never held)” and “driver failed to stop (circumstances of aggravation)” offences on 18 June 2021. At the time he committed the “aggravated armed robbery” and “aggravated home burglary and commit” offences on 13 July 2020 he was under the influence of alcohol and prescription medication including Xanax (transcript/31).
The Applicant was able to show some insight into the link between his alcohol use and his offending, and what motivated his drinking. He stated that, with respect to the 13 July 2020 offending, he believed that he had a dependency on alcohol “to cope with stressors in my life at that point of time, being issues with my relationship with M [the mother of his child], having a baby girl with no ability to provide for her and the stress of failing her” (G10/71). The Applicant also described using alcohol and cannabis “to deal with problems” in his life (G10/72). In doing so, the Applicant also expressed remorse for his offending (G10/73):
My criminal history includes charges I am completely ashamed of. I take entire responsibility for my offending and understand that this behaviour was absolutely wrong. I believe that my use of alcohol and cannabis, along with my personal circumstances at the time contributed to my offending and I have taken many steps to address this and make sure that I do not commit any more offences in the future.
I note that the Applicant’s offending occurred from when he was nearly 17 to the age of 19 when he was in the company of negative peers. I thought that the Applicant showed a level of maturity at the hearing. He was honest and took responsibility for his offending. Although he disagreed with some minor aspects of the facts of his offending, I did not think that this was an attempt to minimise his offending. The following evidence from the Applicant also demonstrated some maturity and insight (R1/72):
If the cancellation of my visa is revoked, I will not make the same mistakes I have previously made. I am now in a different position where I have matured, I can see the future I want in Australia and am confident that with the support of family I can succeed in achieving this and being an upstanding member of the Australian society. My offences have taken place because of my choices to surround myself with negative people, my problems with alcohol and my immaturity. My offences I received detention for happened when I was going through issues in my life such as problems in my relationship with M and didn’t know how to handle the new responsibility of being a father. I have taken a number of counselling, courses and groups that have been made available to me in Banksia Hill Detention Centre and Casuarina Prison, which have enabled me to reflect on the lifestyle choices that lead me to offend. I have previously needed to use alcohol and cannabis to deal with problems but I know that I don’t have to do this anymore, which is shown through my number of clean urinalysis while I was on a Supervised Release Order. I also recognize that I need to change my life for the betterment of my daughter and my family and stay away from negative influences that put me in these situations in the first place.
He is also willing to seek help in the community (transcript/18), although I note that there appear to be no specific plans in place:
… I’ve got a kid, I need to step up my game and - yes, I’ve been having people outside that’s willing to help me change and willing to just be there for me and I really need support this time and yes, I’ve got a connection with people that’s willing to help me and I’m willing to help myself to change and be a better person.
The Applicant’s aunt, A, also stated in a letter dated 1 September 2021 that (G19/99):
I know [the Applicant] is able to change his ways and never do crime again. I know he deeply regrets what he has done and the hurt he has caused his victims.
When asked about this at the hearing, A stated (transcript/58):
MR CHAND: A, you also said in one of the sentences that, “I know [the Applicant] is able to change his ways and never do crime again”?
A:                   Yes.
MR CHAND: How do you know it?
A:I know because I know him. He’s like a son, because he’s my sister’s son, and I know that he’s capable of changing. Everyone can change if you have a second chance to, and from the time that he has been behind bars, he has learnt his lesson and he’s willing to change. I know he has changed in him. Because he’s not a bad person. He just made a few bad mistakes, and hang out with the wrong crowd. But he’s capable of changing, I know that.
MR CHAND:   You also go on to say that, “I know he deeply regrets what he has done and the hurt he has caused his victims”; how do you know that?
A:Because he told me that. Whenever I’m talking to him, he cries on the phone that he is very sorry, he didn’t mean to do it. He was just influenced by different people. He was not okay that day. And because, look, we have been impacted by war, so this child did not grow up with people - I’m sorry. I’m a bit emotional.
…
We have been so much impacted by war. There’s a lot that have been going on in our life. We didn’t have a male figure to help him. And he deeply regret it. He’s always crying. He told me if he can turn back the hands of time, he will make a right decision. He would never have done what he has done, because he has hurt not just the victim, but his family, and his little ones that he loves so much. I’m sorry about that.
In a letter dated 31 August 2021, the Applicant’s mother stated (G20/100):
In my discussions with [the Applicant], I know he deeply regrets these offences and wholeheartedly wishes to change this behaviour. I believe [the Applicant’s] offences were caused by issues with alcohol, negative influences from peers, lack of male role models throughout his life and issues with his partner at the time (the mother of his child), M. I believe the threat of deportation back to our country is enough to push [the Applicant] to change and cut off his negative peers. [The Applicant] continues to partake in Psychological Counselling with Youth Justice to work on what led him to offending and tells me frequently he is sorry for what he did. [The Applicant] wishes to attend a course to obtain employment, get back into rugby league and stay away from his negative peers. [The Applicant] can achieve this through residing with my sister, A in Victoria. [The Applicant] has previously resided with A and has never offended in Victoria, nor in her care. [The Applicant] and A share an extremely close relationship, where he is often referred to as the “favourite nephew”.
At the hearing, G, the maternal grandmother of the Applicant’s daughter, also gave evidence that she thought he had matured (transcript/65):
MR CHAND: … you say that you’ve noticed a maturity in him; what did you actually see?
G:Look, talking to [the Applicant], I realised he was different. He sounded different. He sounded more mature than he was, you know, when he was living with us. Because those times, when you talk to [the Applicant], he will basically not really respond. When you talk to him, it didn’t sink in. But when I was talking to him recently, I noticed the difference and I actually mentioned it to him. I said to him, “Oh my goodness, you’ve grown up. You are more mature”, and he said to me, yes, he now knows better. That was his answer to me when I spoke to him. He was in the detention centre at the time. So I’ve noticed a difference.
The Applicant’s remorse, his insight into his offending and alcohol and drug use, his maturity, the cancellation of his Visa, time in immigration detention and the prospect that he may be removed to Liberia (a country that is foreign to him and that he cannot remember), away from his daughter and family, are likely to provide the Applicant with motivation not to offend. Although there appear to be no firm plans in place for counselling in the community, the Applicant is willing to seek help from others and has plans to work, join a rugby club and not to associate with negative peers. The Applicant also wants to have a role in his young daughter’s life and wants to be a responsible father to his daughter which will provide him with further motivation not to offend.
The support that he has from G and A will also help him to reintegrate into the community and not to reoffend, particularly if he can live with his aunt, A, in Melbourne, a place where he has never offended, and where he will be away from negative peers. However, at the hearing the Applicant said he may live with his aunt, A, in Melbourne, or with his girlfriend in Perth who has two children. Perth is probably a less protective place for the Applicant because it is where he committed his offences and where his negative peers were. I do not have any information about the Applicant’s girlfriend or her children to be able to assess whether they would be a protective influence.
There appear to be some issues with the Applicant’s relationship with his mother in the past. She provided a statement but did not give evidence in these proceedings. The evidence of G suggested that his mother was not supportive of him. G said that the Applicant lived with G and her daughter M (the mother of D) “when [the Applicant] was made homeless by his mother” and that the Applicant’s mother “did not care, [and] didn’t contribute to his upkeep” (transcript/57). This is also mentioned by the sentencing Judge on 28 August 2020 who referred to there being conflict with his mother, but that she was a person with “good values that [the Applicant] can learn a lot from” and that the Applicant had “disappointed her over and over again by [his] behaviour” (G6/45-46). It therefore seems to me that the Applicant’s mother is a prosocial person and that she would be a positive influence on him if he was to rebuild the relationship with her.
The Respondent noted that the Applicant had been given opportunities as a juvenile for rehabilitation in the community by being placed on numerous IYSOs and CROs, and that he did not adequately engage with that rehabilitation, and indeed breached those orders on several occasions. In addition, he was also undeterred by periods in custody (including short periods on remand), and there was a pattern of reconnecting with negative peers, drinking and reoffending shortly after being released. This pattern is concerning however, it may now be somewhat mitigated by the Applicant’s insight and maturity and the impact of his Visa cancellation and the prospect of deportation. It is concerning that he reoffended as an adult within three weeks of release from detention, although the sentencing Judge seemed to have faith in the Applicant’s prospects of rehabilitation, stating that, “I have every faith in you, [Mr Applicant], that you can turn this around and be better and do better, and live better” (R2/395).
The Applicant also engaged in rehabilitative courses whilst in juvenile detention. These were listed in an email from an acting senior youth justice officer from the Department of Justice (A3) as follows:
Offence-Specific Counselling With Youth Justice Psychological Services.
Emotional Management Program (a program run by Youth Justice Psychological Services – focusing on emotional awareness, unhelpful thinking and offending cycles).
Right Track Program (Run by the Public Transport Authority – focuses on the rights and responsibilities regarding the use of public transport).
Hip Hop 101 (run by Optamus Education – Designed to utilise the therapeutic nature of music and emphasize strength-based outcomes, group work, cooperation and self-expression.
Health in Health Out (run by Hepatitis WA - Information program on blood borne viruses)
Love Bites (run by Beyond YJS - Program providing education relating to family domestic violence and sexual assault, encouraging respectful relationships).
180 Degrees Program (Run by Wungening – Program for young people with a history of substance misuse, with a strong emphasis on understanding alcohol and moving toward a pro-social lifestyle).
Aussie Optimism (Run by Beyond YJS – Teaches young people to identify emotions in themselves and others, with tools to change this emotions. Such as self-talk, styles of thinking and breaking thinking habits).
Australian Army Cadets (Run by department of defence – The program has been tailored to the young people of Banksia Hill [juvenile detention centre] and aimed to develop skills and confidence in young people).
(As original.)
The email also confirmed that while subject to a supervised release order (although it was unclear when), the Applicant had attended the following programs:
Motivation Foundation (Certificate II in Civil Construction and Certificate II in Resources and Infrastructure).
Bunuru Program (Certificate I in Industrial Skills).
Offence specific counselling with Youth Justice Psychological Services.
The Applicant could “not really” recall completing the 180 Degrees Program. He recalled the Emotional Management Program was about “controlling your emotions” and could not recall the Aussie Optimism course. He recalled undertaking counselling which he said covered controlling emotions and anger (transcript/39-40).
However, despite completing these courses, the Applicant went on to commit further offences, including his adult offences.
Shortly after he committed his adult offences on 18 June 2021 and 1 July 2021, but before he was sentenced on 27 May 2022, letters of support were written for the Applicant. These were:
(a)A letter from a psychologist on 20 August 2021, and a statutory declaration of the same date (G15/85-86) who had worked with the Applicant over a two-month period in October to November 2020. She described the Applicant as “working hard to try to improve his situation and develop skills to assist him in leading a law-abiding lifestyle” and that he “has demonstrated an ability to lead a prosocial lifestyle and function as a contributing member of society when he has the appropriate supports and structures in place”.
(b)A statutory declaration from a clinical psychologist dated 7 September 2021 (G16/87) which stated that he “participated in 28 contacts for the purpose of therapeutic intervention” and that he “described strong motivation to address his antisocial behaviour, identified pro-social future goals and reported engagement in employment and education during his remand in prison.” She continued to give the opinion that the Applicant’s “young age and openness to treatment remain positive and protective factors in relation that support his ability to change and maintain a prosocial lifestyle”.
(c)A statutory declaration from a youth worker from the youth justice reintegrative program, Beyond YJS, dated 8 September (year not stated) who had worked with the Applicant from September 2020 to April 2021 when he was in juvenile detention (G17/91). The youth worker stated, amongst other things, that if the Applicant were to engage in rehabilitation programs in adult prison and on release, and engage in construction industry training post-release, “I believe that [the Applicant] would stay on track and make something of himself” (G17/92).
(d)A letter and statutory declaration dated 20 August 2021 from a social worker who worked with the Applicant in a therapeutic capacity in late 2020 (G18/96-97). She described his “resilience, ongoing commitment to living a prosocial lifestyle and determination to contribute meaningfully to the community”.
(e)A letter from a senior case manager at the juvenile detention centre dated 23 August 2021 (G21/102), who stated that she had been working with the Applicant since 16 March 2020. She stated that during her engagement with the Applicant, it became “evident that he was able to demonstrate a notable capacity to effect positive changes for himself by way of engaging in a positive manner with staff and other young people, actively participating in rehabilitative programs and taking advantage of all opportunities presented before him in the Centre”. She continued to state her opinion that many of the poor choices that the Applicant made “were consistent with his developmental age”.
(f)A letter dated 25 August 2021 from his housing support worker (G22/104) who wrote that the Applicant was a:
… self motivated individual and I believe he has the ability to become an essential part to his community if he were to develop and access interests relating to him. Whilst in the community, [the Applicant] often struggled with direction for future employment/education goals and what he wanted for himself. If [the Applicant] were able to establishing [sic] this, I believe the question of reoffending would decrease significantly.
(g)A letter dated 11 November 2021 from a youth justice officer who supervised the Applicant as part of his supervised release order granted on 29 April 2021 (G23/105). He described the Applicant as “a young man who had the capacity and willingness to change”, described the psychological counselling sessions that the Applicant had undertaken, the Applicant taking part in psychological programs, and his enrolment in a Certificate II in Civil Construction. The youth justice officer further stated that during his time in custody, the Applicant kept in touch with his daughter in “any way he could“ including via Skype calls, telephone contact and mail. He further stated that the Applicant had “voiced his intention and his ability to be a pro-social member of the community to provide for his daughter and be a pillar for her upbringing”. He also stated that the Applicant was “a young man who has the capacity to be a positive and productive member of the Australian society” (R1/106).
Despite the Applicant reoffending after completing rehabilitation and counselling, I find that these references should be given some weight. They are from professionally qualified psychologists and youth workers who have worked with the Applicant. Their evidence collectively tends to suggest that the Applicant is willing to change, has the ability to do so, that his young age and immaturity had played a role in his offending behaviour, and that he is capable of rehabilitation. They also lend support to the Applicant’s desire to care for his daughter as being a protective factor.

Although the Applicant could maintain contact with D by telephone or via the internet (such as Skype) if he is able to access such communications in Liberia, these communications would be a poor substitute for D having her father physically present in her life and to be involved in her upbringing. It is also unlikely that D would be able visit the Applicant in Liberia for the foreseeable future. Even if the Applicant were to move interstate, his ability to remain in Australia would enable him to maintain more frequent and meaningful contact with D. It is likely D will suffer emotional detriment if the Applicant is not physically present in her life in Australia (para 8.3(4)(d) of Direction No 99).
D’s grandmother, G, currently fulfils a parenting role but she is not willing to do so indefinitely. It is unclear when D’s mother, M, will return from overseas and be able to resume caring for D. In this scenario, D’s best interests are better served by the Applicant being able to remain in Australia where he can assist with her care and be involved in her upbringing (para 8.4(4)(e) of Direction No 99).
Given her young age, there are no known views of D (para 8.4(4)(f) of Direction No 99).
There is no evidence that D has been or is at risk of being abused or neglected by the Applicant (para 8.4(4)(g) of Direction No 99). There is no evidence that she has experienced any physical or emotional trauma from the Applicant’s conduct (para 8.4(4)(h) of Direction No 99).
After considering and weighing the factors in paragraphs 8.4(4)(a) to (h) of Direction No 99, which include the relationship being parental, and that D is cared for by her grandmother and does not currently have a parent present to care for her, the Applicant’s ability to be a positive role model and the length of time until D turns 18, I find that revocation of the Cancellation Decision is in the best interests of D. I further find that her interests weigh strongly in favour of the revocation of the Cancellation Decision.
Minor cousins
The Applicant has the following minor cousins who may be affected by a decision of this Tribunal:
(a)The Applicant’s aunt, A, has three minor children. They are a seven-year-old daughter, DA; six-year-old daughter, RA; and a one-year-old son, JA. These children are the Applicant’s cousins. They live in Melbourne.
(b)The Applicant’s adopted mother, AM, has a seven-year-old son, V, who is the Applicant’s cousin. V lives in Perth.
There is minimal evidence regarding the Applicant’s minor cousins. I will outline some of the information concerning them that is before me.
The Applicant has met DA and RA but has not met JA yet. He stated that he looked after DA a lot when he was growing up in Sydney when his aunt needed him to look after DA. The Applicant lived with V when he was living at home with his mother. He said that he speaks to all the children twice a week. The Applicant stated that he has a “good bond” with V and that they used to play sport together. The Applicant stated, “I support him with anything he needs and be there for him” (transcript/52; G9/64). In her written statement the Applicant’s mother said that it would be “incredibly devastating” for the children if the Applicant was removed from Australia (G20/100).
The Applicant’s relationship with his cousins is non-parental. He has not seen DA and JA since they were young children and has not met JA yet. He used to live with V who he regards as a brother, but his contact with V has been interrupted by detention and imprisonment (para 8.4(4)(a) of Direction No 99).
There are some 11, 12 and 17 years until the four children turn 18. This is a substantial amount of time for each of the children. The Applicant is likely to be a positive role model to the children if he can remain in the Australian community and is able to refrain from alcohol and drug use and reoffending (para 8.4(4)(b) of Direction No 99).
There is no evidence to suggest that the Applicant’s prior conduct has had a direct negative impact on any of the children. If he were to resume drug and alcohol use and reoffends, it may impact negatively on the children if they resume a relationship with him and he is imprisoned or detained again, or deported (para 8.4(4)(c) of Direction No 99).
The Applicant is already maintaining contact with his cousins through weekly telephone and video calls. It would also be possible for him to maintain contact with his cousins in those ways if he was deported to Liberia (para 8.4(4)(d) of Direction No 99).
AM and A fulfil a parenting role for the children, and there is no evidence that the children are not well cared for. I am uncertain as to whether the children’s fathers are in their lives (para 8.4(4)(e) of Direction No 99).
There are no known views of the children before me (para 8.3(4)(f) of Direction No 99).
There is no evidence that the children have been or are at risk of being abused or neglected by the Applicant (para 8.4(4)(g) of Direction No 99). There is no evidence that they have experienced any physical or emotional trauma from the Applicant’s conduct (para 8.4(4)(h) of Direction No 99).
After considering and weighing the factors in paragraphs 8.4(4)(a) to (h) of Direction No 99, which include periods of absence, the relationships being non-parental, and that the children have a parent to care for them, I find that revocation of the Cancellation Decision is in the best interests of the Applicant’s cousins. I give slightly more weight to the best interests of V, because he shares a mother with the Applicant, they lived together when the Applicant lived at home, and I accept that they have a close brotherly relationship. The other children live interstate. JA has not met the Applicant and RA and DA have not seen him for several years. I therefore find that V’s interests weigh moderately in favour of the revocation of the Cancellation Decision. I also find that DA, RA and JA’s interests weigh slightly in favour of the revocation of the Cancellation Decision.
Expectations of the Australian community (paras 8(5) and 8.5 of Direction No 99)
A decision-maker must consider the expectations of the Australian community when making a decision under ss 501 or 501CA.
These expectations are set out in paragraph 8.5 of Direction No 99, which provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a) acts of family violence; or
b)    causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c)    commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d)    commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e)    involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f)     worker exploitation.
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community's expectations in the particular case.
I must give effect to the “norm” stipulated in paragraph 8.5(1) of Direction No 99, being that the Australian community expects non-citizens to obey Australian laws whilst in Australia. This will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future. The Applicant has breached this expectation by not obeying Australian laws. He has committed the serious offences of “aggravated armed robbery”, and “aggravated home burglary and commit” where the Applicant and a co-offender broke into a house, armed themselves with knives from the kitchen, and injured one of the occupant’s hands (which required 10 stitches) when confronted (G25/120). Consequently, the expectation of the Australian community would be that the Applicant’s Visa should remain cancelled (para 8.5(1) of Direction No 99).
As is evident from the reference to the “norm” in paragraph 8.5(1) of Direction No 99, I am being told unequivocally what the community’s expectations are. Further, paragraph 8.5(4) of Direction No 99 confirms more explicitly that the Australian community’s expectations are what the Government deems them to be, because decision-makers are directed to proceed based on the Government’s views about community expectations without independently assessing them.
In this regard, I agree with the observations of Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143, which were adopted by Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208 (Wightman). I note that Deputy President Boyle was writing about the previous Direction No 90, however the wording in Direction 99 is identical in this regard, and therefore they equally apply to Direction No 99.
In Wightman, Deputy President Boyle stated, at [85]–[86]:
… Direction 90 superseded Direction 79 on 15 April 2021. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (NTTH) at [194] noted that the provisions of Direction 90 contain generally similar wording to the corresponding provisions in Ministerial Direction No 65 (Direction 65), the predecessor to Direction 79. Those corresponding provisions in Direction 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (FYBR).
Senior Member Morris at [195] and [196] of NTTH summarises the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:
195.It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
196.It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. ...
(Original emphasis and footnotes omitted.)
Further detail about the Australian community’s expectations with respect to certain types of conduct is given in paragraph 8.5(2) of Direction No 99. That paragraph states that the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paragraphs 8.5(2)(a)–(f). The Applicant’s offending does not fall within those categories of conduct.
Paragraph 8.5(3) of Direction No 99 further confirms that the Australian community’s expectations are what the Government deems them to be, by effectively telling decision-makers that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. I found above that the Applicant is likely to pose a moderate risk of reoffending. However, even if I had found he was a minimal or low risk, the community’s expectations as stated apply regardless.
Further, paragraph 8.5(4) of Direction No 99 tells decision-makers that this consideration is about the expectations of the Australian community as a whole. It directs decision-makers to proceed based on the Government’s articulated views without assessing the community’s expectations in the particular case. However, the Applicant’s representative made the following submissions about the views of the Australian community in the circumstances of the Applicant’s case (ASFIC, para [65]-[67]):
The Australian community would never want a child brought up without a father.
The Australian community would favour revocation as the applicant was only fined for his offences as an adult. The applicant received a head sentence of 14 months when he committed the offences as a juvenile.
The Australian community would be compassionate and would be willing to extend the Applicant the opportunity to reintegrate into the Australian community, particularly when he has a 2-year-old child.
These submissions essentially ask me to speculate about the Applicant’s specific circumstances, whereas the Direction makes it clear that I cannot speculate about what the community’s views might be about the Applicant.
I can, however, have regard to the principle in paragraph 5.2(5) of Direction No 99, which states that Australia may afford a higher level of tolerance of criminal or other serious conduct by those who have lived in Australia for most of their life or from a very young age. The Applicant is now a 20-year-old man who arrived in Australia as a three-year-old child. As he has lived in Australia from a very young age, I find that Australia would have a higher level of tolerance for the Applicant.
Overall, I find that the primary consideration in paragraph 8.5 of Direction No 99, being the expectations of the Australian community, weighs moderately against the revocation of the Cancellation Decision.
OTHER CONSIDERATIONS (PARA 9(1) OF DIRECTION NO 99)
As I outlined above, Direction No 99 directs decision-makers to have regard to a non-exhaustive list of several other considerations to the extent they are applicable.
Legal consequences of decision under section 501 or 501CA (para 9(1)(a) and 9.1 of Direction No 99)
Paragraph 9.1 of Direction No 99 identifies the legal consequences that decision-makers must bear in mind when making a decision under s 501 or 501CA of the Migration Act.
The first sub-paragraph, 9.1(1), of Direction No 99, outlines that a non-citizen is liable for removal from Australia, notwithstanding any non-refoulement obligations:
(1)Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
The next two sub-paragraphs, 9.1(2) and (3), address Australia’s non-refoulement obligations:
(2)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3)International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
The Direction provides guidance in the situation where the non-citizen is covered by a protection finding, as defined by s 197C of the Migration Act (para 9.1.1 of Direction No 99), and where the non-citizen is not covered by a protection finding (para 9.1.2 of Direction No 99). No protection finding has been made regarding the Applicant, and so the latter sub-paragraph is applicable.
Paragraph 9.1.2(1) of Direction No 99 provides that if a non-citizen raises non-refoulement claims, the decision-maker must consider them:
(1)Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
If the non-citizen can apply for a protection visa the decision-maker will not be required to consider the non-refoulement issues in the same level of detail as for a protection visa. Paragraph 9.1.2(2) of Direction No 99 explains that the decision-maker must consider the non-citizen’s representations, but can proceed on the basis that those claims will be assessed if the person applies for a protection visa:
(2)However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
Further information for decision-makers is provided by paragraph 9.1.2(3) of Direction No 99. It firstly identifies that non-refoulement obligations identified outside of the protection visa process, such as in an International Treaties Obligations Assessment (ITOA), do not prevent the non-citizen from being removed. It also states that decision-makers must carefully weigh any non-refoulement obligation against the seriousness of an applicant’s criminal offending or other serious conduct. The sub-paragraph further confirms that even if non-refoulement obligations are owed to a non-citizen, this does not preclude the cancellation or refusal of their visa, because they will not necessarily be removed to the country where the non-refoulement obligation exists. This is because the Minister can consider other options, including removal to a third country, or exercising personal discretion to grant another visa or to make a residence determination. Also, if the non-citizen can apply for a protection visa, they will not be removed from Australia while that application was being determined:
(3)Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non-revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.

I will now consider the non-refoulement claims that the Applicant has made (para 9.1(1) Direction No 99).
In his personal circumstances form, the Applicant stated (G9/69):
If I return back to Liberia I would be homeless and have no money because I have never lived in this country before. I don’t know what areas belong to what Tribe and if I trespass in these areas without knowing I could be killed.
In a support letter, G stated (G20/101):
[The Applicant] would be put in danger, as Liberia has never recovered from the civil was. I fear for [the Applicant’s] life, health and wellbeing should he be put in this position as there is no social security, no health services and no support services to assist in [the Applicant] settling in this country.
In written submissions (ASFIC, paras [70]-[71]), the Applicant’s representative submitted:
Applicant is concerned that if he is deported to Liberia, he will face harm and will not have authorities such as in Australia to protect him. This is seen from the UNFPA [United Nations Population Fund] report where it states “the more public forms of violence which are more physical in nature, such as fighting/beating are often dealt with in accordance with traditional customary law, administered and enforced by the town chief in rural areas and town chairman in urban areas (ASFIC at annexure 3).
The reference to “ASFIC at annexure 3” is a reference to exhibit A2. However, that exhibit is titled, “Gender Based Violence” and thus seems of little relevance.
At the hearing the Applicant’s representative submitted, “Applicant is concerned that if he is deported to Liberia he will face harm and will have not have authorities, such as that in Australian, to protect him” (transcript/74). I asked for clarification of this submission at the hearing and whether the Applicant was raising non-refoulement claims or if those claims were impediments if removed. The following exchange with the Applicant’s representative is relevant (transcript/74):
SENIOR MEMBER:    … are you raising non-refoulement convention grounds?
MR CHAND:             That is correct. Because when a person doesn’t know the country and the country is already structured differently to Australia. It’s unlike Australia and the UK and things like that. And they have groups. All the decisions are made in different parties and all that. There is safety issues for the person who has got no one in the country. You know they will do it on the road or on the street and what that means is they would then join - try to make something out of it and go into the old bad ways of - you know - joining in the crowd and or the bad crowd which will have drastic effect on the applicant.
SENIOR MEMBER:    But are you raising --- is that more of an impediment if removed? Or are you raising like conventions sort of ---
MR CHAND:             He is on the borderline - yes.
SENIOR MEMBER:    --- grounds? Are there protection claims there? And what’s the basis for those?
MR CHAND:             Other than more impediments because we don’t want to be in a situation where we are told okay he’s got protection - he can get a protection claim but then that’s for the future. It’s speculative and it may never happen.
SENIOR MEMBER:    Yes.
MR CHAND:             That’s why we are saying it’s more an impediment for the age, for the person who has never been - he was two years old when he left the country.
SENIOR MEMBER:    Okay. So your submission is that it’s an impediment if removed, rather than a sort of a convention or a protection ---
MR CHAND:              Yes. Because once we look at - yes, well Senior Member once we look at that then the protection issue comes in and department basically says, “Yes, you can apply for it.” But there’s never a guarantee that you’re going to get the visa anyway.
From the totality of the evidence that I have outlined above, I understand the Applicant’s claims to be that he fears for his life, or fears violence if he is returned to Liberia because Liberia is generally a violent country and is still recovering from the civil war. He may also be perceived as a foreigner and be targeted with violence. He is also unfamiliar with tribal customs and territories and fears harm from those tribes if he were to mistakenly trespass on tribal territory. The Applicant fears that the authorities will not be able to protect him.
I also understand from my exchange with the Applicant’s legal representative that he was saving more detailed submissions on non-refoulement for any future protection visa application. The submission was not clearly made and the way it was expressed by the Applicant’s representative was general but convoluted. Overall, I do not think the Applicant’s claims concerning non-refoulement could be characterised as “a substantial or significant and clearly articulated claim” (Say v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 84 at [6]; MXDK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1142 at [17]).
As is contemplated by the Direction, the Applicant can apply for a protection visa and so it is not necessary for me to determine whether non-refoulement obligations are engaged. In my view this is the more appropriate course if the Applicant is unsuccessful in this application given the lack of detail in his non-refoulement claims. If the Applicant makes a protection visa application, he will have the opportunity to make more detailed and specific non-refoulement claims, that will be conclusively assessed prior to consideration being given to any character concerns (para 9.1.2(2) of Direction No 99). He will also not be removed from Australia while a valid protection visa application was being determined (para 9.1.2(2) of Direction No 99).
I therefore give this consideration neutral weight.
Extent of impediments if removed (paras 9(1)(b) and 9.2 of Direction No 99)
Paragraph 9.2(1) of Direction No 99 provides:
(1)Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen’s age and health;
b) whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
The Applicant is a young man of 20 years of age. There is no evidence that he has any physical or mental health issues.
He has lived in Australia since he was three years of age. All his schooling and formative years have been spent in Australia. It would be very difficult for him to reintegrate into life in Liberia if returned there. If returned, he would also be separated from his daughter and other close family members in Australia and is likely to suffer emotional detriment as a result.
Liberia is an unfamiliar country the Applicant has no recollection of. The Applicant said in his personal circumstances form that (G9/69):
I won’t know anyone. I don’t know the language and I will have no emotional, financial and physical support. I think my mental health is also at risk because I will be isolated with nothing.
There are likely to be significant language and cultural barriers (even though the official language in Liberia is English). The Applicant is a young man with limited skills and work experience. He is likely to have difficulty finding employment and sustaining himself if returned to Liberia. This difficulty is likely to be further exacerbated by his inability to speak the language and his lack of any family in Liberia who could provide him with any support or assistance if he were returned there. The location of the Applicant’s biological parents is uncertain. They may be in Liberia, but he is not in contact with them and does not know where they are.
The Applicant stated that “I simply do not know what I will do once I arrive there [in Liberia] – I don’t have a place to live, to work, I don’t know my way around, there is no social security or the health system due to the country still recovering from the war” (G10/74). Although the Applicant is likely to have access to the same social, medical, and other supports as other citizens of Liberia, I find that there are significant cultural, social and emotional impediments that the Applicant would have to overcome if returned.
I find that there are substantial impediments to the Applicant being able to establish himself and maintain basic living standards if he was returned to Liberia. Consequently, this consideration weighs strongly in favour of the revocation of the Cancellation Decision.
Impact on victims (paras 9(1)(c) and 9.3 of Direction No 99)
Paragraph 9.3(1) of Direction No 99 provides that:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no information before me regarding the effect of a decision to revoke or not to revoke the Cancellation Decision on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations). I also have no information regarding the impact on victims or their family members, including the victims of the offences of “aggravated armed robbery”, and “aggravated home burglary and commit” whose home he broke into, including the man whose hand the Applicant cut with a kitchen knife.
Consequently, I give this other consideration neutral weight.
Impact on Australian business interests (paras 9(1)(d) and 9.4 of Direction No 99)
Paragraph 9.4(1) of Direction No 99 states that decision-makers should consider the impact of a decision whereby the Applicant is not allowed to remain in Australia on any business interests. It provides:
(1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
This consideration does not arise on the material before me and is therefore not relevant.
THE WEIGHING EXERCISE
The Applicant does not pass the character test under s 501 of the Migration Act.
I have therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 99.
For the reasons set out above, I made the following findings about the relevant primary considerations in Direction No 99. These were:
(a)The protection of the Australian community from criminal or other serious conduct primary consideration weighed moderately against the revocation of the Cancellation Decision.
(b)The strength, nature and duration of the Applicant’s ties to Australia weighed strongly in favour of the revocation of the Cancellation Decision.
(c)The best interests of the Applicant’s minor daughter, D weighed strongly in favour of the revocation of the Cancellation Decision. The best interests of the Applicant’s minor cousin, V, weighed moderately, and the best interests of his minor cousins DA, RA and JA, weighed slightly in favour of the revocation of the Cancellation Decision.
(d)The expectations of the Australian community weighed moderately against the revocation of the Cancellation Decision.
I made the following findings with respect to the other considerations that were relevant. These were:
(a)Whether non-refoulement obligations were owed to the Applicant, which were discussed as part of the legal consequences of the decision under s 501CA. These were given neutral weight.
(b)The extent of impediments if removed other consideration weighed strongly in favour of the revocation of the Cancellation Decision.
I find that the primary considerations of the strength, nature and duration of the Applicant’s ties to Australia and the best interests of the Applicant’s minor daughter, D, which both weighed strongly in favour of the revocation decision, outweigh the protection of the Australian community and expectations of the Australian community primary considerations which both weighed moderately against the revocation of the Cancellation Decision. The extent of impediments if removed other consideration, which weighed strongly in favour of the revocation of the Cancellation Decision further adds to the balancing exercise in favour of the Applicant. So too does the primary consideration of the best interests of the Applicant’s minor cousins which weighed moderately (for V) and slightly (for DA, RA and JA) in favour of the revocation of the Cancellation Decision.
Overall, there are significant reasons which carry significant weight, such that I am satisfied that the Cancellation Decision should be revoked (Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531, [64]).
In other words, there is another reason why the Cancellation Decision should be revoked. Therefore, the correct or preferable decision is to set aside the Reviewable Decision, and to substitute a new decision that the Cancellation Decision should be revoked.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated 4 January 2023 is set aside and substituted with a decision that the cancellation of the Applicant’s Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act.

I certify that the preceding 220 (two hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

.............[Sgd]........................................................
Associate
Dated: 6 April 2023

Date of hearing: 9 March 2023

Representative for the Applicant: Mr Mukesh Chand, Shiva’s Migration Services

Representative for the Respondent:

Mr A Burgess, Sparke Helmore Lawyers

Date of hearing:	9 March 2023
Representative for the Applicant:	Mr Mukesh Chand, Shiva’s Migration Services
Representative for the Respondent:	Mr A Burgess, Sparke Helmore Lawyers