BNPB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] ARTA 36

BNPB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] ARTA 36 (29 October 2024)
Applicant:BNPB
Respondent: Minister for Immigration, Citizenship and Multicultural Affairs

Tribunal Number: 2024/5780

Tribunal:Deputy President S Burford
General Member J Papalia

Place:Perth
Date of decision: 29 October 2024
Date of written reasons: 8 November 2024

Decision:The Tribunal affirms the decision under review.

..............[SGD]..........................................................
Deputy President S Burford
General Member J Papalia
Catchwords
MIGRATION – visa cancellation – mandatory cancellation under s 501(3A) of the Migration Act 1958 – where Applicant does not pass the character test – irrelevant juvenile conduct – whether there is another reason to revoke cancellation – consideration of Direction no. 110 – protection of the Australian community – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – legal consequences of decision – extent of impediments if removed – citizen of Liberia – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 33, 43
Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) s 3, Sch 16 Item 24
Administrative Review Tribunal Act 2024 (Cth) ss 9, 54, 56(1)(a)
Crimes Act 1914 (Cth) ss 85ZR, 85ZS
Criminal Code (WA) s 378(5)(a)
Children’s Court of Western Australia Act 1988 (WA) s 36(1)
Migration Act 1958 (Cth) ss 5(1), 5J, 15, 35A, 36, 189, 189(1), 196, 197C, 197C(1), 197C(2), 197C(3), 198, 198(5A), 499(1), 499(2A), 500(6B), 500(6L), 501, 500(1)(ba), 501(6), 501(6)(a), 501(7)(c), 501CA(3), 501CA(4), 501CA(4)(a), 501CA(4)(b)(i), 501(3A), 501E, 501F, 503
Migration Regulations 1994 (Cth) regs 2.52(2)(b), Sch 2 cl 200.211, Sch 5 cls 5001, 5002
Misuse of Drugs Act 1981 (WA) s 6(1)(a)
Spent Convictions Act s 189(9)
Young Offenders Act s 55
Cases
Bainbridge v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1080
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3; 301 FCR 344
FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
La Rosa v The Queen (Supreme Court of Western Australia, Court of Criminal Appeal, 31 October 1996) Library No 960628C
Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6; (2024) 98 ALJR 475
Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11; (2024) 94 ALJR 594
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398
Minister for Immigration, Citizenship, Migrant Services v Thornton [2023] HCA 17; (2023) 276 CLR 136
MXP v State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149
Ngo v The Queen [2017] WASCA 3
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582
Re BNPB and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 730
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
Re Lynch and Minister for Immigration, Citizenship and Multicultural Affairs (Administrative Review Tribunal, 2024/5629, 24 October 2024
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
Smith v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 652
Secondary Materials
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024) paras 2, 5.1(4), 5.2, 5.2(2), 5.2(6), 6, 7, 7(2), 8, 8(1), 8.1, 8.1(1), 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(d), 8.1.2(1), 8.1.2(2)(a), 8.1.2(2)(b), 8.3(1), 8.3(2), 8.4, 8.4(4), 8.5(1), 8.5(3), 8.5(4), 9(1)(a), 9.1, 9.1.2(2), 9.2(1), 9.3(1)
Statement of Reasons
THE DECISION IN THIS MATTER WAS MADE AND PROVIDED TO THE PARTIES ON 29 OCTOBER 2024 WITH A NOTE THAT WRITTEN REASONS WOULD BE PROVIDED WITHIN A REASONABLE TIME. THESE ARE THOSE WRITTEN REASONS.[1]
BACKGROUND
[1] See Khalil and Respondent for Home Affairs [2019] FCAFC 151 at [41].

The Applicant is a 22-year-old male, who emigrated to Australia on 25 October 2005 as the holder of a refugee visa. He was three years old when he arrived in Australia.[2] His visa was previously cancelled due to juvenile offending and, on 29 March 2023, the Administrative Appeals Tribunal (differently constituted) made a decision to revoke that first cancellation.[3] For the reasons discussed below, the Applicant’s juvenile offending record is not relevant to the matter before the current Tribunal.
[2] R1, G17, page 102.
[3] See Re BNPB and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 730 (Exhibit R3).
Seventeen days later, on 15 April 2023, the Applicant was arrested outside an address in Nollamara. He was in possession of 20 grams of cocaine, at 73 percent purity. Police subsequently found evidence on his mobile telephone demonstrating that he had been engaged in selling prohibited drugs, including cocaine, for commercial gain.[4] He was charged with one count of possession of a prohibited drug with intent to sell or supply it to another, contrary s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) and was remanded in custody.
[4] R1, G5, page 41.
The Applicant entered a guilty plea to the drug charge in the Magistrates Court on 6 July 2023.[5] He was subsequently committed for sentencing in the District Court. On 6 December 2023, the Applicant was sentenced to two years’ imprisonment by her Honour Judge Wallace (from 15 April 2023).[6]
[5] Respondent’s Tender Bundle (RTB), pp 186-187.
[6] R1, G5, pp 39-46.
On 23 January 2024, the Applicant’s visa was mandatorily cancelled by a delegate of the Respondent (Minister) under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) due to the December 2023 sentence of imprisonment and the fact he was serving a sentence of imprisonment on a full-time basis at Acacia Prison (the cancellation decision).[7]
[7] See R1 G18, pp 103-109.
The Applicant was notified of the cancellation decision on the same day and invited to make representations to the Minister requesting revocation of this decision.[8] The Applicant sought revocation on 6 February 2024.[9] He submitted a personal circumstances form and evidence in support.[10]
[8] Ibid.
[9] See R1, G6, pp 47-53; Cf G3, p 22 [3].
[10] R1 G6, pp 47-50, 54-77, 91-98.
On 6 August 2024, a delegate of the Minister refused to revoke the cancellation of the Applicant’s visa under s 501CA(4) of the Migration Act (the non-revocation decision).[11] The Applicant was notified of the non-revocation decision on the same day, by email to his authorised representative.[12] This is the reviewable decision before the Tribunal.
[11] R1 G3, p 20.
[12] See R1 G3, pp 13-19.
On 12 August 2024, the Applicant lodged an application to the Tribunal for review of the non-revocation decision in accordance with s 500(1)(ba) of the Migration Act.[13] As the application was made within nine days after notification, it complied with the time limit set by s 500(6B) of the Act. The Applicant is in the custody of the State of Western Australia at Acacia Prison. Accordingly, the review relates to a person in the ‘migration zone’.[14]
[13] R1 G2, pp 4-12.
[14] As defined by s 5(1) of the Migration Act.
LEGAL FRAMEWORK
The Migration Act provides powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, such as where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
These powers generally involve consideration of whether a person passes the character test, and if they do not pass the character test, whether there is another reason that the decision to cancel a visa should be revoked.
The question for determination by the Tribunal is whether the reviewable decision not to revoke the mandatory cancellation of the Applicant’s visa was the correct or preferable one on the material before the Tribunal.[15]
[15] Administrative Appeals Tribunal Act 1975 (Cth) (repealed) (AAT Act), ss 2A, 33 and 43; Administrative Review Tribunal Act 2024 (Cth) (ART Act) ss 9, 54, 56(1)(a); Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) (ART Consequential Act No 1), s 3 and Sch 16 Item 24; See also Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [140].
Sub-section 501CA(4) of the Migration Act provides that a mandatory cancellation may be revoked if:
(a)the Applicant makes representations in accordance with the invitation given by the Minister under s 501CA(3); and
(b)the decision-maker is satisfied that:
(i) the Applicant passes the character test (as defined by section 501); or
(ii) there is another reason why the mandatory cancellation should be revoked.
In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 (M1/2021), the majority of the High Court described s 501CA(4) as conferring ‘a wide discretionary power’ to revoke a mandatory cancellation, if the decision-maker (whether the Minister, their delegate or the Tribunal on review of a delegate’s decision) is satisfied that there is ‘another reason’ why the cancellation should be revoked. The majority held that the assessment of whether there was, in fact, ‘another reason’ was to be undertaken by reference to the representations made by the Applicant.[16]
[16] At [22]; See also Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398 at [13]-[15]; Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11; (2024) 94 ALJR 594 at [6].
In exercising the power under s 501CA(4) of the Migration Act, the Tribunal must comply with Direction no. 110 given by the Minister under s 499(1) of the Migration Act.[17] The Direction commenced on 21 June 2024.[18]
[17] Direction no. 110, para 5.1(4); Migration Act, s 499(2A).
[18] Direction no. 110, para 2.
Informed by the principles set out in para 5.2 of the Direction, the Tribunal must take into account the factors identified in sections 8 and 9 of the Direction (to the extent relevant in the particular case) in deciding the application.[19]
[19] Direction no. 110, para 6.
ISSUES
The issues before the Tribunal are:
(a)Whether the Applicant has made representations for the purposes of s 501CA(4)(a) of the Migration Act; and
(b)if so, whether the Applicant passes the character test; and
(c)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked.
For the reasons below, the Tribunal has decided that the correct decision is that the decision not to revoke the mandatory cancellation of the Applicant’s visa be affirmed.
THE HEARING AND THE EVIDENCE
The Applicant appeared before the Tribunal at a hearing on 9 October 2024. The Applicant was incarcerated at Acacia Prison at the time of the hearing and the hearing was conducted in person at the Peter Durack Commonwealth Law Courts Building. He was self-represented. The Respondent was represented by Mr Byrnes of counsel instructed by Mr Mayne of Sparke Helmore Lawyers, who both appeared at the hearing by audio-visual link.
The Applicant gave evidence at the hearing, as did his adoptive mother (Ms SoB), aunt (Ms SeB), family friend (Mr OM) and former partner (Ms BO), who were each cross-examined by Mr Byrnes. The supporting witnesses gave their evidence by telephone. The Minister accepted the evidence of the Applicant’s grandmother (Ms EB) and cousin (Mr T) contained within their respective letters to the delegate and they were therefore not required for cross-examination. The Tribunal admitted the following documents into evidence:
·Applicant’s Bundle of Documents filed 4 October 2024 (Exhibit A1);
·G-Documents filed 21 August 2024 (Exhibit R1);
·Respondent’s Tender Bundle filed 25 September 2024 (Exhibit R2); and
·The previous reasons for decision of the Administrative Appeals Tribunal dated 6 April 2023 (Exhibit R3).
Both the Applicant and the Minister filed Statements of Facts, Issues and Contentions (SFICs) prior to the hearing. The Applicant’s SFIC was prepared by a migration agent, Mr Chand, who subsequently ceased to act for the Applicant.
The Tribunal was mindful of the Applicant’s lack of representation in the conduct of the proceedings. The Applicant was advised in simple terms of his right to invoke the privilege against self-incrimination prior to his giving evidence.[20] The Applicant was also provided an opportunity at the hearing to respond to matters put to him and to provide answers to questions asked by the Tribunal which were directed at relevant considerations under Direction no. 110.
CONSIDERATION
[20] See Bainbridge v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1080 at [64]-[65].
Representations in accordance with invitation
The Applicant was invited by the Minister to make representations about revocation of the mandatory cancellation of his visa on 23 January 2024.[21]
[21] See R1, G18, page 103ff.
Regulation 2.52(2)(b) of the Migration Regulations 1994 (Cth) (Migration Regulations) provides that any such representations must be made within 28 days after the person is given the invitation under s 501CA(3) of the Migration Act.
The Applicant made representations requesting revocation within the prescribed period, on 6 February 2024, and using the Department’s template revocation request form.[22]
[22] See R1, G7-G8, pp 48-53.
Accordingly, the Tribunal is satisfied that the Applicant made representations in accordance with the invitation for the purposes of s 501CA(4)(a) of the Migration Act.
Treatment of the Applicant’s Juvenile history
The Tribunal notes that the Applicant has a juvenile record in Western Australia, which provided the basis for the previous visa cancellation and revocation decisions. That juvenile record is not before this Tribunal.
The Minister submitted that he did not rely on the Applicant’s juvenile history and that the Tribunal should not place any weight on those offences or have regard to them because of the High Court’s decisions in Minister for Immigration, Citizenship, Migrant Services vThornton [2023] HCA 17; (2023) 276 CLR 136 (Thornton) and Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6; (2024) 98 ALJR 475 (Lesianawai). The Tribunal agrees with that submission.
In Re Lynch and Minister for Immigration, Citizenship and Multicultural Affairs (Administrative Review Tribunal, 2024/5629, 24 October 2024) (unpublished), this Tribunal explained its approach to juvenile offending in Western Australia having regard to ss 85ZR and 85ZS of the Crimes Act 1914 (Cth) and recent appellate authority about those provisions (at [53]-[64]). That reasoning applies with equal force to this matter. In that decision, the Tribunal considered the issue of juvenile offending in Western Australia as follows:
[53]… in order to ascertain whether s 85ZR of the Crimes Act 1914 (Cth) (Crimes Act) picked up the relevant provisions under state law, consideration should be given to the scope and content of those provisions.
[54] Two years has expired since the discharge of any sentence imposed by the Children’s Court following the Applicant’s conviction prior to 2008 for certain state offences. In accordance with s 189(2) of the Young Offenders Act 1994 (WA) (Young Offenders Act), those juvenile convictions are ‘not to be regarded as a conviction for any purpose, as except as provided in [section 189]’.
[55] Part 3 of the Spent Convictions Act 1988 (WA) (Spent Convictions Act) also ‘has effect in relation to a conviction that, under [section 189 of the Young Offenders Act], is not to be regarded as a conviction as if it were a spent conviction under that Act’.[23] Section 26 of the Spent Convictions Act relevantly provides that where a State law permits or allows a person to consider, take into account, or determine the good character, fitness, propriety or other like attribute of a person for the purposes of that written law, the person shall not in doing so have regard to a spent conviction or the charge to which the conviction relates.
[23] Spent Convictions Act s 189(9).
[56] Noting that there is a distinction between sentencing and conviction in the Children’s Court which is dependent upon the nature of the charge and the exercise of the Court’s discretion, the Applicant is otherwise not to be regarded to have been convicted in respect of any other offences for which he was dealt with in the Children’s Court unless a conviction had been specifically recorded for that offence or he was deemed to have been convicted for the purpose of a Road Traffic law or a criminal appeal.[24]
[24] See Young Offenders Act, s 55; Children’s Court of Western Australia Act 1988 (WA), s 36(1).
[57] The combined effect of these state legislative provisions in the Applicant’s circumstances is that, as matter of Western Australian law, the Tribunal should not take into consideration the fact that the Applicant was charged with, or convicted of, any offences as a juvenile.
[58] Sub-section 85ZR(2)(b) of the Crimes Act provides that:
[d]espite any other Commonwealth law … where, under a State 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 …: (b) the person shall be taken, in any State …, in corresponding circumstances or for a corresponding purpose, by any Commonwealth authority in that State …, never to have been convicted of that offence.
[59] A “Commonwealth authority” includes this Tribunal: Crimes Act, s 85ZL.
[60] Sub-section 85ZS(1)(d)(ii) of the Crimes Act further provides that:
[s]ubject to Division 6, but despite any other Commonwealth law …, where, under s 85ZR, a person is, in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence: … (d) anyone else who knows, or could reasonably be expected to know, that section 85ZR applies to the person in relation to the offence shall not … (ii) in those circumstances, or for that purpose, take account of the fact that the person was charged with, or convicted of, the offence.
[61] In Thornton the High Court considered the Youth Justice Act 1992 (Qld) and in Lesianawai, the Court considered the Children (Criminal Proceedings) Act 1987 (NSW). The outcome in Thornton, as summarised by Beech-Jones J in Lesianawai, was:
[22] In Thornton, Gageler and Jagot JJ held that the effect of the Youth Justice Act was that a finding of guilt for which no conviction was recorded was not, and was ‘not taken to be’, a conviction for any purpose. It followed that s 85ZR(2)(b) was engaged and the ‘the correspondence purpose’ was ‘any purpose’, including the purpose of considering whether to revoke the cancellation of a visa. Their Honours concluded that ‘[t]he Minister’s consideration of Mr Thornton’s youth offending in deciding not to revoke the cancellation of the visa was contrary to the direction in s 85ZR(2)(b) of the Crimes Act (emphasis added).
[23] Gordon and Edelman JJ reached the same conclusion by in part relying on s 85ZS. Their Honours construed s 85ZR(2) so that, if a State law provides that in ‘particular circumstances’ a person is deemed never to have been convicted for any purpose. Their Honours construed ss 183 and 184 of the Youth Justice Act as specifying particular circumstances in which a person was taken never to have been convicted, namely, where a finding of guilt had been made and a court had decided or been mandated not to record a conviction. Thus, their Honours found that s 85ZR(2) was engaged for all purposes in those particular circumstances. Their Honours concluded that ss 85ZS(1)(d)(ii) and 85ZM of the Crimes Act precluded the Minister from taking into account any of the ‘findings of guilt’ made against the respondent or the fact that he had been charged with the offences he committed when he was a child.
(footnotes omitted).
[62] In Lesianawai, Beech-Jones J (with whom Gageler CJ, Gordon, Edelman and Gleeson JJ agreed) considered similar NSW legislative provisions which had the effect that a person under the age of 16 could not be convicted of particular offences, despite being found guilty or pleading guilty. His Honour observed that:
[32] … like the provisions of the Youth Justice Act considered in Thornton, the above provisions of the Children Proceedings Act reflect a clear distinction between a finding of guilt and a conviction. Under the Children Proceedings Act, a finding of guilt is not a conviction and, subject to any statutory provisions that provide to the contrary, is not treated as a conviction for any purpose. An example of a statutory provision that provides to the contrary is s 33(6) of the Children Proceedings Act, which was introduced with effect from 3 November 2008. Section 33(6) deems a finding of guilt by the Children’s Court to be a conviction ‘[f]or the purposes of any provision of the road transport legislation that confers power on a court with respect to a person who has been convicted of an offence’ and enables the Court to exercise power under that legislation as if the person had been convicted of the offence.
(footnotes omitted).
[63] In conclusion, his Honour accepted the plaintiff’s contention that:
[35] … once it is concluded that [the plaintiff] is taken never to have been convicted of the offences for which he was sentenced by the Children’s Court when he was under the age of 16 for any purpose, then s 85ZR(2) is engaged, and it follows from Thornton that s 85ZR(2) and, to the extent necessary, s 85ZS(1)(d)(ii) precluded the delegate from relying on those convictions (or the findings of guilt they embody).
Therefore, as explained by the High Court, the effect of s 85ZR of the Crimes Act is that full force and effect is to be given by the Tribunal to a law of a state under which a person is “for any purpose” to be taken never to have been convicted for an offence. The ‘corresponding purpose’ as referred to in s 85ZR(2) is therefore ‘any purpose’ and this includes the purpose of this Tribunal making a decision on review of a decision made under s 501CA(4) of the Migration Act.
[64] Therefore, as explained by the High Court, the effect of s 85ZR of the Crimes Act is that full force and effect is to be given by the Tribunal to a law of a state under which a person is “for any purpose” to be taken never to have been convicted for an offence. The ‘corresponding purpose’ as referred to in s 85ZR(2) is therefore ‘any purpose’ and this includes the purpose of this Tribunal making a decision on review of a decision made under s 501CA(4) of the Migration Act.

Consistent with the above consideration, the Tribunal has not considered any of the Applicant’s juvenile history in this matter and it has played no role in our decision as to whether the mandatory cancellation should be revoked under s 501CA(4) of the Migration Act, including whether the Applicant passes the character test as defined in s 501(6).
The Applicant’s conduct and offending as an adult
The Applicant’s criminal record is contained within a one-page Western Australia Police Force History for Court – Criminal and Traffic dated 27 August 2024.[25] This record is consistent with the Australian Criminal Intelligence Commission report dated 23 January 2024.[26] The Applicant committed offences over three dates: June 2021; July 2021; and April 2023. The Applicant was cross-examined on each tranche of offending.
[25] R2, TB2, page 52.
[26] R1, G4, pages 36-37.
With respect to the first set of offences in June 2021, the Applicant was taken to the police Statement of Material Facts (SOMF) prepared for a charge of aggravated robbery.[27] The State ultimately accepted the Applicant’s plea of guilty to the statutory alternative of stealing contrary to s 378(5)(a) of the Criminal Code (WA).[28] That is, stealing from a person without the use or threat of violence or the statutory circumstance of aggravation. But this SOMF is generally consistent with the facts ultimately put to the Court and accepted by the Applicant,[29] and referred to an incident in the early hours of Friday, 18 June 2021 in the Coventry Market carpark in Morley. During the incident, the Applicant was part of group of males that approached another group in the carpark, there was an exchange between where the Applicant asked the victim whether he ‘ha[d] cash or money for fuel’, after some dialogue between them, the Applicant reached into the victim’s left trouser pocket and took out the victim’s wallet. The Applicant testified that he took the wallet but that he did not ask the victim for money.[30] He said that was someone else in his group.[31]
[27] Charge PE 28290/2021. The circumstance of aggravation being that the alleged offence was committed in company. See R2, TB2, p 53.
[28] R2, TB3, pp 152, 169.
[29] R2, TB3, pp 164-165, 169.
[30] Transcript, page 14.
[31] Transcript, pp 14-15.
The car park incident was followed by a police pursuit at 9.50pm that Friday night, where the Applicant was driving down Morley Drive and pulled in front of another vehicle causing it to break heavily to avoid a collision.[32] He then ignored a police direction to stop (in the form of activated lights and sirens), turned into a side street and accelerated away from the police vehicle. He ultimately reached speeds of up to 80 km/h in a residential area, crossed over to the incorrect side of the road and crashed the vehicle into a metal bollard in the carpark of Breckler Park in Dianella. The wallet was found in the driver-side door of the vehicle. The Applicant fled the crash on foot, but his female passengers remained behind and identified him as the driver. The Applicant was not authorised to drive because he had never held a licence to do so.[33] When questioned by Counsel for the Minister, the Applicant denied crossing over to the other side of the road.[34]
[32] Transcript, page 15; R2, RTB, pp 56, 165-166, 168.
[33] Transcript, page 13; R2, TB2, p 57.
[34] Transcript, pp 16-17.
The following exchange demonstrates the Applicant’s attitude towards this offending:
Counsel: Do you think what you did was dangerous or not?
Applicant: Well, yes, because I was speeding, you know. So, Yes.
Counsel: And you also had other people in the car as well, didn’t you?
Applicant: Yes. Yes, I did.
Counsel: And I mean – and that puts them at risk as well, didn’t it?
Applicant Well, they were telling me – like, they were getting in my ears telling me not to stop. So you know – so, I guess – I wasn’t – I …
Counsel: So they?
Applicant: I was putting them in risk, but at the same time they were telling me not to stop too, so I just, you know.
Counsel: So was it their idea to keep going, not your idea?
Applicant: Well, it was just – it was panic, I guess, it was – I didn’t know – at the time when I was panicking, so I could say it was my idea because it just happened.
The Applicant’s insight and attitude towards his offending is addressed further below in the context of the consideration of the Protection of the Australian Community.
On 1 July 2021, the Applicant went to a towing yard to collect the seized vehicle.[35] He gave a false name to police when questioned.[36] When the police took him back to the station, they found a taser and 1.1 grams of cannabis on his person.[37] The Applicant testified to the Tribunal that he lied to police because he did not want to get into trouble for the police pursuit on 18 June 2021.[38] He said he was carrying the taser for personal safety reasons,[39] and that a friend gave him the cannabis.[40] However, he accepted during the hearing that he had been using cannabis at that time.[41]
[35] Transcript, page 18; R2, TB3, page 162.
[36] Ibid.
[37] Transcript, pp 19-20.
[38] Transcript, page 18.
[39] Transcript, page 20.
[40] R2, TB2, p 58; Transcript, p 21.
[41] Transcript, page 21.
The Applicant was in state custody between 2 July 2021 and 19 April 2022.[42] Upon release, he was detained under s 189(1) of the Migration Act due to the prior cancellation of his visa (on 18 August 2021).[43] He was released from immigration detention on 29 March 2023 when the previously constituted Tribunal revoked the original cancellation decision.
[42] Transcript, page 26; R2, TB1, p 2.
[43] Transcript, pp 22, 26.
On 27 May 2022, whilst in immigration detention, the Applicant was dealt with by Magistrate De Maio in respect of the June and July 2021 offending. With respect to the failure to stop in circumstances of aggravation and the no authority to drive offences the Applicant was fined $5000 and disqualified for driving for 2 years (for the failure to stop). He was fined $500 for stealing and $300 for giving false personal details to police, possessing cannabis and possessing a prohibited weapon.[44] In sentencing the Applicant, Magistrate De Maio counselled the Applicant on the risks of anti-social peers and drug use and stressed the seriousness nature of his conduct with respect for the driving offence for which she noted he had run the risk of a prison term if he had been charged for the driving itself.[45]
[44] R1, G4, page 37; R2, TB3, pp 179-180.
[45] R2, page 178-180.
The Applicant was sentenced with respect to the possession of cocaine offence on 6 December 2023 in the District Court of Western Australia. As noted earlier, on 15 April 2023 the Applicant was arrested outside an address in Nollamara and found to be in possession of 20 grams of cocaine, at 73 percent purity. Police subsequently found evidence on his mobile telephone demonstrating that he had been engaged in selling prohibited drugs, including cocaine, for commercial gain.
In cross-examination before the Tribunal, the Applicant was asked how he came to be in possession of a commercial quantity of cocaine on the morning of Saturday, 15 April 2023:
Applicant: Yes, so like, it wasn’t my intent to actually have cocaine on me, you know. I was partying with friends and I guess we just had it around us at the time, you know? It wasn’t my intent to go sell cocaine and deal – do drugs, I guess.
Tribunal: BNPB, you also had a weapon down your pants, what was that?
Applicant: It was scissors. It wasn’t – it wasn’t used for a weapon, it was something I got out the car when I left the car, because we were – had stuff in the car. And I picked it up.
Counsel: You say you were partying with your friends, but how is that consistent? You talk about here, your beliefs – your use of alcohol and cannabis contributed to your offending. And so why did you and presumably use alcohol, at least when you’re partying with your friends? Why did you go and do that if – after you said this to the Tribunal?
Applicant: Because, honestly, I just – yes, I just got out, and I just wanted to have one good time. I didn’t expect there was going to be cocaine there but ---
Tribunal: BNPB, the cocaine was in your bag, as in, your backpack?
Applicant: Yes.
Tribunal: In a clip-sealed bag?
Applicant: Yes. Like, I didn’t know it was there. And I took some, and – yes, I got caught with it.
Tribunal: What do you mean, you didn’t know it was there? It was in your backpack?
Applicant: No, no. Earlier, I didn’t know they were going to bring it – my friend is going to bring it – and I took it. Took it with me, and we left the hotel.
Counsel: Well, are you saying that your offending on 15 April 2023 was, you just took a bag of cocaine?
Applicant: Yes.
Counsel: Or a bag containing cocaine, and you weren’t aware of the contents?
Applicant: I wasn’t really aware of my friends bringing it. And I took it, yes I took it with me.
Tribunal: BNPB, Judge Wallace, in sentencing you ---
Applicant: Yes.
Tribunal: ---referred to the fact that when police looked at your phone, they found multiple messages between you and other people where you were selling cocaine and other drugs?
Applicant: Yes.
Tribunal: Well, how are we supposed to believe what you’ve just told us now?
Applicant: Because, your Honour, it wasn’t like – what I was selling, it wasn’t a big amount. It was very tiny, you know?
Tribunal: But you’ve just told the Tribunal ---
Applicant: Yes.
Tribunal --- you didn’t know the cocaine was going to be at the party?
Applicant: Yes.
Tribunal: And you took some, you had it in your backpack?
Applicant: Yes, I took some.
Tribunal: And we know that when police looked at your phone, they had messages demonstrating that you had been engaging in selling drugs?
Applicant: Yes. So I took some at the party. I didn’t know my friend was going to bring it, I took some. But what was on my phone was even before the party. You see? It was before the party.
Tribunal: But that’s what I don’t understand, BNPB. If you were selling drugs, you were caught with a commercial quantity of drugs, how are we supposed to believe you didn’t know cocaine was going to be at the party, and that you grabbed some?
Applicant: Because – no – I grabbed it, yes. I know I grabbed it, yes. I’ve told you, I know I grabbed it. But I didn’t know he was going to bring it. That’s what I’m saying. He brang it, and I grabbed it. But I didn’t know he was going to bring it in the first place.
Tribunal: “He” being your friend at the party?
Applicant: Yes.[46]
[46] Transcript, pp 29-31. See also Transcript, p 32 regarding ‘one good party’.
The Applicant however accepted that he had been dealing in illicit drugs prior to the party on Friday, 14 April 2023.[47] He described this as ‘selling … little amounts to support my habits’.[48] The Applicant told the Tribunal that he met ‘some crew’ in Yongah Hill Immigration Detention Centre that told him he would have employment upon release, but that he linked up with people outside that ‘instead of giving me that good life and job, led me to other stuff, and I was doing drugs and stuff, going back to the old life.’[49] He said that he had been heavily influenced by negative peers.[50]
[47] Transcript, pp 32-33.
[48] Transcript, page 33.
[49] Transcript, page 25.
[50] Transcript, page 33.
In sentencing the Applicant to two years’ imprisonment for the possession of cocaine charge, Judge Wallace remarked that the amount of cocaine was ‘not inconsequential and if it had reached the community it would have posed significant harm’.[51] Her Honour also found that the Applicant was clearly engaged in the sale of cocaine to derive a profit from doing so.[52] He was a ‘low-level user dealer’, but there was also a level of planning, premeditation and persistence over time with respect to the offending.[53] In sentencing the Applicant, her Honour recognised mitigating factors including the plea of guilty, the Applicant’s youth and remorse and his background as a migrant lacking a significant male role model.[54] She determined it was not appropriate to suspend the sentence given the seriousness of the offence and the need for general and personal deterrence.[55]
[51] R1, G5, page 41.
[52] Ibid.
[53] Ibid.
[54] R1, G5, page 44.
[55] R1, G5, page 45.
The Applicant received a $500 fine for the related charge of obstruction of a police officer, by attempting to escape when he was placed under arrest on 15 April 2023.[56]
[56] R2, TB3, pp 146-149, 183-184, TB4, pp 193.
Character test
The Tribunal must decide whether the Applicant passes the character test as defined by s 501.[57] Failure to pass the character test arises as a matter of law.[58]
[57] See Smith v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 652 at [40]. See also Direction 110, para 5.1(3) and Annex A.
[58] See Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at [63].
The character test is relevantly defined in s 501(6)(a) of the Migration Act as when ‘the person has a substantial criminal record (as defined by subsection (7))’.
The Applicant was sentenced to two years’ imprisonment on 6 December 2023. Accordingly, the Applicant has a ‘substantial criminal record’ within the meaning of s 501(7)(c) of the Migration Act (as he has been subject to a sentence of imprisonment of 12 months or more) and does not pass the character test.
The Tribunal is not satisfied that the Applicant passes the character test.[59]
[59] See Migration Act s 501CA(4)(b)(i).
Is there another reason?
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the representations made by the Applicant and any relevant primary and other considerations contained within Direction no. 110, there is another reason why the cancellation decision should be revoked.
Further guidance as to how the Tribunal is to apply the considerations in

Direction no. 110 can be found in para 7, which provides that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
Protection of the Australian Community
The first primary consideration, para 8(1) of Direction no. 110, requires the Tribunal to consider the protection of the Australian community from criminal or other serious conduct. The Tribunal is directed by para 8.1(1) to ‘keep in mind that the safety of the Australian community is the highest priority of the Australian Government’ and that the Tribunal 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’.
Direction no. 110 provides that the protection of the Australian community is generally to be given greater weight than other primary considerations.[60]
[60] Direction no. 110 para 7(2).
The Tribunal must consider:
(a) the nature and seriousness of the applicant’s conduct to date; and
(b)the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
In assessing the nature and seriousness of criminal offending and other conduct to date, paragraph 8.1.1(1) of Direction no. 110 provides that the Tribunal must have regard to specific types of crimes or conduct which are ‘viewed very seriously’ by the Australian Government and the Australian community. The Direction also provides that certain other crimes or conduct are considered to be ‘serious’. The Tribunal notes that while the Direction expressly provides categories of conduct to be considered to be very serious or serious, it does not limit the range of conduct that may be so regarded.[61]
[61] Direction no. 110 para 8.1.1(1)(a).
In considering the nature and seriousness of the Applicant’s criminal offending or other conduct to date, the Tribunal must have regard to the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness; the cumulative effect of repeated offending; whether the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending; whether the Applicant 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 Applicant’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour). In addition, Direction no. 110 introduced a requirement under this section that the Tribunal consider the impact of the offending on any victims and their family, where information regarding this is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness as part of its consideration of the nature and seriousness of the Applicant’s offending and other serious conduct.[62]
[62] Direction no. 110 para 8.1.1(1)(d).
The Applicant submitted that he committed the offences due to his ‘poor choices of association with negative people, his dependency on alcohol and his immaturity’.[63]
[63] ASOFIC, [28]-[29].
The Minister contended that the nature and seriousness of the Applicant’s conduct to date should be viewed ‘very seriously’,[64] because, amongst other things, the facts of the offending, the sentence of imprisonment imposed by Judge Wallace, impact of drug-dealing on the community, the general trend of increasing seriousness and the cumulative effect of his conduct.[65]
[64] Respondent’s SFIC, [26].
[65] Respondent’s SFIC, [35]-[40].
The Applicant spent his 18^th birthday in juvenile detention. He was released on a supervised release order in April 2021 (when he was still 18).[66] He committed the June and July 2021 offences shortly thereafter and was detained in either State custody or in an adult prison or immigration detention from 2 July 2021 until 29 March 2023.[67] He was in the community for less than 17 days between 29 March 2023 and 15 April 2023. He committed his most recent, and most serious offence, at 20 years of age.
[66] R3, [112(c)]; R2, TB1, page 2.
[67] R2, TB1, page 2.
In sentencing the Applicant in respect of the June and July 2021 offences, Magistrate De Maio had a lengthy exchange with the Applicant at that sentencing hearing regarding the consequences of further offending and drug use, including for his migration status.[68] The Applicant was cross-examined by Counsel for the Minister on that exchange at the hearing before the Tribunal. He initially testified that he did not remember the exchange.[69] However, he then indicated that ‘…Yes, so I – like, I don’t agree that – I don’t reckon – I should have not said it, that I was going to stop, and I came out and did drugs. So what I’m saying is, I regret telling her that I will, and then got caught with drugs.’[70]
[68] R2, TB3, pp 178-180.
[69] Transcript, page 23.
[70] Transcript, page 24.
Whilst the Applicant only has eight convictions as an adult, over three separate dates, the Applicant has been a frequent offender given the relatively short period of time in which he has been in the community. Despite his relative youth and the acknowledgement of other mitigating factors, he was sentenced to a term of imprisonment of two years which the Tribunal considers reflected the serious nature of the offending. The serious nature of the offending was also noted in the sentencing judge’s remarks.[71] In that lens, his offending is also cumulatively significant. The Applicant also clearly and undoubtedly re-offended after being formally warned about the consequences of further offending in terms of his migration status. Whilst the Applicant testified that he could not recall the warnings, the Tribunal does not accept he was unaware that further offending may have serious consequences with respect to his migration status. The Tribunal considers his continued offending in the face of that warning adds to the overall assessment of his conduct and offending.
[71] R1, G5, pp 41, 44.

In this regard the Tribunal notes that while any offending as a juvenile is not a matter to be taken into account by the Tribunal, this does not extend to the fact of the prior cancellation on character grounds in so far as that represented a clear warning to the Applicant that offences against Australian laws carry a risk of visa cancellation. Given the Applicant challenged the previous cancellation of his visa before the Tribunal (differently constituted), the Tribunal considers his contention that he was unaware of the potential consequences of further offending lacked credibility and both contributes to the overall assessment of the seriousness of his offending and suggests he lacks insight into that offending.
Whilst acknowledging the Applicant’s relative youth and the mitigating circumstances of his childhood, as noted in sentencing remarks, in the Tribunal’s view those factors do not render the nature of the offences less serious, particularly in light of the Applicant’s decision to reoffend almost immediately following revocation of his visa.
As noted in sentencing judge’s comments, should the cocaine possessed by the Applicant have reached the community, it would have posed significant harm.[72] Her Honour went on to note:[73]
..drugs have a devastating and prevalent impact on our community and, as I said, that’s because people are engaging in offending of this nature, people are committing offences to fund their drug addiction, or they’re committing offences under the influence of drugs, for that reason we have to give quite significant sentences for drug offending and we need to achieve general deterrence, which is, we want to deter other people from committing these kinds of offences.
[72] R1, G5, page 41.
[73] R1, G5, pages 44-45.
Drug dealing has been aptly described by the Court of Appeal as a ‘scourge in modern society. It causes human degradation, harm and misery and consequent damage to the community as a whole, as well as to the individuals who are directly affected by it. The consumption of illicit drugs is a cause of or relevant to a very significant proportion of the criminal conduct which is dealt with by [the] courts.’[74] It is clear from the sentencing remarks that the Applicant was engaged in the sale of cocaine for profit albeit as a low-level user dealer. It is also clear that he chose to engage in the sale of drugs shortly after having been released from detention and following warnings from Courts and from immigration authorities regarding the consequences of further offending, including further drug use. He chose to disregard those warnings.
[74] MXP v State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149 at [64] per Buss JA; see also Ngo v The Queen [2017] WASCA 3 at [63(d)] per Buss P, Mazza JA agreeing.
In light of all these factors, in the Tribunal’s view the Applicant’s drug offending was very serious.
The Applicant’s other conduct is also of concern because of the potential for serious consequences to occur when cars are driven other than in accordance with the road rules. In sentencing remarks, Magistrate De Maio noted the serious nature of the Applicant’s conduct with respect to the incident on 18 June 2021 where the Applicant drove at speed in an admitted attempt to avoid police.[75] Such conduct puts the safety of road users, including public officials acting the exercise of their duties, at risk. In the Tribunal’s view, this conduct and other offences committed by the Applicant including carrying a prohibited weapon, stealing from a person and obstructing public officers demonstrate a disregard for lawful authority and for the safety of the community. This contributes to the overall assessment of his conduct as very serious.
[75] R2, TB3, page 179.
The Tribunal considers the Applicant’s adult conduct and offending to be very serious, particularly where it occurred following prior warnings about the consequences of further offending, including the prior cancellation of his visa.
Risk to the Australian community should the Applicant engage in further conduct
The Tribunal is required to assess the risk that may be posed by the Applicant to the Australian community by considering, cumulatively, the nature of the harm to individuals or to the community should the Applicant engage in further criminal or other serious conduct and the likelihood of the Applicant engaging in such conduct.[76] There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[77]
[76] Direction no. 110, para 8.1.2(2)(a) and (b).
[77] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, at [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, at [41] per Kenny J.
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals or the Australian community should the Applicant re-offend.[78]
[78] Direction no. 110 para 8.1.2(2)(a).
The Tribunal has already referred to some of the potential consequences of drug dealing, traffic offending and other associated conduct. Such conduct can have a range of consequences, which flow beyond the immediate parties that are involved in a particular incident. So far as the drug trade is concerned, in the words of Justice Owen (with whom Pidgeon and Walsh JJ agreed) in La Rosa v The Queen[79] ‘[i]t is behaviour which leaves innocent third parties as victims, tears families apart, creates enormous economic and social dislocation and, more than occasionally, leads to loss of life.’ The same can be said for the irresponsible use of a vehicle. If the Applicant were to re-offend through further drug offences or other serious drug related conduct, this would cause harm to the community, through the harm caused by illicit substance use including but not limited to the physical and psychological harm to the user. It would also cause harm in the form of the broader offending engaged in to meet the cost of illicit drug use, as has been identified in the context of the sentencing the Applicant.
[79] Supreme Court of Western Australia, Court of Criminal Appeal, 31 October 1996, Library No 960628C at 14-15.
Were the Applicant to engage in serious conduct with respect to driving, other road users, including public officials, would be placed at risk of physical harm.
The Tribunal considers the harm which would be caused were the Applicant to commit further drug offences or engage in serious conduct with respect to driving to be very serious.
With respect to the likelihood of engaging in further criminal or other serious conduct, the Applicant’s former representative submitted that the Applicant’s risk of re-offending is low and that he has reasonable prospects of rehabilitation.[80] The Applicant submitted that he had ‘put in, like, a lot of work this time…been doing all these programs and all this stuff’ and that he is willing to change.[81] He said that in contrast with last time (that is, being in either Casuarina Prison or Yongah Hill Immigration Detention Centre), he had completed courses in Acacia Prison and had plans upon his release.[82]
[80] Applicant’s SFIC, [2] and [34].
[81] Transcript, pp 102 and 106.
[82] Transcript, p 105.
The Minister submitted that that the seriousness of the Applicant’s offending was such that any risk of re-offending would be unacceptable.[83] It was contended that there remains a significant likelihood of the Applicant re-offending.[84] This was because the Applicant had previously indicated a desire to do better, insight and maturity – yet had re-offended in a more serious manner and despite a previous visa cancellation.[85] The Minister argued that there was minimal evidence that the Applicant had addressed any of his outstanding treatment needs,[86] and that his evidence before the Tribunal demonstrated limited insight, including minimisation of his role in the offending. It was also submitted that protective factors, such as his daughter or familial support, were not sufficient to prevent serious offending in 2023 and seem to be of less significance today and accordingly unlikely to prevent re-offending in the future.[87]
[83] Respondent’s SFIC, [43]-[45].
[84] Respondent’s SFIC, [46].
[85] Respondent’s SFIC, [47]-[49].
[86] Respondent’s SFIC, [51].
[87] Transcript, pp 90, 104
In cross-examination the Applicant was taken to paragraph [98] of Senior Member Evans-Bonner’s decision relating to the previous cancellation of the Applicant’s visa, where the Tribunal quoted the Applicant’s purported maturity and insight into his prior offending. In response, the Applicant accepted that he knew in March 2023 that negative peers or negative influences could lead to further offending.[88] But with respect to his current risk of re-offending he contended that he ‘got out with…no real support’ last time,[89] and that the supports he would have this time are more concrete and are after he completed courses whilst in prison.[90]
[88] Transcript, page 34.
[89] Ibid.
[90] Transcript, page 35.
The Applicant provided the Tribunal with a bundle of certificates or letters from Acacia Prison relating to the completion of a Yoga programme, four sessions of individual counselling with a social worker and three sessions of an Alcohol and Other Drugs (AOD) treatment readiness program.[91] The letter from the social worker indicated that the Applicant would be eligible to attend counselling sessions in the community for six months upon release.[92] The delegate was provided with certificates indicating completion of a Men’s Circle Support Group in April 2024,[93] ReSet Drug and Alcohol Brief Intervention Program in February 2024,[94] and participation in the Waalitj employment and training program since January 2024.[95] He told the Tribunal that he was working as a youth mentor in Acacia and that he wants those young men to look up to him.[96]
[91] A2.
[92] A2, page 3.
[93] R1, G3, page 73.
[94] R1, G9, page 74
[95] R1, G9, page 75.
[96] Transcript, page 105.
The Tribunal notes that the Applicant was refused release on a parole order by the Prisoners Review Board in March and April 2024, due to unmet intensive treatment needs which were not adequately addressed in any release plan.[97] According to a classification review record before the Tribunal, the Prisoners Review Board considered the Applicant presented a high risk of reoffending. The Board considered that until the Applicant had completed an appropriate treatment programme he was an unacceptable risk to the safety of the community.[98] His sentence ends on 14 April 2025.[99] The Applicant testified that he had been placed on a wait list for a six-month drug treatment programme in prison.[100] As at the time of the hearing the Applicant had not undertaken this program.
[97] R2, pp 7 [1.10], 46 [1.1]; Transcript, page 36.
[98] R2, TB1, page 46.
[99] Transcript, page 36.
[100] Transcript, page 36.
Having regard to the evidence before the Tribunal, and noting the absence of any other formal risk assessment, the Tribunal considers there to be significant risk of the Applicant re-offending. In making that assessment, the Tribunal considered that the Applicant’s evidence during the hearing, to the effect that it was his peers that encouraged his offending (whether it was not to stop the vehicle during pursuit by police or to sell drugs) and that he wanted to have ‘one good time’ upon release from immigration detention last year, demonstrated extremely limited insight into offending and his outstanding criminogenic treatment needs, noting unmet intensive treatment needs identified in the Prisoners Review Board consideration of the Applicant’s release on parole.
In the Tribunal’s view, the lack of insight into the offending and unmet treatment needs increases the likelihood that the Applicant may re-offend if released into the community. The Applicant was not eligible for specialist courses to deal with his outstanding treatment needs because of the length of his sentence. While this is unfortunate, in our view, the Applicant has not meaningfully addressed his substance abuse and consequential thinking. His plan for doing so in the community was deemed inadequate by the Prisoners Review Board and in the Tribunal’s assessment remains inadequate. Taken at its highest, the Applicant hoped to complete a rehabilitation program while in prison and pointed to the possibility of further counselling sessions in the community. He also sought to rely heavily on promised prosocial support from his family, partner and friends. However, community support and the potential for employment did not prevent the Applicant from engaging in serious offending on release into the community last time.
In any event, in the Tribunal’s view the rehabilitation undertaken by the Applicant to date has not addressed his treatment needs. While the Applicant claimed that he has insight into his offending, wants to be a positive role model and presence in the life of his daughter, partner’s son and other family members and will not re-offend, in the Tribunal’s view these commitments can be given little weight in the context of prior promises of reform and the decision to re-offend notwithstanding the prior cancellation and restoration of his visa.
While acknowledging the Applicant’s youth and demonstrated poor judgment, he must be assessed on the basis of his conduct and offending which was engaged in as an adult and with knowledge of the potential consequences including for his immigration status. Having regard to the information before it, the Tribunal is of the view that there is a significant risk of the Applicant re-offending. Given the very serious harm which would be caused by this conduct, the Tribunal finds that there is an unacceptable risk to the Australian community. This weighs heavily against the grant of a visa to the Applicant.
Conclusion – Protection of the Australian community
Para 8.1.2(1) of Direction no. 110 provides that the Tribunal 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, and that 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. In the Tribunal’s view, there is a need to protect the Australian community from the risk of harm posed by the Applicant. The Tribunal considers that risk to be unacceptable.
The Applicant poses an unacceptable risk to the Australian community. For this reason, this primary consideration weighs strongly against revocation.
Family violence committed by the Applicant
This consideration does not arise on the evidence before the Tribunal.
Strength, nature and duration of ties to Australia
The Tribunal is required to consider any impact of the decision on the Applicant’s immediate family members in Australia.[101] The Tribunal must also consider the strength, nature and duration of any other ties that the Applicant has to the Australian community, having regarding to how long he has resided in Australia and the strength, duration and nature of any family or social links with citizens, permanent residents and/or people who have an indefinite right to remain in Australia.[102]
[101] Direction no. 110, para 8.3(1).
[102] Direction no. 110, para 8.3(2).
The Applicant is 22 years old and has resided here since he was three years of age. He arrived on a Refugee visa form Libera (via Guinea) with his adopted mother (his aunt) and grandmother. His parents moved to Ivory Coast and he is not in contact with them.[103] His upbringing can be fairly described as unstable and it would appear that he did not have an appropriate male role model.[104]
[103] ASFIC.
[104] See R1, G5, page 42.
The Applicant’s family in Australia include his adopted mother (Ms SoB), two other aunts (Ms SeB and Ms PB), younger sister (Miss EB), younger brother/cousin (Master V) and his grandmother (Ms EB). The Applicant has six minor cousins, who are the children of his aunts.[105] The delegate was provided with letters of support from the Applicant’s adoptive mother, grandmother and aunts.[106] Ms SeB testified that the Applicant used to live with her and some of her children for almost a year in 2015,[107] and that she had indicated to the Applicant that he could come and live with them (in Melbourne) to get away from his friends.[108] She wrote on behalf of herself and the Applicant’s grandmother, Ms EB, that she had suffered high blood pressure and a stroke and that his removal would place her health at further risk.[109] Ms EB wrote her own letter in similar terms.[110] The Applicant testified that being in gaol has impacted his grandmother severely, and that he had moved from her care to that of his adoptive mother due to his grandmother’s health.[111]
[105] Transcript, page 48.
[106] See G, pp 93, 97-98.
[107] Transcript, pp 80-81.
[108] Transcript, pp 81-82.
[109] R1, G15, page 98.
[110] R1, G15, page 93.
[111] Transcript, page 109.
Ms SoB, the Applicant’s adoptive mother, provided evidence on the Applicant’s commitment to changing and cutting ties with negative peers. She notes he can live with his aunt in Melbourne or in Perth and that the family would be devastated if he was removed. She states they would not be able to contact him in Liberia or visit him.[112] She testified before the Tribunal that she believes the Applicant has grown up and that she has agreed he can live with her. She asked that he be given a second chance.[113]
[112] R1, G15, page 97.
[113] Transcript, page 70.
The Applicant has a daughter, Miss Z, who is four years of age and lives with his ex-partner (Ms W) in Banksia Grove. Ms W did not give evidence before the Tribunal but it was accepted that she would be impacted by a decision to the extent that Miss Z would be impacted by her father’s removal from Australia.[114] The Applicant contended he lived with Ms W and her parents when Miss Z was born. Miss Z and Ms W left Australia at the end of 2020 when Miss Z was 6 or 7 months old and returned in 2022 when the Applicant in detention.[115]
[114] Transcript, page 94.
[115] Transcript, page 27.
The Applicant met his most recent partner, Ms BO, in 2022 – when he was in immigration detention.[116] They broke up two or three months prior to the hearing before the Tribunal and had an ‘on again, off again’ relationship but still love one another.[117] Ms BO is a nurse and has a two-year-old son, Master AO. The lived together for the brief period of 17 days in which the Applicant was in the community from late March 2023.[118] Ms BO indicated that she was not aware that the Applicant had been drug dealing during this time, she thought that he was a different person around her than he was around his friends.[119] She noted that the Applicant had treated her son like he was his own, and that the way he interacted with her son had been helping her out and was ‘really good’.[120] The Applicant provided the delegate with photographs of both his daughter, Miss Z, and Master AO, including from visits in detention.[121]
[116] See Transcript, page 85.
[117] Transcript, pp 85-87.
[118] Ibid.
[119] Transcript, pp 86-87.
[120] Ibid.
[121] R1, G9, pp 68-72.
Lastly, two friends – Mr OM and Mr T, also provided the delegate with letters of support.[122] Mr OM testified at the hearing, indicating that he grew up with the Applicant in the sense that they were in similar circles in High School.[123] Mr OM works on the mines in remote Western Australia.[124] He indicated that he was in the process of building a house and that he was thinking of asking the Applicant to come and live with him and his partner (to get right people around him),[125] and that he had discussed offering the Applicant a job as a trade assistant with his boss (in general terms and without disclosing the Applicant’s full history).[126] Mr T notes the Applicant is the ‘embodiment of virtues such as humility, respect, and unwavering loyalty’. He speaks to his commitment to personal growth and positive change and to his involvement with the church community.[127]
[122] R1, G15, pp 91-92, 96.
[123] Transcript, page 75.
[124] Transcript, page 76.
[125] Transcript, page 78.
[126] Transcript, page 77.
[127] R1, G15, page 96.

The Applicant’s adopted mother describes any potential removal of the Applicant as ‘unquestionably wrecking, especially for [Miss Z]’.[128] His aunt and grandmother have expressed similar sentiments.
[128] G, page 97.
In his personal circumstances form, the Applicant indicated he was in the army cadets in 2019 and was a church volunteer and mentor at Hillsong Church on the Gold Coast in Queensland in 2015. There was limited information regarding these activities. He also claimed to be a regular attendee of Wangara Kingdom City Church in Perth and to have participates in rugby league in Queensland, New South Wales and Western Australia. Whilst there was limited evidence of meaningful contribution to the Australian community through employment and other links, the Tribunal does not consider this weighs against the Applicant in circumstances where he is only 22 years of age and has lived in Australia since he was three.
The Tribunal accepts that the Applicant’s immediate family will be personally impacted by any decision not to revoke the visa cancellation and that the Applicant has long-standing and enduring family and social ties to the Australian community. This primary consideration weighs heavily in favour of revocation.
Best interests of minor children in Australia affected by the decision
Paragraph 8.4 of Direction no. 110 requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under paragraph 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ. Paragraph 8.4(4) of Direction no. 110 goes on to outline the factors that a decision-maker must consider when determining the best interests of a child affected by the decision where relevant.
Miss Z
Miss Z is the Applicant’s four-year-old daughter to his former partner, Ms W.[129] Miss Z lives with her mother and their family in Banksia Grove.[130] They returned to Australia in 2022, after living in the United Kingdom from the end of 2020 when she was six or seven months old.[131] The Applicant testified that he speaks to her by telephone two to three times per week.[132] He told the Tribunal his daughter thinks that he is on an extended holiday.[133]
[129] R1, page 58.
[130] Transcript, page 57.
[131] Transcript, page 27.
[132] Transcript, page 56.
[133] Transcript, page 110.
The Applicant’s mother testified that she had not seen Miss Z for over a year, but that her daughter (the Applicant’s sister) had seen her relatively recently.[134]
[134] Transcript, pp 70-71.
When asked about future plans, the Applicant frankly indicated that his former partner (Ms W) wanted to see him change first before letting him back into their lives and that his goal was to get out and get a job before he would actually be in his daughter’s life fully.[135] He accepted that he would only be able to see his daughter under supervision from Ms W and her mother (the child’s grandmother).[136] The Applicant had not taken his daughter to school or daycare before, but he wanted to be there for things of that kind in the future.[137]
[135] Transcript, page 56.
[136] Transcript, pp 57-58.
[137] Transcript, page 64.
When questioned by Mr Byrnes, the Applicant also accepted that any further offending would have an impact on his daughter, particularly with respect to what her family would tell her about her father.[138] He also thought that his daughter would be affected by his absence, particularly on Father’s Day and events like that.[139]
[138] Transcript, page 58.
[139] Transcript, page 64.
The Applicant submitted that revocation was in his daughter’s best interests and that her interests should be given the highest weight of any relevant consideration and that they outweigh all other considerations.[140]
[140] Applicant’s SFIC, [42]-[43].
The Minister quite properly accepted that revocation would be in Miss Z’s best interests.[141] However, the Minister submitted that their relationship is relatively limited in the circumstances and has in effect been non-parental to date.[142] Noting in particular the very limited time the Applicant has spent with Miss Z in the community and his long term separation from her mother, the Tribunal agrees with that assessment.
[141] Transcript, pp 95-96.
[142] Ibid.
The Tribunal notes Miss Z is relatively young and there are a significant number of years before she turns 18 during which time the Applicant could make a positive contribution to her development and upbringing provided he ceases engagement with drugs and does not reoffend.
The Tribunal finds that revocation is in Miss Z’s best interests despite the Applicant’s limited contact with the child to date. In the Tribunal’s view, separation from Miss Z is likely to have a detrimental emotional impact on her well-being and development, noting that any physical separation would likely be permanent given the child resides with her mother who has been her custodial parent since birth. Noting the limited nature of the relationship to date and the uncertainty as to the degree to which Ms W will permit future contact, the Tribunal finds that Miss Z’s interests weigh moderately in favour of revocation in all of the circumstances.
Master AO
Master AO is two years old and lives with his mother in Clarkson.[143] Master AO is the son of the Applicant’s former partner, Ms BO, who the Applicant commenced a relationship with while he was in immigration detention. Master AO does not have a father in his life, and he has only met the Applicant in person for the 17 days in which he was in the community last year.[144]
[143] Transcript, page 57.
[144] Transcript, page 58.
The Applicant testified that he would play the father figure for Master AO, in the sense that he would help him learn to speak and by being there for him.[145]
[145] Transcript, page 59.
The Minister accepted that revocation would be in Master AO’s best interests but submitted that their relationship was loosely described as the Applicant being a father figure to the child and that this relationship was purely incidental to the Applicant’s relationship with the child’s mother.[146]
[146] Transcript, page 96-97.
His mother testified that she remains good friends with the Applicant, even though they are not presently in a relationship. She accepted that the Applicant’s relationship with her son was incidental to his contact with her.[147]
[147] Transcript, page 87.
The Applicant accepted that he had probably oversold his role with Master AO as being a ‘24/7 parent’ in the representations made to the delegate but maintained that he still had a relationship with the child, who he talked to like he was his own son.[148] He said that he felt a connection with the child after speaking to him when he was born and the Applicant was in custody and when they lived together for 17 days.[149]
[148] Transcript, pp 110-111.
[149] Transcript, page 111.
The Tribunal notes Master AO is young and there are a significant number of years before he turns 18 during which time the Applicant could make a positive contribution to his life, provided he ceases engagement with drugs and does not reoffend.
The Tribunal finds that revocation would be in Master AO’s best interests, but that this should only be given limited weight in all of the circumstances.
Master V
The Applicant has an 11-year-old adoptive brother/cousin, who lives with the Applicant’s step-mother and his 19 year old sister in Perth.[150] The Applicant testified that he used to play games with his brother and that when he went to prison it was hard for his brother – especially in circumstances where there was no one else for him to play with or go out to the park with.[151] The Applicant said that when he got out of detention last year, he bought his brother a gaming console.[152]
[150] Transcript, pp 47-48.
[151] Transcript, pp 109, 112.
[152] Transcript, page 112.
The Applicant’s mother testified that the Applicant could come and live with them if he was released and that she had three rules: No going out late; No alcohol or smoking; and attendance at church.[153] The Applicant stated that he wanted to be a positive role model for his family including his brother.
[153] Transcript, page 68.
The Tribunal notes Master V is still an adolescent and there are a number of developmentally important years before he turns 18 during which time the Applicant could make a positive contribution to his life, provided he ceases engagement with drugs and does not re-offend.
The Tribunal accepts that revocation would be in Master V’s best interests and that this should be given moderate weight in all of the circumstances.
The Applicant’s Cousins in Melbourne
The Applicant has six minor cousins in Melbourne: Diamond (10), Ruby (eight), Joelle (five), Tracy (13), Joe (nine) and Jason (seven).[154] They are the children of his aunts and there are other people performing the parental roles.[155] The Applicant testified that he had only talked with some of them whilst he has been in gaol but that he is very close with them.[156] He also said that he used to look after Diamond and was the oldest child of that generation.[157] Ms SeB confirmed this with respect to her children (Diamond, Ruby and Joe), save that the Applicant had yet to meet either Ruby and Joe in person.[158] There was limited information before the Tribunal to suggest the interests of these children materially differed from one another and the Tribunal has considered their interests together.
[154] Transcript, page 48.
[155] Transcript, page 60.
[156] Transcript, page 61.
[157] Transcript, pp 109-110.
[158] Transcript, pp 81, 83.
The Applicant was asked why his cousins would be impacted by a decision in this matter, and he responded that: ‘The last time I talked to them, they’re happy to hear from – they’re always happy to hear from – they’re little kids. They’re always happy to hear from me. But anybody – like, anybody in my family will be impacted if I leave, big time, because everybody had a moment with me.’[159]
[159] Transcript, page 112.
The Tribunal notes the children are all relatively young and there are a significant number of years before they turn 18 during which time the Applicant could make a positive contribution to their lives as a cousin, again provided he ceases engagement with drugs and does not reoffend.
The Tribunal accepts that it would be in the best interests of each of the Applicant’s minor cousins for the cancellation decision to be revoked. The Applicant would appear to have more of a relationship with Diamond than he does with the other children resident in Melbourne. Ultimately, their relationship is non-parental and there are other people performing the parental roles. In those circumstances, the Tribunal gives each child’s best interests limited weight in favour of revocation.
Conclusion on the best interests of relevant minor children
The Tribunal finds that revocation would be in the best interests of each relevant minor child in the Applicant’s life. Cumulatively, their best interests weigh moderately in favour of revocation.
Expectations of the Australian community
The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Sub-paragraphs 8.5(1) and (2) of Direction 110 set out various ‘norms’ that are to be applied by the Tribunal in assessing whether an Applicant should be allowed to remain in Australia.
Paragraph 8.5(1) of Direction no. 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that 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 would not allow them to enter or remain in Australia.
Paragraph 8.5(2) directs that 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.
Direction no. 110 notes that 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 particular kinds. Paragraph 8.5(2) directs that, in particular, 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-paras 8.5(2)(a)–(f).
Paragraph 8.5(3) further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. In doing so, para 8.5(3) arguably further qualifies the ‘norm’ expressed in para 8.5(1), which refers to the ‘unacceptable risk’ of conduct being engaged in. This makes it clear that a ‘measureable [sic] risk’ of physical harm to the community is not required for the community expectation that the non-citizen not hold a visa to be engaged, where serious character concerns are raised through the persons conduct or offending.
This consideration 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 submitted, through his former representative, that this consideration weighed in favour of revocation because the community would not expect that a child would be brought up without a father and the community would be compassionate towards the Applicant and his daughter.[160] This submission was misconceived in light of the clear terms of the Direction, particularly para 8.5(4) and previous appellate authority on similar clauses.[161]
[160] Applicant’s SFIC, [44]-[46].
[161] See FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454; See also DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3; 301 FCR 344.
The Applicant has engaged in serious conduct in breach of the expectation contained within paragraph 8.5(1) that he will obey Australian laws. He poses an unacceptable risk of doing so again. That conduct is not identified in paragraph 8.5(2) of the Direction, in terms of specific conduct for which the community expects that the Government can and should cancel a person’s visa.
However, in assessing weight to be afforded to this primary consideration, the Tribunal is guided by the principles in para 5.2 of Direction no. 110. Paragraph 5.2(2) states that the safety of the Australian Community is the highest priority of the Australian Government. However, the principles also note the increased tolerance afforded to non-citizens who have been in the community from a very young age (para 5.2(6)). This increased tolerance applies to the Applicant who arrived in Australia when he was three years of age. The Tribunal finds he would be afforded some additional tolerance for his offending behaviour in light of that principle. Overall, and given the safety of the Australian community takes the highest priority,[162] this primary consideration weighs heavily against revocation.
[162] Direction no. 110, para 5.2(2).
Legal consequences of the decision
The Tribunal is required to consider the legal consequences of its decision.[163] There are three major consequences of visa refusal or cancellation under s 501 and related provisions:
(a)a prohibition on applying for other types of visas under s 501E of the Migration Act (other than a protection visa or a bridging (removal pending) visa);
(b)refusal/cancellation of other visa applications/visas under s 501F; and
(c)periods of exclusion and special return criteria may apply under s 503 and Special Return Criteria 5001 and 5002 in Sch 5 to the Migration Regulations. This includes permanent exclusions where SRC5001 applies unless the Minister acts personally to grant a permanent visa to the person.
[163] Direction no.110, para 9(1)(a) and para 9.1.
Generally, if a visa is cancelled its former holder becomes an unlawful non-citizen immediately after cancellation.[164] If the reviewable decision was to be affirmed, the Applicant would be liable to be detained pending his removal as soon as reasonably practicable.[165] In the Applicant’s case, he would be detained once he completes his sentence or is paroled. The only basis upon which the immediate obligation to remove him from Australia would be stayed would be if the Applicant applied for a protection visa.[166]
[164] Migration Act s 15.
[165] Migration Act ss 189, 196 and 198.
[166] Migration Act s 198(5A).
Moreover, Australia’s non-refoulement obligations are technically irrelevant to removal and the duty to remove as soon as reasonably practicable arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.[167]
[167] Migration Act, ss 197C(1)-(2).
Nevertheless, the obligation to remove an unlawful non-citizen under s 198 does not arise if a ‘protection finding’ has been made in respect of a finally determined protection visa application.[168]
[168] Migration Act, s 197C(3).
Whilst the Applicant’s visa is relevantly called a ‘refugee visa’, and noting the Tribunal has not been provided with his Departmental visa file demonstrating the basis upon which it was granted (that is, the basis upon which cl 200.211 of Sch 2 of the Regulations was met), this visa does not, of itself, involve a protection finding being made in respect of the Applicant for the purposes of s 197C of the Migration Act. The visa held by the Applicant is not a ‘protection visa’ of a kind described in s 35A of the Act. Accordingly, in the Tribunal’s view the obligation to detain and remove the Applicant applies, subject to the outcome of any further visa application including an application for a protection visa. He would be subject to removal as soon as his substantive appeal rights are exhausted, or he applies for another visa if eligible to do so.
In M1/2021,[169] the High Court considered the following question:
In deciding whether there was another reason to revoke the Cancellation Decision pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth), was the Delegate required to consider the plaintiff’s representations made in response to the invitation issued to him pursuant to s 501CA(3)(b) of the Migration Act, which raised a potential breach of Australia’s international non-refoulement obligations, where the plaintiff remained free to apply for a protection visa under the Migration Act?
[169] [2022] HCA 17 (Keifel CJ, Keane, Gordon and Steward JJ (with whom Gageler J agreed)).
The High Court found that in deciding whether there was ‘another reason’ to revoke the Cancellation Decision pursuant to s 501CA(4)(b)(ii) of the Migration Act, where the plaintiff remained free to apply for a protection visa under the Migration Act:[170]
(1)the Delegate was required to read, identify, understand and evaluate the plaintiff's representations made in response to the invitation issued to him under s 501CA(3)(b) that raised a potential breach of Australia's international non‑refoulement obligations;
(2) Australia's international non‑refoulement obligations unenacted in Australia were not a mandatory relevant consideration; and
(3) to the extent Australia's international non‑refoulement obligations are given effect in the Migration Act, one available outcome for the Delegate was to defer assessment of whether the plaintiff was owed those non-refoulement obligations on the basis that it was open to the plaintiff to apply for a protection visa under the Migration Act.
[170] M1/2021 at [9].

The Applicant has never held a protection visa and as such he would not be the subject of the bar found in s 48A of Migration Act on making an application for a protection visa should the visa cancellation not be revoked. This means that he would be able to make an application for a protection visa, where any claims for protection would be considered in detail and where the Applicant would be afforded another opportunity to provide evidence in support of those claims. The Applicant indicated at the hearing he was aware he could apply for a protection visa if he was unsuccessful in the current application.[171]
[171] Transcript, page 62.
The Applicant informed the delegate that he had fears of returning to Liberia. He described that country as ‘unknown’ and a ‘country suffering extreme civil unrest. My life would be in danger due to the break down in law and order and where young males are targeted. I have no family or friends in Liberia and would be homeless, no money and no support. My life would become yet another tragedy of genocide sweep[ing] Africa.’[172] His former representative confirmed that this was a non-refoulement claim and added that the Applicant would not have state protection.[173] At the hearing before the Tribunal, the Applicant testified that he had not set foot in Liberia and raised concerns about corruption, being seen as an outsider and unemployment.[174] When asked about his concerns with respect to Liberia he stated:[175]
Well, so I just, it’s like, I’ve never been to Liberia, we all know. I’ve never been to Liberia before. Like, what I’ve seen, I’ve never looked into Liberia like that, but what I’ve seen is, I’ve seen a lot of corrupt stuff that’s happening. The law and order is corrupt, everything. Most things that I’ve seen and heard is corrupt. And like, I feel like personally I will be in danger of my life because like, I’m an outsider. I have not been or even been near Liberia before. I’ve never even put foot out of this country to even talk about Liberia. I’ve never put foot out of this country. I feel like the unemployment rate is likely high, quite high, as in most countries, especially places like Liberia. It will be quite high for me to even talk about jobs and I just feel like I would have absolutely nothing there, so I don’t even know what I would do. I would probably just sleep – worst case, sleep at the airport, worst case, because I would not know where to go. I would not know who to go to, or nothing like that. So there’s nothing else I could really say about me being in Liberia.
[172] R1, page 66.
[173] Applicant’s SFIC, [47]-[49].
[174] Transcript, pp 62-63.
[175] Transcript, pp 62-63.
His mother and aunt expressed similar concerns in evidence before the Tribunal.[176] When asked if she had concerns about her son’s return to Libera his mother stated that:[177]
My concern about BNPB returning to Liberia, I have to be bold with you. BNPB, he doesn’t know anyone in Liberia. We – doesn’t have – we doesn’t know anyone in Liberia. So BNPB going to Liberia, it would just be like something else. So, yes.
… Since we came here, we been here, we settled here. So BNPB doesn’t know no one in Africa. Even me. As me, I am sitting here, I don’t know anyone in Africa. So it would be very – to me, I would say it would be racist for BNPB to – like risky, not racist.
…Risky for BNPB to go back Africa. Because BNPB was almost like a baby when we came here. So, yes, even me – for me to go Africa, to say I am going Africa, and – and I will get here sometime. So we don’t have family there. My mum is in Melbourne. My other sister, they are in Melbourne.
[176] R1, G15, pp 97; Transcript, page 72.
[177] Transcript, page 72.
No country information or other information regarding the Applicant’s claims was provided to the Tribunal.
Mindful of the obligations outlined by the High Court in M1/2021, the Tribunal has carefully read and evaluated the Applicant’s representations with respect to the non-refoulement obligations that he claims are owed to him. For the reasons outlined below, the Tribunal did not consider it necessary or preferrable to make findings as to whether the Applicant is owed non-refoulement obligations. The Tribunal considers such findings would be considered in detail and assessed in the context of any protection visa application.
The Tribunal accepts that the Applicant is a Liberian national on the basis that he did not raise any issue of citizenship or nationality and identified himself as a Liberian citizen. The Tribunal also accepts that he left Liberia as a child and travelled with family members to Australia on a refugee visa. The Tribunal notes the Applicant’s immediate remaining family members live in Australia and he is not in contact with his parents who he believes returned to the Ivory Coast.
There was very limited evidence before the Tribunal regarding the claims raised by the Applicant. Those claims were raised in very general terms. The Applicant failed to provide any evidence other than assertions by himself and by members of his family that he would face harm for reasons giving rise to a non-refoulment obligation on return to Liberia. No country information was before the Tribunal and no information regarding prevailing circumstances in Liberia, including the impact of generalised violence or civil war in Liberia. Similarly, there was no information offered by the Applicant in support of the contention that he would be unable to access health care or other social services or would be unable to subsist in Liberia. There was no information that any denial of basic services would arise for a reason on refugee grounds[178] or that the availability of social services or supports would raise a real risk of significant harm meeting complementary protection thresholds.
[178] See Migration Act s 5J.
Without making findings regarding whether the Applicant meets the criteria for protection on this basis, given the lack of detail in the Applicant’s claims to fear of harm, the Tribunal is not satisfied that this claim as currently articulated gives rise to an issue of non-refoulement, such as might weigh significantly in favour of revocation of the cancellation decision.
The Tribunal accepts that it must ‘read, identify, understand and evaluate the plaintiff's representations made in response to the invitation issued to him under s 501CA(3)(b) that raised a potential breach of Australia's international non‑refoulement obligations’.[179] This is necessary to properly assess whether there is any other reason why the mandatory cancellation of the Applicant’s visa should be revoked. However, the Tribunal considers that in circumstances such as the Applicant’s, where protection claims can be fully assessed against the criteria in the Act and ‘a protection finding’ made if the criteria are satisfied, it is preferrable to defer determination of those matters until such time as the Applicant makes an application for a protection visa.
[179] M1/2021 at [9].
The process for determining if protection obligations are owed is set out in detailed provisions of the Migration Act, including specific procedural obligations designed to protect the interest of persons seeking protection. Further, since the enactment of s 197C(3), where an applicant is found to be owed protection, they would not be ‘refouled’.
It was put to the Applicant during the hearing that he could apply for a protection visa and that in those circumstances and having regard to the limited material before the Tribunal to support his claims, the Tribunal should defer consideration of non-refoulement obligations to allow consideration in any protection visa application process.[180] The Applicant did not have any submissions to make on this point and the Minister invited the Tribunal to defer consideration of non-refoulment.[181]
[180] Transcript, page 63.
[181] Transcript, pp 100-101, 113-114.
The Tribunal notes that if the Applicant were to apply for a protection visa, and a protection finding were to be made, he could not be removed to Liberia. Whether he met the criteria for a protection visa would depend, in part, on the relevant decision maker’s consideration of the criteria which could include character criteria. However, refusal of any other visa would carry its own rights of review.
In those circumstances and noting para 9.1.2(2) of Direction no. 110 and the High Court’s decision in M1/2021, while noting the Applicant has raised general concerns to fear harm on return to Liberia for reasons of the ongoing civil war in that country, available services including healthcare and his own unfamiliarity with Liberia, the Tribunal has decided that it would be appropriate to defer detailed consideration of the Applicant’s claims for protection to a protection visa application process, if the Applicant elects to apply.
As noted above, the Tribunal accepts that the Applicant would be subject to detention pending resolution of these issues once he is released from prison. The Tribunal accepts that prolonged detention or detention of unknown duration would cause the Applicant hardship and would separate him from his family on an ongoing basis. While the Applicant did not raise any specific issues related to entering detention following completion of his prison sentence in April 2025 (or before, if paroled) the Tribunal accepts ongoing detention would cause him personal hardship.
The legal consequences identified above (namely detention, removal, exclusion and restriction on further visa applications) are the intended consequences of the cancellation of a visa under s 501 of the Migration Act. While the Tribunal accepts the Applicant may be placed in immigration detention awaiting determination of any protection visa application and that this may cause him and his family ongoing hardship, the Tribunal is not satisfied significant weight should be placed on those matters having regard to the very general and unsupported nature of his protection claims to date and the availability of the protection visa process for allowing detailed consideration of those claims. The Tribunal notes that claims raised with respect to the challenges he may face in the event he is removed in re-establishing himself in Liberia are considered, and weighed, further below in the context of the consideration of the extent of impediments if removed to that country.
The Tribunal accepts that, were the Applicant subject to removal, the effect of the exclusion and other visa applications would cause permanent or at least extended separation from his family members and considers some weight should be placed on that prospect. However, given those consequences arise as an intended consequence of the failure to satisfy the character requirements of the Act, the Tribunal affords only slight weight to those consequences in favour of non-revocation.
In those circumstances, this consideration weighs in favour of revocation. However, the Tribunal considers only slight weight should be afforded this consideration in the Applicant’s case.
Extent of impediments if removed
The Tribunal must consider the extent of any impediments that the Applicant may face if removed from Australia to Liberia, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account the Applicant’s age and health, whether there are substantial language or cultural barriers, and any social, medical and/or economic support available to him in Liberia.[182]
[182] Direction no. 110 paras 9.2(1).
The Applicant submitted that he would be in danger if returned to Liberia. He said it was a poor country to his knowledge and being 22 years of age and unfamiliar with the place he would be at a disadvantage.[183] In evidence before the Tribunal he stated:[184]
No. Well, you can say that, but I would say, like, it’s not – like, I wouldn’t be – I wouldn’t cope there. I know that. The fact that I’ve been in Australia my whole life, since I was two years old, I’ve been in Australia my whole life, know nothing about – nothing at all about Liberia, you know. Worst case, I would be homeless, like, I got nothing there. No – no mama, dad, no cousins – no one. We all came here. So even me just working there, like I wouldn’t even know who to even talk to to even find a job. At like my age, I’m 22 years old, I wouldn’t even – there’s people that’s probably there that’s in their 30s and doesn’t have a job. So me going there and I will have nothing. Considering that I’m actually from, actually not really from the country, because I was there for a year, that doesn’t mean that I’m fully from the country. I’ve been raised in Australia, and it will be hard for me there to even get a job, or to line up a job.
…
I just – yes, I just feel like if I do – if I really – if I do go back to Liberia, I will actually be in danger, because what do I know? You know, going to a country – just going to a country with nothing. Like, that is already a poor – it is already a poor country, that I know of. So the fact that me going there is – what would I get out of it that – I am going to a country that I have never been. I am 22 years old. It is already a poor country, so someone that is already older than me, that is there, and doesn’t – that has been there for a while, that hasn’t made no process of – me going there, what would I do? What process would I make being there, you know?
[183] Transcript, page 115.
[184] Transcript, pp 67, 115.
These concerns were supported by family members including his mother and aunts.[185]
[185] Transcript, page 72; R1, G15, pages 93, 97, 98.
The Minister contended that the Applicant was a healthy fit young man, with no diagnosed medical or mental issues, who could potentially work and who speaks English, being the formal language of Liberia.[186] However, in making that submission the Minister frankly and fairly conceded that there would be ‘real consequences’ and impediments that the Applicant would face if he were removed to Liberia.[187]
[186] Transcript, page 98.
[187] Ibid.
The Tribunal considers based on the limited material before it that there would likely be real impediments to the Applicant establishing himself and maintaining basic living standards in Liberia. While he is young and healthy, his lack of familiarity and family supports in that country would present a significant hurdle to his re-establishing himself in that country, even if support is available to him from family in Australia. The Tribunal considers this weighs moderately in favour of revocation.
Impact on Australian business interests
There is no evidence of any impact of the decision on an Australian business interest, especially one which would significantly compromise the delivery of a major project or important service in Australia.[188]
[188] Direction no. 110, cl 9.3(1).
The Tribunal considers this consideration should be afforded neutral weight in the Applicant’s case.
CONCLUSION
The Tribunal is required to bring together the relevant considerations in this matter and consider, as part of a single evaluation, their relative significance in terms of whether the Tribunal is ultimately satisfied that there is ‘another reason’ why the mandatory cancellation decision should be revoked.
In determining the weight to be applied to each consideration, the Tribunal has considered all the primary and other relevant considerations and weighed them in light of the evidence and findings and according to the guidance provided by Direction no. 110. The Tribunal has gone on to compare and balance all of the considerations to determine whether there is another reason the cancellation should be revoked.
The Tribunal has considered all of the primary considerations, including the protection of the Australian community which weighs strongly against revocation in the Applicant’s circumstances. Family violence does not arise on the evidence before the Tribunal. The strength, nature and duration of the Applicant’s ties to Australia carry heavy weight in favour of revocation. The best interests of the Applicant’s daughter, Master AO, younger brother and cousins weigh moderately in favour of revocation. The expectations of the Australian community would be that the visa would remain cancelled and this consideration weighs heavily against revocation.
In relation to the relevant ‘other considerations’ identified in Direction no. 110, the Tribunal finds that the legal consequences of the decision weighs slightly in favour of revocation and the extent of impediments if removed weighs moderately in favour of revocation in the Applicant’s case. However, the remaining considerations weigh neither for or against revocation.
Paragraph 7(2) of Direction no. 110 states that primary considerations should generally be given greater weight than the other considerations. Further, it states that primary consideration 8.1 (protection of the Australian community) is generally to be given greater weight than other primary considerations.
Having weighed the considerations in favour of the revocation of the cancellation of the Applicant’s visa and the considerations against revocation, the Tribunal finds that the considerations weighing against revocation being the primary considerations of the protection of the Australian community and the expectations of the Australian community, outweigh those weighing in favour of revocation, being the primary considerations of the strength, nature and duration of ties to Australia and the best interests of minor children and the other considerations of the legal consequences of the decision and the extent of impediments if removed.
In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction no. 110, the Tribunal is not satisfied that there is ‘another reason’ why the cancellation decision should be revoked.
Consequently, the correct decision is that the delegate’s decision should be affirmed.
DECISION
The decision of the delegate of the respondent dated 6 August 2024, not to revoke the cancellation of the Applicant’s Refugee Visa, is affirmed.

166. I certify that the preceding one hundred and sixty-five (165) paragraphs are a true copy of the reasons for the decision herein of Deputy President S Burford and General Member J Papalia

............[SGD]..............................................
Associate
Dated: 8 November 2024

Date of hearing: 29 October 2024

Applicant: In person

Counsel for the Respondent: Mr J Byrnes

Solicitor for the Respondent: Mr B Mayne, Sparke Helmore Lawyers

Date of hearing:	29 October 2024
Applicant:	In person
Counsel for the Respondent:	Mr J Byrnes
Solicitor for the Respondent:	Mr B Mayne, Sparke Helmore Lawyers