BXTW and Minister for Home Affairs (Migration) - [2019] AATA 4446

BXTW and Minister for Home Affairs (Migration) [2019] AATA 4446 (1 November 2019)
Division:GENERAL DIVISION
File Number(s): 2019/4924
Re:BXTW
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:1 November 2019
Place:Sydney

The decision of the delegate dated 7 August 2019, to not revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa, is set aside. In substitution a decision is made to revoke the decision of 31 January 2018 which cancelled the Applicant’s visa.
.............................[SGD]...........................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation of the Applicant's Class TY Subclass 444 Special Category visa – s 501(3A) – Applicant failed to pass the character test – sentenced to a term of imprisonment for 12 months or more – whether there is another reason why the cancellation should be revoked – application of Direction No. 79 – weighing of primary and other considerations – decision under review set aside – decision substituted to revoke the original cancellation decision
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 35
Children and Young Persons (Care and Proceedings) Act 1998 (NSW), s 105
Children (Criminal Proceedings) Act 1987 (NSW) s15A
Crimes Act 1900 (NSW) ss 97, 112,
Migration Act 1953 (Cth) ss 501, 501CA,
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Hopkins v Minister for Home Affairs [2019] FCA 1697
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SECONDARY MATERIALS
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
1 November 2019
INTRODUCTION

The applicant is a 24 year old non-citizen. In June 2000, he came to Australia from New Zealand with his parents and three siblings. He was then five. He was granted a Class TY Subclass 444 Special Category (Temporary) visa.
The applicant’s country of birth is stated as “Unknown” on the Movement Form.[1] It is however not contested that he was born in the Cook Islands, and that therefore he is a citizen of New Zealand,[2] and that New Zealand is to be regarded as his “home” country for present purposes.
[1] G21, 99.
[2] The Citizenship Act 1977 (NZ), s 2, defines New Zealand to include the Cook Islands.
Section 501(3A) of the Migration Act 1958 (Cth) (the Act), provides that the Minister must cancel a non-citizen’s visa if the Minister is satisfied that the person does not pass the character test because, relevantly, the person has been sentenced to a term of imprisonment of 12 months or more, and the person is serving a term of imprisonment on a full time basis in a custodial institution.
On 31 January 2018, a delegate of the Minister, acting under s 501(3A) of the Act, cancelled the applicant’s visa while the applicant was serving a sentence of imprisonment at Oberon Correctional Centre in New South Wales.[3]
[3] G22, 100.
On or about 29 September 2018, when the non-parole period specified in the sentence expired, the applicant was transferred to immigration detention.
Section 501CA(4) of the Act confers a power on the Minister to revoke the mandatory cancellation decision following representations by the person, but only if the Minister is satisfied that the person passes the character test, or that there is another reason why the mandatory cancellation decision should be revoked.[4]
[4] Hopkins v Minister for Home Affairs [2019] FCA 1697, per Katzmann J.
The applicant made representations so as to engage the discretionary power under s 501CA(4).
On 7 August 2019, the Minister’s delegate decided not to revoke the mandatory cancellation of the applicant’s visa (“the reviewable decision”).
On 13 August 2019, the applicant applied to this Tribunal to have the decision reviewed.
The matter was duly heard on 17 and 18 October. Each of the parties were legally represented.
At the commencement of proceedings, the solicitor for the applicant requested that I make a confidentiality order on the basis that some of the matters before the Tribunal related to earlier proceedings in the Children’s Court. The G-documents included applicant’s National Police Certificate dated 1 May 2018, as well as confidential reports relating to those proceedings.[5] There was also a claim by the applicant that he had been sexually assaulted as a minor.[6] The solicitor for the Respondent opposed the application.
[5] Psychological Report, 7 December 2017, TB8, 279;
Corrective Services NSW, Pre-sentence Report, 27 November 2017; TB8, 275;
[Drug and Alcohol Rehabilitation Centre] Report, 5 May 2017, TB7, 258;
Juvenile Justice Pre-sentencing Report, 26 May 2011, TB6, 240;
Juvenile Justice, Pre-sentencing Report, 15 April 2013, TB6, 208;
Juvenile Justice, Confidential Update Report, 6 March 2012, TB6, 127;
Juvenile Justice, Confidential Update Report, 16 May 2012, TB6, 178;
Juvenile Justice, Confidential Update Report, 7 September 2012, TB6, 159;
Juvenile Justice, Confidential Update Report, 9 October 2012, TB6, 167.
[6] G3, 26.
The provisions of s 105 of the Children and Young Persons (Care and Proceedings) Act 1998 (NSW) are also relevant. The section provides that:
(1AA) The name of a child or young person who is or has been under the parental responsibility of the Minister or in out-of-home care must not be published or broadcast in any form that may be accessible by a person in New South Wales, in any way that identifies the child or young person as being or having been under the parental responsibility of the Minister or in out-of-home care (however expressed).
Note : Identifying the child or young person as being or having been a foster child or a ward of the State, or as being or having been in foster care or under the parental responsibility of the Minister, or in the care of an authorised carer, are all examples of identifying the child or young person as being or having been in out-of-home care.
(1A) The prohibition in subsection … (1AA) applies to the publication or broadcast of the name of the child or young person concerned until:
(a) the child or young person attains the age of 25 years, or
….
Section 15A(1) the Children (Criminal Proceedings) Act 1987 (NSW) relevantly provides that:
The name of a person must not be published or broadcast in a way that connects the person with criminal proceedings if –
(a)the proceedings relate to the person and the person was a child when the offence to which the proceedings relate was committed.
After hearing from the representatives, I made the following order under s 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth):
(a)The publication or other disclosure of the name, address or any other information tending to reveal the identity of the applicant is prohibited; and
(b)The applicant’s name is to be substituted with the pseudonym “BXTW”.
In this decision, the applicant will be referred to as BXTW or simply as “the applicant”.
The prohibition in s 15A extends to any information, picture or other material that identifies the person or is likely to lead to the identification of the person (s 15A(5)). I have therefore decided to anonymise one of the witnesses who gave evidence to the Tribunal, in order to protect her identity. She will be referred to as Simetra.
BACKGROUND
On 30 March 2001 Community Services removed the applicant, then five years of age, and three siblings from his parents.[7] There are no official records before the Tribunal as to his placements. Some information can be gleaned from various files notes and other sources.[8]
[7] Currently known as the Department of Communities and Justice; previously known as the Department of Community Services (DoCS) and the Department of Family and Community Service (FACS).
[8] Interview of applicant at Bathurst Community Corrections, 29 June 2018: TB4, 82.
It appears that his mother and father were alcoholics and drug users. The removal occurred after an incident (or “accident” as the applicant called it when giving evidence),[9] when his younger brother was “disciplined” by his father and hospitalised for a dislocated arm or shoulder.
[9] Transcript, 17 October 2019, 41; TB6, 209.
The children were placed with foster parents, but not together. The children were placed with extended family members until 13 March 2004 when he and one brother were placed with new foster parents.[10] He has lost contact with the other brother and his sister.
[10] Juvenile Justice, Confidential Background Report, 15 April 2013. TB6, 208.
The applicant’s placement with this family ended formally on 1 September 2011, apparently, “due to [the applicant] consistently absconding and maintaining contact with his parents without his carer’s consent”.[11]
[11] TB6, 209.
It is a matter of concern that the applicant was, according to his evidence, sexually abused during his time in foster care. It is not clear where or precisely when this occurred. He gave evidence before the Tribunal that he told an adult when he was about 11, and that he was taken somewhere by an adult to report the matter, but when he was interviewed he was paralysed and could not speak.[12] The fact that he was abused as a child was not challenged at the hearing.
[12] Transcript, 17 October 2019, 40.
Although the placement ended officially in September 2011, it seems to have ended in a practical sense much earlier. He says that he was homeless from 13 or 14. His foster mother told a different story to Juvenile Justice in May 2011.[13] She said that her husband was a minister of religion, and that she was a full time housewife. She said that there were six adopted children and one child of their own living in their spacious home; the home was harmonious, and none of the children had been being in trouble with the law. Both parents stated that he had never been subject to any abuse, that the applicant had done well at school and was a well behaved boy and a quiet child who had never caused them any concerns in the past. At the time the Juvenile Justice report was written, she was unaware of him using alcohol and drugs and was not aware of any anti-social behaviour until he had become involved with a group at the school known as the grey gang. She said he had a history of being a story teller and had run away before. They had reported him missing on this occasion and were greatly relieved to know that he was safe.
[13] Juvenile Justice, Confidential Background Report, 26 May 2011. TB6, 243.
The applicant says that when he first started running away from home at around 14 he felt guilty about leaving his brother behind but thought that it was best for him. In a Confidential Background Report dated 7 September 2012, the author says that the applicant
has consistently maintained that he does not want to return to the home of his kinship foster carers… There have been issues raised in this placement regarding [the applicant] having to take responsibility of the six younger children in this placement. BXTW reported he would be physically disciplined if he did not care for the younger children. BXTW reported this was the reason he frequently absconded from this placement during the end of 2010 and the start of 2011 when BXTW first came to the attention of Juvenile Justice.[14]
[14] TB6, 161.
In his letter to the Minister he said that his foster family were “a good family, but being overly strict”.[15] In his evidence he said:[16]
Counsel: Okay and what were your experiences there ---?
BXTW: Again, at first like, I found this foster family sort of nice people, good people, they went to church every Sunday, so like, I thought it would be something a little different, something I’d enjoy. Like, after I started to get to know them well, things started getting stricter, I found myself getting physical abuse, like hits, I was being bullied by their – one of the older sons and I never told anybody about it. When I turned 14, I ended up jigging school and because I didn’t return to school, I was afraid to go back home and because I didn’t go back home, I had no idea where to go, so that was the first time I ran away from home and then – - -
[15] G11, 22.
[16] Transcript, 17 October 2019, 37.
The juvenile justice system contains a reasonable record of his life from 14 to 17. Time does not allow a complete reconstruction of his living conditions during this period, but it appears to have been highly unstable. At various times the wayward teenager lived in abandoned buildings, elevators, refuges or with friends, “couch-surfing”.
As a sixteen year old, his foster parents had little or no control over him. In May 2011, when his foster mother was interviewed by Juvenile Justice, she said she had reported him missing and was relieved that he was found.
He spent the rest of that year in various refuges. From October to December 2011 he lived at a single youth refuge.[17] From January to May 2012 he resided at various youth refuges in various suburbs around Sydney. It was an itinerant life because these refuges are short stay options.
[17] TB6, 161.
On 14 May 2012, now aged 17, he relocated into independent living in Liverpool with a youth program, securing his own two bedroom apartment in Liverpool.[18] Unfortunately, this was short lived. He allowed other young persons to live there; there were complaints about drinking and cannabis use.
[18] TB6, 180.
During August 2012 the situation deteriorated. He was breached by Juvenile Justice on 28 August 2012 due to his court appearance and pleading guilty to new offences.[19] He lost the apartment after his court appearance on 18 August 2012; it was found that young people were residing at the flat without his knowledge, and he was discharged from a Community Services program on 6 September 2012 due to persistent drinking and drug use.
[19] TB6, 168-169.
He was briefly accommodated at a further youth refuge in early September 2012. On 10 September 2012 he failed to appear at Parramatta Children’s Court for sentence. On 14 September 2012 he was taken into custody for a new offence. He spent almost all of the next 14 months in custody, until 16 November 2013.
OFFENDING HISTORY
The applicant’s offending appears to have commenced in the summer of 2010, when he was fifteen. On 28 April 2011 he was taken into custody for various offences including assault and stealing. He was bailed on 4 May 2011 but taken into custody again on 16 May 2011.
On 30 May 2011, before the Parramatta Children’s Court, he was placed on a bond and ordered not to drink alcohol. On 12 July 2011 he was there again on various charges, including two much more serious robbery-in-company charges committed on 27 April 2011, when he was barely 16.[20] He and an accomplice accosted the unfortunate victim, dispossessing him of various personal items. Later the same night they accosted another victim, as he left the railway station, and demanded money and a mobile phone. They later broke into a car and stole an iPad. The court also dealt with other matters including an offence committed on 4 June 2011 when he broke into a home at 2.30 am, disturbing the occupants and stealing a number of items including an iPod and iPhone.[21] He received 18 months’ probation.
[20] G7, 45 (charges 571, 041)
[21] G7, 45.
On 18 May 2012 he was dealt with by the Bidura Children’s Court on charges of larceny and damage to property and received a caution.[22]
[22] G3, 27.
On 26 February 2012, not yet 17, he offended again by breaking a window and entering a home. He was still on probation. He ransacked the rooms, stealing various items including electronic equipment and clothing.[23] He was taken into custody but released on 16 March 2012.[24]
[23] G7, 46.
[24] TB6, 181.
He offended again in April and July. When he was arrested on 28 July 2012, he spat in the dock.[25] He offended again on 14 September 2012, and was taken into custody.
[25] G7, 46.
On 12 October 2012 he was sentenced to 12 months imprisonment for the housebreaking mentioned above, as well as various other charges.[26] In a closed court the learned judge said:
In terms of matters of aggravation and mitigation under s 21A of the Crimes (Sentencing and Procedure) Act I note the following: in relation to each of the offences in terms of matters of aggravation there is a record of previous convictions. Each was a part of a planned or organised criminal activity. The young person was on probation and subject to a good behaviour bond at the time. In relation to the charges in September of this year the young person was also on bail. In relation to the mitigating factors there has been a degree of remorse expressed to Juvenile Justice and, of course, by his plea of guilty and there has been a plea of guilty, and accepts his responsibility for the actions.[27]
[26] G7, 45.
[27] G7, 47.
He was eligible for parole on 11 January 2013. He was duly released and on 25 January 2013 he committed another offence, for which he was dealt with by the Parramatta Children’s Court on 17 April 2013.[28] It was another robbery in company. He and his co-accused accosted a person waiting at a bus shelter. It was 1.00 am and they were both intoxicated. They demanded cigarettes and money. There was violence. The victim sustained scratches, bruising and a suspected fracture of the eye socket, although when he came up for sentencing for this offence two years later, having breached his parole, the eye injury was not taken into account in sentencing because separate medical evidence was not filed. The judge did however accept that these were serious injuries.
[28] G6, 38.
He was then 18. The sentencing magistrate revoked the earlier parole and made an order for him to serve the balance of the previous sentence concurrently with the new control order, for a period of 14 months, with a release date on 16 November 2013. It was a merciful sentence, perhaps a last chance. The learned magistrate gave him the following advice:
What might make things a bit easier for you, in terms of getting parole and staying out of trouble, is dealing with your drug and alcohol problem. Now while you might like to gargle and chuff as much as you possibly can, it’s pretty clear to me and everybody else that when you do that you make some really, really serious decisions and people get really seriously hurt. And this fellow this particular day got really seriously hurt.
So you’re 18 now. If you don’t sort things out real soon you’re going to spend heaps of time in the big house. And I can assure you, the big house is no picnic. It’s a matter for you. Just go with the escorts please.[29]
[29] G6, 43-44.
He did not take this advice. On 16 February 2014, in the early hours, he and two male accomplices carried out a burglary on the Metro Hotel in Sydney, forcing entry via the fire escape doors. They left by the same means and walked to the intersection of George Street, where they handed bottles of liquor to passing pedestrians. It is not clear whether the passers-by were thus enriched by chance or whether they were participants in this enterprise. He was arrested on 24 February 2014. He appeared before the Downing District Court on 7 May 2015 for sentencing on a charge of aggravated burglary under s 112(2) of the Crimes Act1900 (NSW).[30] Some 25 bottles of alcohol were stolen, valued at $1,250. Unfortunately, the court’s sentencing comments are not contained within the G-documents, although they do include the Crown Facts on Sentence.[31] The National Police Certificate records that the court imposed a two year good behaviour bond for the burglary. The applicant was ordered to reside at a drug and alcohol rehabilitation centre, complete stage 3 of the program, and participate in a programme run by an organisation that supports children and young people. With respect, this might be described as a benign and constructive sentence, aimed firmly toward rehabilitation.
[30] Break and enter and commit serious indictable offence in company.
[31] Tender Bundle TB7, 254.

I digress to mention that this is when he met Simetra, his volunteer mentor in an organisation that supports children and young people. She took a special interest in him. In due course she wrote to her supervisor and asked whether she could provide greater assistance to him. She offered to provide him with accommodation to get him off the streets. This was agreed to and came to pass. Simetra provided a safe home environment. Importantly, she does not drink alcohol and she seems to have been a model parent. She says that the applicant did not drink while he was with her. He stayed with her for the latter part of 2015 and into 2016. This should have been the beginning of a new chapter, but sadly he was drawn back to the past.
In 2016 he expressed a strong desire to reconnect with his natural parents. It is not uncommon for those in the position of the applicant to seek to reconnect. Simetra felt she had no choice but to support his request, even though she had reservations. Sometime in 2016 he moved from her safe haven to be with his mother and father. He told the Tribunal that initially he was happy but things deteriorated rapidly. He says his parents blamed him for the breakdown of the family. He did not understand why. He says they were drinking heavily and alcohol was readily available. He started drinking again, and using drugs. He soon left, unreconciled. Unfortunately, at this fork in the road, he did not take the path less travelled. He could and should have returned to Simetra. He says he felt ashamed about his drinking and knew how much she would disapprove.
In September 2016 he committed another robbery in company. He attacked a man on his way to work in the small hours of the morning. The applicant and his co-accused were drunk at the time. The victim fought back. The victim was kicked and punched many times. By his own admission before the Tribunal, the applicant threw at least one punch. They got away with his cigarettes and lighter. On 30 September 2016 the accused was arrested and taken into custody.
On 13 December 2017 the District Court of New South Wales sentenced the 22 year old to three and a half years for robbery in company. The learned sentencing judge noted the applicant’s plea of guilty and his relative youth. Rehabilitation was to be given greater emphasis than denunciation and general deterrence. The learned judge observed, in relation to the impact upon the victim, that there was nothing particularly vulnerable about him, but “it would have been a very nasty and frightening incident for him to go through”.[32] It was a thoroughly adult sentence, to be served in the adult prison – the “big house” – as a previous sentencing judge had called it. The judge specified a non-parole period of two years. His sentence commenced on 30 September 2016 and will end on 29 March 2020.
[32] G4, 35.
FEDERAL INTERVENTION
As noted at the outset, on 31 January 2018, a delegate of the Minister, acting under s 501(3A) of the Act, cancelled the applicant’s visa. On or about 29 September 2018, when the non-parole period expired, the applicant was transferred from prison to immigration detention.
Section s 501(6) of the Act sets out various circumstances in which a person is taken to not pass the character test. Section 501(6)(a) provides that for the purposes of the section, a person does not pass the character test if the person has a substantial criminal record (as that term is defined by subsection (7)). Section 501(7) provides inter alia that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more; or been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more.
Section 501CA(4) confers a power on the Minister to revoke the mandatory cancellation following representations by the person but only if he is satisfied that the person passes the character test or there is another reason why the cancellation decision should be revoked.[33]
[33] Hopkins v Minister for Home Affairs [2019] FCA 1697, per Katzmann J.
As noted above, on 7 August 2019 the Minister’s delegate decided not to revoke the mandatory cancellation of the applicant’s visa.
Section 500(1)(ba) of the Act allows an application to be made to the Administrative Appeals Tribunal (“the Tribunal”) for review of a decision made under s 501CA(4).
On 13 August 2019 the applicant applied to the Tribunal. His representative at the time, Simetra, wrote on his behalf:
BXTW did not have a safe and happy childhood. BXTW was taken from his family and placed into the Foster system. BXTW was abused and neglected throughout his childhood. The outcome from his childhood caused BXTW to run away and live on the streets around the age of 14. Like most young people BXTW made mistakes. BXTW is deeply remorseful of his past actions when he was younger; BXTW is now 24 years old and deserves a chance to prove that he is mature and willing to be a positive member of the Community with myself and my Family.
The applicant wrote to the Minister when making representations in accordance with an invitation to do so under s 501CA(3)(b). The undated handwritten letter was tendered to the Tribunal and was also available in the G-documents.[34]
[34] Attachment G11, 72-74.
THE HEARING
The following items were received into evidence:
(a)The Respondent’s Statements of Facts, Issues and Contentions (SFIC);
(b)The Applicant’s SFIC;
(c)The G-documents;
(d)A Supplementary Tender Bundle;
(e)A statement by the applicant (Attachment G1) which was included in the G-Documents at G11, page 72, but reproduced by the Respondent at the hearing.
(f)Documents filed by the Applicant on 20 September 2019 and 11 October 2019 which include:
(i)A statement of the applicant;
(ii)A letter from Simetra;
(iii)A letter from Simetra’s daughter;
(iv)Documents extracted from material provided under summons (6 documents in total);
(v)Curriculum Vitae of Simetra;
(vi)Letter confirming receipt for a referral for a support program, and two referral forms for other support programs for the applicant;
(vii)Photos of the Applicant with Simetra’s grandchildren;
(viii)Expert Report of Ms Clair Baker, Forensic Psychologist.
Evidence was heard from the applicant, Simetra, and Ms Clair Baker, an experienced consultant forensic psychologist. Neither his natural parents nor his long term foster parents appeared.
The applicant gave evidence over a number of hours and was examined and cross examined. He was examined concerning his background, his offending record, his use of alcohol and drugs, and his hopes for the future. Regarding his offending in 2016 he said:
Applicant’s Solicitor: Can you explain to the tribunal about, I guess, the events leading up to that offence, firstly?
BXTW: I started drinking, because I’d met my real parents, not because I just wanted to drink. I think it was more like a celebration drink, but this was after I left Simetra’s place and I wanted to understand what it was to be in a family. But I guess, when I went to live with them, things just didn’t really go as I expected. I didn’t know how to be a son to them, as they didn’t know how to be parents to me.
The drinking became an every night thing, because they never gave up drinking and I asked them a lot of questions about what happened when I was younger, I still didn’t get nothing. What hurt me the most and why I left was because they started to blame me for a lot of things and I just had no idea why I was being blamed, but I thought just the reunion would be different, or at least be a welcoming but then, I just didn’t really think of them as parents. I just thought they’re just stuck in their depression. I guess they’re just blaming themselves for losing us, but I don’t know how to – - -
Applicant’s Solicitor: What kind of things were they blaming you for?---
BXTW: I don’t know, there’s just life sort of things, I guess. It’d just be, because you’re the eldest, you’ve got to be the elder brother. I don’t know where all my brothers and that went, but I have to be or take responsibility for them. I had no idea where they were, so I just told them how it is, like I can’t really be there if they’re not here.
Applicant’s Solicitor: Then what happened after you left your family home, or after you left your biological parents?
BXTW: I was ashamed to call Simetra, Mum, because like, the way I left was I didn’t communicate with her near that time.
SENIOR MEMBER: Where did you go? When you left your parents, where did you go?
BXTW: I was homeless. I was sleeping in the streets, or more like in an abandoned car. I drank every night and because the nights were getting cold. I couldn’t stand the cold, so I thought it’d be better if I just get locked up and start over again. But the way this – - -
SENIOR MEMBER: Sorry, you said you thought it’d be better if you got locked up. Is that what you said?
BXTW: Yes. It was the same as all my crimes, but some of them I never expected them to happen, as like this recent crime. I’m not a violent person, I don’t like to hit people, but as this states that I repeatedly punched him and kicked him, and I went guilty for it. I can’t change the things that’s happened. I did come to realise that in the moment that I had to pull myself up and knowing what I was going to get myself into, I pulled my colleague away and yes, like I regretted what I did straight away and if the victim was here, I would say sorry to him, but yes, just most of the facts in there I guess I went guilty for, was for a reason and it was hard to fight a case that you can’t win, but yes.[35]
[35] Transcript, 17 October 2019, p 43-44.
Simetra gave evidence about her meeting the applicant and how he became enmeshed in her life. She described her role as a volunteer mentor in a program run by Juvenile Justice, and how she had come to meet the applicant in that context. She impressed me as a sincere and caring person.
She said that the applicant was a real asset to her family, that he was friends with her daughter and was a godparent to her two grandchildren. More will be said about the grandchildren below.
She was, at times, emotional in giving evidence and expressed horror at his possible deportation. She did not think that he could cope and said the thought of it scared her.
The relationship between the applicant and Simetra defies easy categorisation. She refers to him as her son and he calls her mum.
It is obvious that she has invested enormously in the applicant over the past six years. She is aware of his personal history and of course his offending history.
Ms Baker stated to the Tribunal that she had graduate degrees in psychology, post-graduate degrees in forensic psychology and criminology, and that she had worked for the past nine years in a substantive role with the government law enforcement agencies or as a consultant. She said that she had worked on many immigration matters in both roles.
I found her evidence to be forthright, frank and very helpful in understanding the complexities of human motivations involved in this case.
A critical issue in this case is the extent to which the applicant’s presence in Australia constitutes a risk to the safety of the community. Ms Baker was asked about this. She was questioned in detail about an assessment tool (LSRI-R) she used to predict the likelihood of recidivism. Using that tool, she assessed the applicant’s level of risk and relative needs in the Medium/High Risk/Needs range. A score at this level is associated with a greater than 57% chance of recidivism within the first 12 months if his criminogenic factors are not addressed. There was a lengthy explanation of the assumptions underlying this assessment tool. She emphasised that there was a dynamic component to the assessment scale, and that if factors such as accommodation and substance abuse could be improved, then the risk of recidivism would reduce dramatically.
Ms Baker also gave evidence about the likelihood of further violent offending. She said she had used another standard tool designed to predict the likelihood of violent offending. Using this tool she was of the view that the risk of further violent offending was in the low to moderate range. She did not consider that the applicant was at a high risk of violent offending. She considered that his history did not reveal a history of violent offending.
Ms Baker was then asked about some of the positive factors. She said:
all through my assessment, both through interview and through all the other supporting documentation, there was a strong sense that a lot, or if not, all of his offences have been based around times when he has been living homelessly and when he has been with other kids, or peers, who are also living homelessly and he has been drinking alcohol. So, should he actually – I don’t think he has got any offending where he was living in a home or under a roof – and that is my understanding and if I am wrong, please correct me – so, my opinion and I do feel that there was quite a lot of different factors that came to me coming to that conclusion was, much of his offending was based around being part of something. It wasn’t because I really want that item, so I am going to go in there and steal. It was more, the guys are all going out to steal some stuff, so I better go with them. And should you actually take that isolation and that loneliness and that need to belong away as a factor, I believe, quite strongly, if he can learn to trust and he can learn to actually sit in that environment and make the most of that environment, that his likelihood of reoffending will be extremely low. Because I think, the motivation for his offending wasn’t personal gain, it was socialising, it was social gain. And this is a boy who has lived alone and had very little adult support for pretty much most of his life, if not all of it until now. So, that was where he got his peopleness from, his socialising, his sense of belonging to something. So, for my opinion and that particular viewpoint has come from my feeling that should he feel part of a family and should he feel like he has got a roof and a job and a home and he is finally somewhere he can trust, he won’t have any reason to commit a crime anymore. The whole need to commit crimes should, theoretically, by, you know, hopefully, reduce to next to nothing.
Exercising the discretion in s 501CA(4)
The Tribunal is bound by s 499(2A) to comply with any Directions made under the Act. The relevant Direction for present purposes is Direction 79 (“Direction 79” entitled Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA).[36]
[36] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
The Tribunal is required to consider the discretionary power under s 501CA(4) within the framework of Direction 79, which guides decision makers as to the considerations that must be taken into account and assessed in terms of weight.
The correct or preferable decision is one that takes into account all relevant considerations and excludes any irrelevant consideration. In reaching a conclusion as to the resolution of all the various factors, the process is neither formulaic nor mechanistic. The final result is not merely an aggregation of the various factors, but a synthesis thereof.[37]
[37] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225, at [3].
Paragraph 6.3 of Direction 79 sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia…;
2The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
3A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia;
4In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. …;
5Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. …;
6Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to, or remain permanently in Australia; and
7The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
Paragraph 7(1)(b), Direction 79, states that a decision maker must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[38]
[38] Direction 79, sub-paragraph 7(1)(b).
Paragraph 8(1), Direction 79, provides that decision-makers must take into account the primary and other considerations relevant to the individual case.
Paragraph 8 contains three important rules about weightings.
(a)First, both primary and other considerations may weigh in favour of, or against, revocation: 8(3).
(b)Secondly, primary considerations should generally be given greater weight than the other considerations: 8(4).
(c)Thirdly, one of more primary considerations may outweigh other primary considerations: 8(5).
Part C, Direction 79, identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa.
Within Part C, paragraph 13(1) provides that where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 13(2) of the Direction refers to three primary considerations that the Tribunal must take into account and provides detailed guidance as to how they are to be assessed. The three primary considerations are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 14 refers to five other considerations that must be taken into account where relevant. Paragraph 14 states that the list includes but is not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed
In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23] Colvin J emphasised that the other considerations are not secondary or subordinate. His Honour stated:
…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including nonrefoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply. [emphasis added]
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY: 13.1

Paragraph 13.1(1) provides that when considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Immediately following the statement of principle, the paragraph contains two important declarations:
(a)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.
(b)Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in criminal or immigration detention while their immigration status is resolved.
Paragraph 13.1(2) states that when considering protection to the Australian community, decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 13.1.1(1) states that in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision makers must have regard to certain factors. There are nine factors that must be considered in characterising the nature and seriousness of the applicant’s offending, as detailed below.
Four of the factors in 13.1.1(1) relate to whether an offence should be regarded as serious or very serious.
(a)Importantly, the Direction states that without limiting the range of offences that may be considered serious, crimes of a violent or sexual nature are very serious: (1)(a).
(b)Crimes of a violent nature against women or children are also regarded as very serious regardless of the sentence imposed: 1(b).
(c)Offences falling outside these categories but targeting vulnerable people such as the aged or the disabled are serious: (1)(c).
(d)Offences committed either in immigration detention or escaping therefrom are serious: 1(i).
The remaining five factors in 13.1.1(1) relate to: The sentence imposed: (1)(d); the frequency of offending: (1)(e); the cumulative effect of repeated offending: (1)(f); the degree of candour by the applicant when dealing with the department: (1)(g); and whether the offence took place after the offender had formal notice of the immigration consequences of further offending: (1)h).
The Direction requires that each of these factors must be considered by the decision-maker. Obviously some factors, having been duly considered, may be put to one side. For example, in the present case, no material has been put to the Tribunal to suggest that the applicant received formal notice of the immigration consequences of further offending: 1(h). This matter can therefore be put aside.
13.1(2)(a): The nature and seriousness of the applicant’s offending to date
The applicant’s offending history has been set out above in some detail. His record of juvenile offending commenced when he was 16 and continued almost without interruption until he received an adult sentence at the age of 22. It included a number of robberies and burglary.
The 2016 robbery in company offence, for which he was sentenced in 2017 as an adult, was carried out with some aggression and descended into an all-out brawl when the victim defended himself, as he was entitled to do. The sentencing judge records what happened according to the agreed statement of facts:
The victim continued to walk towards [street] and was followed by this offender and the co-accused with the co-accused demanding his mobile phone. The co-accused ran at the victim, the victim swung the tree branch at the co-accused hitting him on the arm. The impact caused the victim to drop the branch. This offender ran at the victim, and both the offender and the co-accused threw punches at the victim, striking him in the head and body. About ten punches landed. When the victim fell to the ground both men kicked him all over his body. This offender fell to the ground and the co-accused helped him up. The victim managed to get away but was pursued by both men and they demanded his wallet.[39]
[39] G4, 30.
The applicant gave evidence at the hearing before me to the effect that he punched the victim, but once only. He denied kicking him. In his letter to the Minister he said:
To be truthful I am not a person to hurt others. In saying this, I am not the type to hit people [but] for no good reason. In all honesty the charge Robbery in company that landed me in Detention Centre was the only charge I’ve hurt someone. I deeply regret what I’ve done which in a result I’ve come to rehabilitate myself and only want to do good from here on.[40]
[40] G11, 73.
I note that under 13.1.1(1)(c) crimes committed against vulnerable members of the community (such as the elderly and the disabled) are serious, and that in relation to the 2016 robbery committed as an adult the judge indicated that there was nothing particularly vulnerable about the victim, but that “it would have been a very nasty and frightening incident for him to go through”.[41]
[41] Sentencing Remarks, G4, 35.
The 2013 robbery in company, discussed at paragraph [37] above, was also carried out with some violence. On that occasion, the victim’s eye socket was fractured. The applicant was fortunate that this aspect was not relied upon by the prosecution, and indeed, the judge did indicate that his was the minor role. In his letter to the Minister, the applicant appeared to suggest that he had not been violent on that occasion, and that he had gone along with the statement of agreed facts because he felt he had no choice. He said:
I plead guilty to others Robberies in company that states that I hurt these victims. In actual fact I never did according to the statements of the victims. I had no choice but to plead guilty. I thought its victims words against mine and I know that there is no possible way for me to win these cases. I’m only stating this because I’m in a position so critical.[42]
[42] G11, 73.
In my view, the applicant’s offending record, considered as a whole, is properly regarded as serious. Robbery is a deeply intrusive offence, with enormous potential for both physical and psychological harm to the victim. It is hard to imagine that a robbery in company would not in objective terms be considered serious in nearly all cases. It is for this reason that under s 97(1) of the Crimes Act 1900 (NSW) it carries a maximum penalty of twenty years imprisonment. The sentencing judge viewed it as objectively “a little below the mid-range”.[43]
[43] Sentencing Remarks,G4, 33.
I have also considered whether the offence history should be regarded as very serious. Under Direction 79, crimes of a violent or sexual nature are very serious. Crimes of a violent nature against women or children are very serious regardless of the sentence imposed.
In this case there is nothing to suggest that any of the crimes were directed towards women or children. Nor were any of the offences of an inherently violent nature, although the most recent offence was carried out a degree of violence. The sentencing judge, in discussing the objective seriousness of the offence, said that there was
no planning and [it] was a spontaneous offence. There was a significant level of actual violence directed towards the victim. It would appear that the offender’s role was less than that of the co-accused; it is the co-accused who swings initially the tree branch at the victim. There does not appear as I say to be any planning; there was limited property taken. The injuries that the victim suffered were relatively minor and of course I need to bear in mind this is a robbery in company, and not an aggravated form of the offence. I assess the level of objective seriousness as a little below the mid-range.[44]
[44] Ibid.
In objective terms I consider that the offending falls short of being regarded as very serious for the purposes of Direction 79.
Other factors relevant to the nature of the offences (the other five factors)
(d) The sentence imposed
In terms of sentence the most serious offence is the robbery in company committed in 2016, for which he was sentenced to a term of three and a half years imprisonment, with a non-parole period of two years. In sentencing the applicant in 2017, the sentencing judge noted his long record of juvenile offending going back to 2012, and the 2013 control order for a prior robbery in company. He saw “guarded prospects of rehabilitation” and found “special circumstances” in the progress made towards rehabilitation, especially in view of the applicant’s difficult life. Reflecting upon his life as a whole, the judge thought there were special circumstances in the case, and good prospects of rehabilitation.
(e) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness
The applicant has committed multiple robberies in company, at least four for which he was charged. On the record, at least two of these robberies involved physical injury to the victim, although the precise extent of the applicant’s contribution to the violence is masked by the fact of joint participation. He has also been convicted for other crimes against property. He has broken into houses and cars, in the early hours of the morning. He has been offending since he was sixteen years old.
The final offence, for which he was sentenced to a significant term of imprisonment, was the most serious of the various offences he has committed. It is probably premature to see this as a trend towards greater violence, but it cannot be seen as a positive trend either.
(f) The cumulative effect of repeated offending
The offending in question occurred over a period of several years. Considered in its entirety it is a record of persistent disregard for the safety and rights of others. One might find some explanation and even mitigation in the tragic circumstances of the applicant’s upbringing. But those elements which tend to reduce his overall culpability cannot detract from the sustained and pervasive nature of the applicant’s wrongdoing. He speaks to the harm he suffered at the hands of others. He was neglected by his parents and claims to have been sexually abused in foster care. He was wronged but sadly chose to wrong others. And he did so for a period of time, with ever-increasing consequences for his community and for himself.
(g) Whether the non-citizen has provided false or misleading information to the department
There is no evidence of any such information being provided to the Department of Home Affairs.
(h) Whether the non-citizen has re-offended since being formally warned.
There is no evidence of any such re-offending.
(i) That certain crimes relating to immigration detention are serious (not relevant)
There is no evidence of any such crimes.
13.1.2(b): The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 13.1.2(1) states that in considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitation courses to be undertaken).
With regard to 13.1.2(1)(a) it can hardly be doubted that there are very significant risks to members of the community should the applicant engage in further acts of robbery in company or burglary. It only takes one punch to change a person’s life forever. Various jurisdictions within Australia have enacted laws designed to deter such violence where the consequences may be catastrophic.[45] His weakness for alcohol and drugs permits no minimising of this substantial risk.
[45] In 2014, NSW introduced an amendment to the Crimes Act 1900 (NSW). Section 25A provides for an offence of assault causing death. Self-induced intoxication is a circumstance of aggravation increasing the maximum penalty from 20 to 25 years.
With regard to 13.1.2(1)(b), it is reasonable to link the likelihood of reoffending to the applicant’s successful recovery from alcoholism and drug dependency. The evidence shows that the applicant has a problem with alcohol and drugs. When sober, he is not prone to offend; when inebriated, he is likely to do so. If he has no means of support and little prospects of employment he is more likely to steal for food and for other things that he can sell, or exchange. This was the effect of Ms Baker’s evidence, which accords with frank common sense. In any event, unless his substance addiction is addressed he is likely to continue offending. Some of his offending has involved robbery in company. This is an intrinsically dangerous offence. Victims may well fight back and violence can spiral out of control.
As noted above at [61], Ms Baker in her evidence referred to the risk assessment test she administered which suggested that there was a greater than 57% chance that he would re-offend within 12 months of release. This was on the assumption that the criminogenic factors were not addressed. I note the applicant’s statements before me that he has turned a corner and will resist the temptation to drink or take drugs. It would however be naïve to discount the possibility that the applicant might slide back into habits of old. Should the community be exposed to that risk?
The applicant has been alcohol free for three years, but he has been imprisoned or in immigration detention. He says that he wishes to give up drink, but his resolve is untested in the community. It is noteworthy that after completing the drug and alcohol rehabilitation program in 2015,[46] he slipped backwards in 2016 after the failed attempt to re-establish a healthy relationship with his parents. His drunkenness was undoubtedly a factor in the robbery in company offence committed in September 2016.
[46] TB7, 258.
Moreover, he has not been entirely drug free in custody. An incident is recorded on 25 May 2018 when he joined with others in taking a non-prescription drug Buprenorphine to celebrate the impending release of a fellow detainee.[47] There is mention in that note of a previous lapse. He was punished quite severely in that he was denied privileges for 42 days, and thus was unable to communicate with Simetra during that time.[48]
[47] See TB3, 81.
[48] TB3, 81.
The sentencing judge in 2017, in referring to “guarded prospects”, appeared to be cautiously optimistic with regard to the prospects of rehabilitation. And indeed, the applicant has completed a number of courses in prison, including a course in the Curang Life Challenge program; Hygiene Operations; the EQUIPS Aggression Program; the EQUIPS Foundation Program; the EQUIPS Addiction Program.
The prospect of further offending is inextricably linked to the offender’s substance abuse. If he can reduce his drinking then the probability of future offending will decrease. The fact that Simetra, a non-drinker, has offered him a stable home could make all the difference. This could be a game changer, providing a chance for meaningful and lasting rehabilitation.
Conclusion: Protection of the Australian Community
The protection of the Australian community from criminal conduct is a primary consideration under paragraph 13.1, Direction 79. I have examined the nature and seriousness of the applicant’s conduct to date (13.1.1), as well as the risk to the Australian community should he engage in further offences or engage in other serious conduct (13.1.2). In forming my judgment on this primary consideration I have considered the several factors referred to in 13.1.1(1) in Direction 79. As noted above, I have viewed the applicant’s offending history as objectively serious. I have also noted various subjective factors including the age of the applicant; and the extent to which there are special circumstances in the case and realistic hopes of rehabilitation, as expressed by various judicial officers.
My conclusion on Primary Consideration A is that it weighs in favour of non-revocation of the cancellation decision. The weight to be assigned to this primary consideration in the particular circumstances of this case is that it is substantial, but not of itself such as to outweigh all other considerations.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA: 13.2
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the applicant’s visa.
The applicant does make a claim in respect of Primary Consideration B. As outlined above, Simetra has welcomed him into her family, which includes her daughter and daughter’s partner and two young minor children, who are both under the age of five. The applicant is godfather to each of these minor children.
Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be less than 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Moreover, paragraph 13.2(4) mandates that eight factors must be taken into account. They include: the nature and duration of the relationship; the extent to which the non-citizen is likely to play a positive parental role in the future; the impact of the non-citizen’s prior conduct; the likely effect that any separation from the non-citizen would have, taking into account the child’s ability to maintain contact in other ways; whether there are other persons who already fulfil a parental role; any known views of the child; evidence of abuse or neglect by the non-citizen; and evidence that the child has experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The nature and duration of the relationship
The children are still very young and the relationship is therefore very new. It has yet to mature. The applicant and Simetra gave evidence as to how meaningful this relationship is to both parties. Simetra’s daughter (the children’s mother) provided a letter in support of that contention in March 2019. She also speaks in very positive terms about him and says that “he is wonderful with my kids, I know one day he will be a beautiful father to his own children”.[49] She provided a further letter to the Tribunal in September 2019 providing further evidence about the applicant’s relationship with the children.
[49] G17, 90.
On the basis of the evidence it is accepted that this is an important relationship for the older male child, and of course for the applicant. Of necessity, given the circumstances of the applicant’s custody, there have been limited opportunities to explore the depths of the relationship.
There is no doubt that these are meaningful relationships, especially for the applicant and Simetra, and she is apparently of the view that his presence in her family is in the best interests of her grandchildren. Simetra is clearly convinced that this is the case and speaks warmly of his positive traits, including his gentleness, sense of humour and so on. The Tribunal did not have the benefit of oral evidence from the children’s mother, but her letters of support speak eloquently to the positive aspects of that relationship.
The extent to which the non-citizen is likely to play a positive parental role in the future

The likelihood that the applicant will play a positive parental role in the future is very difficult to assess. No one can safely predict that a person with such a track record will not fall again. The applicant, when sober, may well be a very positive influence in the life of these two children. But the applicant is at the very least a person with past alcohol and substance addiction issues. He has been “dry” for three years, but his resilience has not been tested in the community. His own downfall has been precipitated by drink and drug use. The children would be directly exposed to risk should he start to drink and use drugs again. It is of course a wicked dilemma in that his best chance of remaining sober is as a member of Simetra’s family. This is a classic Catch 22.
The extent to which the applicant is likely to play a positive parental role is directly related to whether the applicant is able to remain drug and alcohol free. There is a real risk that the trauma suffered by the applicant as an adolescent will simply not allow him to develop as a role model and safe friend for the children in the long run.
Simetra and her daughter have no doubt thought deeply about this issue, but my dispassionate judgment is that his presence as a member of their family within the immediate future exposes the children to a degree of risk, purely as a result of his track record of drinking and substance abuse. At this point in time I cannot safely predict that he is likely to play a positive parental role in the future.
The impact of the non-citizen’s prior conduct
There is no evidence that the applicant has ever acted badly towards the children, and indeed, the evidence of both Simetra and her daughter points strongly in the other direction.
The likely effect that any separation from the non-citizen would have, taking into account the child’s ability to maintain contact in other ways
With regard to the younger of the two children, she is an infant and will not suffer if the relationship comes to an end.
With respect to the older boy, the evidence suggests that this is an important relationship for the child. However, the child is very young and he is unlikely to suffer any lasting damage should the relationship be cut short by the applicant’s removal from Australia.
Whether there are other persons who already fulfil a parental role
The children have a mother and a grandmother. Evidence was not received as to the relationship status of the mother but there was a reference to a partner. It is not known whether this partner is related to the children.
Any known views of the child
The children are too young to express a view on this topic.
Evidence of abuse or neglect by the non-citizen
There is no such evidence before the Tribunal.
Evidence that the child has experienced any physical or emotional trauma arising from the non-citizen’s conduct
There is no such evidence before the Tribunal.
Conclusion: The best interests of minor children in Australia
Paragraph 13.2(1) requires decision-makers to make a determination as to whether revocation is in the best interests of the child (or children).
The solicitor for the applicant contended that this factor weighs heavily in favour of revocation. Interestingly, the solicitor for the Respondent considered that it weighed slightly in favour of revocation. The difficulty with assigning any weight at all in favour of revocation by reference to the children is that it is in their best interests if and only if the applicant can control his drinking and drug use.
I am satisfied that the older child will be affected by a decision not to revoke the cancellation decision. However, I cannot be satisfied that revocation is in the best interests of either child. Primary consideration B is therefore a neutral factor. It weighs neither in favour, nor against, revocation.
PRIMARY CONSIDERATION C – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY: 13.3
Paragraph 13.3(1) is bookended by two important principles: the categorical declaration that the Australian community expects non-citizens to obey Australian laws while in Australia; and the assertion that non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Paragraph 13.3(1) concludes in stentorian manner with the declaration that Decision makers should have due regard to the Government’s views in this respect.
Paragraph 13.3(1) identifies circumstances where it may be appropriate to not revoke the mandatory visa cancellation of a non-citizen, namely:
(a)where the non-citizen has breached the trust of the Australian community;
(b)where there is an unacceptable risk that the non- citizen will breach this trust;
(c)where the non-citizen has been convicted of offences in Australia or elsewhere.
Paragraph 13.3(1) falls short of asserting that it is appropriate to not revoke a mandatory visa cancellation in all cases. This would remove all discretion in the decision-maker and would be inconsistent with the discretionary nature of the power contained within s 501CA(4) of the Act. One is therefore mindful that it may be appropriate to not revoke a mandatory visa cancellation where the non-citizen has been convicted of offences in Australia or elsewhere. The word “may” is permissive not mandatory.
In FYBR v Minister for Home Affairs [2019] FCAFC 185, a majority of the Federal Court (Flick J dissenting) held that “Expectations of the Australian Community” in Clause 11.3 (which deals with the discretion to refuse to grant a visa application) should be interpreted not as an empirical matter subject to proof but as a “deeming expression” as to the expectations of the Australian community, irrespective of the individual’s personal circumstances. Charlesworth J stated, at [67]:
To the extent that cl 11.3 contains a statement of the expectations of the Australian community, the clause is “deeming”… It is not for the decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a “primary consideration”. …. For my part, I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.
Her Honour added, at [73]:
[I]t must be emphasised that cl 11.3 does not purport to preclude the decision-maker from reaching his or her own view as to whether the non-citizen should or should not be granted a visa, as the decision-maker must necessarily do. The question that arises on this appeal is not whether the decision-maker is precluded from doing so, but whether the decision-maker’s own assessment of the appropriate outcome is relevant to the task of identifying the content of the expectations of the Australian community under cl 11.3 of the Direction. The clause implicitly recognises that the decision-maker’s assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be.
For present purposes this merely confirms that the Tribunal may well form a judgment in favour of revocation of a mandatory cancellation decision which is at odds with the expectations of the Australian community, provided of course that any such decision is arrived at by reflection upon all of the considerations, primary and other considerations, that bear on the decision, as mapped by Direction 79.
Stewart J offered a slightly different analysis, at [100] et seq. His Honour said:
[100] To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:
·     non-citizens will obey Australian laws when in Australia;
·     it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere;
·     in a particular case, the refusal of a visa may be appropriate simply because the nature of the character concerns or offences is such that they should not be granted a visa.
[101] Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.” This limited expression of “community expectations” by the Government is, one would expect, quite uncontroversial which is an attractive feature given the heterogeneity of views in this area.
[102] It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be. That is why the decision-maker must assess what is “appropriate” in the particular circumstances. Nevertheless, an adverse character assessment is necessarily against a visa applicant, to some degree or other; no one will be awarded a visa because they are of bad character.
[103] The community expectations, as I construe cl 11.3(1), speak normatively; they are to be applied in every case but they are not expressed in relation to any particular case. This means that it would be wrong for the decision-maker to ask themselves a question along the lines of “what would the community expect in this case?” It is also incorrect to construe the community expectation as expressing or requiring, in any particular case, either the grant or the refusal of the visa. In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely, but in neither case and in all the area in-between the community expectation will not express or require one or the other. That is a matter for the decision-maker.
[104] omitted
[105] The specific circumstances of the visa applicant are necessarily front and centre of every decision. That is made clear in cl 6.1(2) of Direction 65 which requires the decision-maker to consider whether to exercise the discretion to refuse or cancel the visa “given the specific circumstances of the case”.[50] That requires an evaluative assessment. Direction 65 also identifies “principles” that “reflect community values and standards” (cl 6.2(1)). Those principles include that in the case of the commission of a “serious crime” a non-citizen “should generally expect” to be denied a visa (cl 6.3(3)). That principle is not expressed in absolute terms, as conveyed by the word “generally”. It is a question of weight, not prescription as to outcome. Also, the consequence of criminal or other serious conduct by a non-citizen may be different depending on how long and from what age they have been in Australia (cl 6.3(5) to (7)). Further, the best interests of minor children in Australia who may be affected by the decision is also a primary consideration (cl 11.2, and referred to in cl 6.3(7)). In any particular case, that primary consideration may outweigh, or contribute with other considerations to outweigh, the consideration of the expectations of the Australian community (cl 8(3)).
[106] The appellant relied heavily on cl 8(3) as dictating that each consideration, and hence also the expectations of the Australian community, can weigh in favour of or against the refusal of the visa. That approach gives that clause too much work to do in the light of the textual and contextual reasons to construe cl 11.3(1) as necessarily weighing, to some degree, against the visa applicant. Textually, cl 8(3) is capable of making perfect sense as saying that primary and other considerations may weigh in favour of or against refusal of a visa, rather than each and every primary and other consideration may weigh both ways. (Emphasis added)
[50] See also clause 13.1, applicable to revocation decisions.
I therefore accept that Primary Consideration C must weigh in favour of non-revocation. It is for me as decision-maker to determine how decisively it weighs in the particular circumstances of this case. In general, the more serious the breach, the more it weighs against the applicant, and it may even be decisive.
In assessing the weight to be assigned to this primary consideration, I have due regard to the views of the executive government relating to the removal of non-citizen offenders from this country. The views of the government are encapsulated within Direction 79. Applied to this particular case, the SFIC tendered by the solicitor for the Respondent notes that the Australian community has no tolerance for violent offences, or repeat offending in breach of court imposed bonds, and that this primary consideration weighs heavily against revocation.[51]
[51] Respondent’s Statement of Facts, Issues and Contentions: paragraph [41].
In the present case, I have already said that the offending falls below very serious. The totality of offending cannot be described as “particularly egregious” so as to override all other considerations. Although a degree of violence accompanied some of the robberies, the violence was not of an extreme kind, and there is a question as to how much violence was actually inflicted by the applicant, as opposed to his co-accused. Moreover, none of the charges required proof of actual bodily harm.
However, I have assessed the applicant’s criminal record as objectively serious. Can it be treated as less than serious by reason of subjective factors – the applicant’s history of desertion, abuse, and neglect? I think the answer must be no. I do not think that the original hurt, the removal from his natural parents for what appears to be good cause, can provide an excuse for his drinking, drug use and offending behaviour. Although he bears no blame whatsoever for the circumstances of his removal, he has contributed to his misfortunes as an adolescent and young adult. He needs to own that. Many people have tried to improve his circumstances. His foster parents tried, and they were also responsible for the care of other foster children. They have been conspicuous by their absence in these proceedings.
It may be that his departure from the foster home at around 14 could be explained in terms of abuse, sexual or otherwise, experienced in that home. He has indeed made such a claim. This may provide some explanation for his behaviour, but it does not change the seriousness of the offending.
I therefore assess the nature and seriousness of the criminal offending as serious.
My conclusion on Primary Consideration C is that it weighs in favour of non-revocation, but the nature of his offending history is not such as to outweigh any other consideration arising under Direction 79. I am required by clause 13.1(1) to determine whether to revoke the cancellation decision in the specific circumstances of this case, and this cannot be finally determined until all considerations are considered.
SUMMARY OF PRIMARY CONSIDERATIONS
My conclusions on the primary considerations can be summarised as follows. Two of the primary considerations weigh in favour of non-revocation. In combination they are substantial, but they do not, in the specific circumstances of this case, weigh heavily in favour of non-revocation. The third primary consideration, relating to the best interest of minor children, is a neutral factor and weighs neither for nor against revocation.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will consider each in turn.
(a) International non-refoulement obligations
There are no relevant concerns in this respect. There is no evidence that the applicant is likely to face persecution as a result of his ethnic or religious background. No argument was put to the Tribunal in support of any such contention.
(b) Strength, nature and duration of ties
The applicant was under the care of the NSW Department of Family and Community Services (as it was then known) from six to 17. He has lived continuously in Western Sydney or in institutions throughout New South Wales for the last 19 years. He has been shaped by the urban environment of Sydney. He knows no other place. That by itself might be thought to constitute a substantial tie to Australia.
His ties extend beyond these basic facts. He has what appears to be an enduring relationship with Simetra and her family. It has developed over the past six years. There can be no doubt as to the depth of this relationship. Simetra has supported him through these proceedings. She has paid the costs associated with his psychological assessment. She has spoken on his behalf. She has provided him with accommodation and financial support and offers to assist him find work. In one of her letters she wrote to her supervisor asking whether the applicant could live with her and whether it would assist if she offered to support him financially so that there would be no need to call on Centrelink. She said she could help him find employment so that he could become a hardworking Australian and live the life that he so deserves.[52] In her letter dated 30 March 2019 she said:[53]
[52] G15, 88.
[53] G14, 84.
Over the years BXTW become a big part of my Family, although he is not my blood, I consider him to be my son. BXTW is an amazing, respectful young man. I believe that BXTW deserves a chance to live a happy and productive life. I’am (sic) aware of BXTW’s history and I’m also aware of BXTW’s past mistakes and regrets.
BXTW has recently turned 24 years old. Throughout his short life BXTW has spent time in the
·Foster system
·Juvenile Justice Detention Centre
·Corrective services
·Refuges
·Rehabilitation Centre
·Villawood Detention Centre.
BXTW has never lived with a Family that loves and adores him and who can offer stability, structure and a sense of belonging.
I have visited BXTW whilst he was in Custody and now that he is in Villawood, it breaks my heart the thought of him possibly leaving Australia to go to a Country that he doesn’t know or have anyone there to help, guide and support him. There is no-one there to guide him to find accommodation, employment so that he could make a life for himself. He would have no money to feed and clothe himself. He would be homeless and completely on his own.
For me the possibility of losing this young man from my life breaks my heart, the thought of him being on his own in a Country that he does not know scares me.
If BXTW was to be given the opportunity to stay in Australia, he would live with myself and be surrounded by people that love, care and support him in all of his achievements. BXTW would finally have and feel a sense of belonging within my Family and my friends. I know that BXTW has learnt from his past mistakes. All that BXTW has ever wanted is a life we’re (sic) he can gain employment, contribute positively to the Community and eventually have a Family of his own.
If BXTW were to be given the opportunity to stay in Australia, I have contacted Support Services that could assist and enable BXTW to not only begin to heal from his past but to also set BXTW up for achieving a brighter future that he so deserves.
There is little doubt that the applicant’s relationship with this family constitutes a present substantial tie. The relationship extends beyond Simetra to other members of her family; to her daughter and her daughter’s two children, considered above. As noted above, only time will tell whether he proves to be a good role model for the children, but Simetra and the children’s mother are both very positive and optimistic.

The solicitor for the Respondent did not think that one could fairly describe this as a family relationship, but it seems to me that the relationship has such qualities. It is certainly family-like and Simetra undoubtedly thinks of him as a son, and he thinks of her as a mother. Their mutual distress at the thought of his removal was obvious during the hearing.
Ms Baker spoke to the strength of trust that had developed between the applicant and Simetra. She said:
Sometimes, what I have experienced in my work is that sometimes you pass a test to some of these young people who have had a terrible life and who are used to people hurting them or letting them down. And I think any person who has worked in that environment will understand that. You pass a test for them and once you pass that test, they trust you. But sometimes the test is quite significant. And I suppose putting that into play here, I would imagine that for her to stick by him despite his failures, despite him running back on the street, reoffending, back in jail, letting her down theoretically, you know, for him, her ability to stay with him has allowed him that ability that, I trust her. Well, I am letting myself trust someone again. I mean, that is my opinion.
The team leader for the mentoring program, mentioned above at paragraph [39], which is run by an organisation that supports children and young people, provided a reference dated 27 March 2019.[54] She states that she worked very closely with the applicant for 5 years in a professional capacity while he was in custody. She says that his behaviour in custody was very compliant and he was respectful to staff and other residents. She said:
[The applicant] has no family to depend upon or to role model positive behaviours beside Simetra who has at many times been their (sic) for him like a family member. I have observed on many occasions his caring and heartfelt relationship with Simetra and her family as his own.
[54] G16, 89; See also reference dated 6 May 2015: TB7, 257.
Another reference was provided by a Pastor from the Hillsong Church, who writes:
BXTW came into the Immigration Detention Centre in 29 September 2018. Since then, he has been attending our regular weekly Sunday and Thursday morning service run by Hillsong Church which is still providing this religious spiritual service to clients at Villawood Detention Centre till this day. BXTW really wants to make positive choices and make good contribution and also be a good role model to his peers. It shows us of his regular attendance in church and open and positive conversation with our team but within BXTW felt – it has to begin of going deeper in his relationship with God.
We would like to present this letter of our support in relation to his application and hope for a positive outcome for him to remain in Australia.[55]
[55] G18, 92.
But although these references and the relationships that stand behind them are important, it is the relationship with Simetra that stands out and marks this as a special case. Simetra has demonstrated a degree of commitment going well beyond the ordinary, and provides the applicant with a realistic possibility of rehabilitation and normalcy. This creates a special circumstance in this case.
The relationship between the applicant and Simetra is highly significant, especially given his age and background, and the extent of departmental care and institutionalisation. I cannot dismiss it as whimsical or the product of idealism and wishful thinking. Simetra is a person with extensive experience as a volunteer social worker. Ms Baker commented extensively and favourably on this relationship. She is also an experienced professional. They have been around the system long enough to know that many fall by the wayside. They have assessed the risks and consider that he can be saved from a life of despair. They were compelling witnesses.
I conclude that the strength, nature and duration of the applicant’s ties to Australia are very substantial, and weigh heavily in favour of revocation.
(c) Impact on Australian business interests
This consideration is not relevant.
(d) Impact on victims
The Respondent has not called any evidence relating to any impact that the applicant’s continued presence in Australia would have on his victim(s). Without such evidence, it is not appropriate for me to speculate as to the impact his continued presence in Australia would have on any victim(s). Accordingly, I cannot find that this factor attracts any weight either in favour of, or against, the revocation of the applicant’s visa.
(e) Extent of impediments if removed
Paragraph 14.5(1) of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their country, in establishing themselves and maintaining basic living standards. Relevant factors to be taken into account include:
(a)The non-citizen’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to that non-citizen in that country.
The solicitor for the Respondent informed the Tribunal that should the applicant be removed from Australia, he may choose to go either to the Cook Islands or to New Zealand - and the department will honour his preference. When asked to indicate a preference the applicant chose Australia. When asked to choose between New Zealand and the Cook Islands, he chose the Cook Islands. When asked why he had done so, he said that he had heard that it was beautiful, a description that might not unreasonably be applied to New Zealand as a whole.
In light of all the material before the Tribunal, I consider that deportation poses a serious risk to the applicant’s personal safety, mental health, and rehabilitation. The specific history outlined in some detail above renders him especially vulnerable to social isolation, alienation and reoffending. He is especially vulnerable in light of his history of foster care, homelessness, institutionalisation, alcoholism and substance dependency.
Deportation under these circumstances is especially dangerous in the absence of robust systems designed to address his emotional, addictive and financial needs. I have a specific concern about the measures that would be required during an initial settling in period to ensure that the applicant does not self-harm, become homeless or resume his former life of destitution and crime.
The solicitor for the Respondent was unable to provide any information regarding the measures, if any, that might be relevant to assessing the extent of any impediments he will face in establishing himself and maintaining basic living standards, taking into account his age and health and his specific medical needs.
Deportation will almost certainly impede his efforts at rehabilitation. He has made substantial progress towards rehabilitation and social integration. He has been “dry” for three years, with a good chance of staying that way if he is allowed to remain in Australia and has the support of Simetra and her family.
Ms Baker gave evidence about the psychological impact of removal. She said it would be profound. She feared for his safety. She said:
I don’t want to overstate, but I question how, if he is totally rejected again and loses that, what he has got now, will he ever be able to form pro-social relationships with anybody. Because it is the ultimate rejection really and also in the same sense of the first time in his life he has got something that loves him and that is welcoming him and I feel that it would – the impact on him, psychologically, would be significant and I think – I just – it is almost the creation of somebody who never again trusts people. That he would lose that capacity. And you talk about trauma, that would be where you would start to see some of that trauma come in because he would become very hard and unreachable. And I think it would, you know, as a coping mechanism. So, as a way of managing, I would think. But that is my opinion.
As to the likelihood of reoffending, she said:
I think it is almost a given, because, I mean, he is going to be an angry, hurt, broken individual and so – - -
In light of the material before the Tribunal, I find that that the extent of the impediments he will face if removed to either the Cook Islands or New Zealand weighs heavily in favour of revocation.
SUMMARY OF OTHER CONSIDERATIONS
The application of these other considerations can be summarised as follows:
·International non-refoulement obligations: not relevant.
·Strength nature and duration of ties: weighs heavily in favour of revocation.
·Impact on Australian business interests: not relevant.
·Impact on victims: not relevant.
·Extent of impediments if removed: weighs heavily in favour of revocation.
Is there Another Reason to Revoke the Cancellation of the applicant’s Visa?
Two of the primary considerations favour non-revocation, and two of the identified other considerations weigh heavily in favour of revocation.
If this were a mathematical exercise, the outcome would depend on the individual weighting assigned to each as well as the relative weightings of primary and other considerations. It is of course not a mathematical exercise, although paragraph 8(4) states without specificity that:
Primary considerations should generally be given greater weight than the other considerations.
Although an appropriate weight must be assigned to the various considerations, the weight cannot be precisely or mathematically quantified, and is at best amenable to generalised descriptors, such as ‘slight’ or ‘weighty’ or ‘substantial’. It is not simply a matter of giving each factor/consideration a score, and then toting them up and applying some differential weighting for primary as opposed to other considerations.
Moreover, estimations may differ as between reasonable decision-makers. I am heartened by the comment by Charlesworth J in FYBR v Minister for Home Affairs [2019] FCAFC 185, at [64]:
The relative weight to be ascribed to each consideration bearing on the exercise of the discretion is a question in respect of which reasonable minds may differ.
It is also salutary to reflect on the words of Allsop CJ in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225, made in a related context. The learned Chief Justice, with whom Markovic and Steward JJ agreed, said at [3]:
[C]ases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about...The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.
The comments of Colvin J in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 referred to above at [75] are also apposite. The learned judge said:
Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[56]
[56] [2018] FCA 594 at [23].
His Honour was speaking of Direction 65 and his comments apply equally to Direction 79. His formulation neatly sidesteps the temptation to develop some kind of weighting matrix for processing the respective considerations. The question is: can it be said that one or more of the other considerations, either alone or in combination, is such that they should be afforded the greatest weight in the circumstances of this case? Are the particular circumstances of the applicant outside the circumstances that generally apply?
Applying these principles to the facts of this case, there is no doubt that a decision to deport the applicant will have devastating consequences not only for the applicant but for Simetra as well. I am not satisfied that the safety of the applicant can be assured if he is deported to New Zealand, given his vulnerability to homelessness and alcoholism. Conversely, in western Sydney he has a reasonable prospect of recovery from alcoholism and homelessness, offering a real prospect of rehabilitation. Removal from Australia will end the practical support that Simetra and daughter offer.
In my respectful view, the strength, nature and duration of ties to Australia, and the extent of impediments he will face if removed to New Zealand are sufficiently pressing to be afforded the greatest weight in the special circumstances of this case. In this particular case these “other considerations” outweigh the primary considerations embodied in Direction 79, being outside the considerations that generally apply, to use the language of Colvin J.
CONCLUSION
The applicant does not pass the character test, having been sentenced to a term of imprisonment of 12 months or more. He has a substantial criminal record. However, there is another reason, or more precisely a combination of reasons, why the mandatory cancellation decision should be revoked, as explained above. A holistic view of the considerations in Direction 79 favours revocation of the mandatory cancellation decision.
The correct and preferable decision is that the mandatory cancellation of the applicant’s visa should be revoked, and that his visa should be restored to him.
Finally, I would like to acknowledge the solicitors for both parties for their professional and courteous manner over the two day hearing. I received considerable assistance from their submissions.

I certify that the preceding 178 (one hundred and seventy -eight) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

.............................[SGD]...........................................
Associate
Dated: 1 November 2019

Date(s) of hearing: 17 and 18 October 2019

Solicitors for the Applicant:
Mr J Strutt - Immigration Advice and Rights Centre

Solicitors for the Respondent:
Mr T Hillyard - Sparke Helmore

Date(s) of hearing:	17 and 18 October 2019
Solicitors for the Applicant:	Mr J Strutt - Immigration Advice and Rights Centre
Solicitors for the Respondent:	Mr T Hillyard - Sparke Helmore