BYMD and Minister for Immigration and Multicultural Affairs - [2024] ARTA 16

Applicant:BYMD
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2021/4437

Tribunal:Senior Member A. Nikolic
Place:Melbourne
Date:4 November 2024

Decision:The Tribunal affirms the decision under review.

..............[SGD]..........................................................
Senior Member A. Nikolic
Catchwords
MIGRATION – mandatory visa cancellation – citizen of Ethiopia – where Applicant granted Class BA (Subclass 200) Refugee visa – failure to pass good character test – substantial criminal record since 2005 including rape and other sexual and violent offending – formal warning from Department – Applicant committed further sexual and violent offences – mandatory visa cancellation – non-revocation decision – matter twice remitted by Federal Court of Australia – whether another reason to revoke the mandatory cancellation of Applicant’s visa – Ministerial Direction no. 110 applied – decision affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
Sentencing Act 1991 (Vic)
Sex Offenders Registration Act 2004 (Vic)
Cases
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294
BDQ19 v Minister for Home Affairs (2019) 167 ALD 38
BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199
BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94
Bowden v The Queen (2013) 44 VR 229
Brown v Minister for Immigration and Citizenship [2009] 112 ALD 67
Brown v Minister for Immigration and Citizenship [2010] 183 FCR 113
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 416
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
CTK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1211
CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101
DLZZ and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 3922
DOB18 v Minister for Home Affairs [2018] FCA 1523
DQM18 v Minister for Home Affairs (2020) 278 FCR 529
Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 056
Hughes v The Queen (2017) 263 CLR 338
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
James v Minister for Immigration and Border Protection [2017] FCA 410
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120
Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6
Maxwell v R (1996) 184 CLR 501
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 (2021) 285 FCR 540
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton (2023) 276 CLR 136
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Muller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 924
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs (2022) 276 CLR 80
NRFX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 21
NRFX v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 187
NZYQ v Minister for Immigration, Citizenship & Multicultural Affairs [2023] HCA 37
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCATrans 154
O’Keefe v Calwell (1949) 77 CLR 261
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219
QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394
QDWQ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 178
RGCZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2002) 295 FCR 365
Rukuwai v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 157
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) FCR 582
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Sundrampillai v Minister for Immigration, Local Government and Ethnic Affairs (1992) 29 ALD 479
TCXM v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 451
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
WKBF v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 465
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 463
YKSB v Minister for Home Affairs [2020] FCAFC 224
Secondary Materials
Department of Foreign Affairs and Trade (Cth), DFAT Country Information Report: Ethiopia (Report, 12 August 2020)
Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Direction No 75 – Refusal of Protection visas Relying on Section 36(1C) and Section 36(2C)(b)
Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth)
Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth)
Sentencing Advisory Council (Vic), ‘Imprisonment’ (Web Page, updated 7 May 2024) <
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (“CAT”)
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (“CROC”)
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (together “the Refugee Convention”)
International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171 (entered into force 23 March 1976) (“ICCPR”)
Statement of Reasons
INTRODUCTION

The Applicant has asked the Tribunal to review the Respondent’s decision not to revoke the mandatory cancellation of his Class BA (Subclass 200) Refugee visa.
The hearing was held in the Tribunal’s Melbourne Registry on 8 and 9 October 2024. The Applicant was represented by Ms Melinda Jackson of counsel, acting pro bono under a direct access brief. The Respondent was represented by Mr Ingmar Duldig, a solicitor from Clayton Utz.
For the following reasons the Tribunal affirms the reviewable decision
BACKGROUND
The Applicant is a 42-year-old citizen of Ethiopia and a Christian of the Oromo ethnic group.[1] He arrived in Australia in November 2000 at the age of 18.[2]
[1] Exhibit R1, 1357.
[2] Ibid 310.
The Applicant has an extensive criminal history since 2005.[3] His offending includes convictions for two counts of rape, sexual assault, multiple counts of indecent assault, recklessly causing injury to a former female partner, several counts of resisting police, criminal damage, carrying a prohibited weapon,[4] repeated breaches of conditional liberty,[5] and crimes involving dishonesty. He has also committed several driving offences, including by exceeding the prescribed alcohol limit, driving in a careless manner, driving while disqualified, and driving over the speed limit.[6]
[3] Ibid 73-5.
[4] Ibid 367.
[5] Ibid 337, 357.
[6] Ibid 420.
The Applicant was convicted for his most serious crimes in 2010, which included two counts of rape and five counts of indecent assault. He received a cumulative sentence of five years and seven months imprisonment, with a non-parole period of three years and eight months.[7] The Applicant sought leave to appeal his convictions[8] but this was dismissed by the Court of Appeal.[9]
[7] Ibid 74.
[8] Ibid 476.
[9] Ibid 412-14.
On 10 September 2012, the Applicant was served with a notice of intention to cancel his visa.[10] On 16 July 2013 he was advised that his visa would not be cancelled, but that a formal warning would instead be issued as follows:[11]
‘Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered’.
(Emphasis in original.)
[10] Ibid 220-5.
[11] Ibid 226-8.
The Applicant reoffended after being released from prison for the rape and indecent assault offences. In 2020 he was convicted for sexual assault and two counts of contravening bail. He received a sentence of 12 months imprisonment and was placed on the Sex Offenders Register for life.[12] The latter requires him to comply with certain reporting obligations under the Sex Offenders Registration Act 2004 (Vic).
[12] Ibid 483, 487.
In early 2020 the Applicant was diagnosed with schizoaffective disorder.[13] In the same year he also tested positive for the Human Immunodeficiency Virus (“HIV”).[14]
[13] Ibid 751.
[14] Ibid 1072.
Procedural history
This application has an extensive procedural history and is being heard by the Tribunal for a third time. On 10 September 2020, while the Applicant was serving a sentence of imprisonment for the sexual assault and breach of bail offences, the Respondent cancelled his visa under the mandatory cancellation provision at s 501(3A) of the Migration Act 1958 (Cth) (“the Act”).[15] The Applicant was invited to make representations to have the cancellation decision revoked and did so within the permissible period and in the manner specified.
[15] Ibid 211; Migration Act 1958 (Cth) (‘The Act’).
On 29 June 2021, a delegate of the Minister decided not to revoke the mandatory cancellation of his visa (“non-revocation decision”).[16] He has since been assisted with his application by Refugee Legal.[17]
[16] Exhibit R1, 48.
[17] Ibid 318, 320-3.
On 5 July 2021, the Applicant asked the Tribunal to review the non-revocation decision.[18]
[18] Ibid 41-6.
On 29 September 2021, the Tribunal, differently constituted, affirmed the reviewable decision (“first hearing”).[19]
[19] BYMD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021]
AATA 3476.
The Applicant appealed and, on 15 August 2022, Justice S.C. Derrington upheld three grounds of appeal and remitted the matter to the Tribunal for redetermination according to law.[20] Her Honour found that the Tribunal member denied the Applicant procedural fairness by not giving him an opportunity to explain why his child’s best interests were served by revocation, notwithstanding that the child and his mother were living in New Zealand. Her Honour also found there was a denial of procedural fairness by the Applicant not being advised that the precise location of his resettlement in Ethiopia was in issue, in the context of the Tribunal member finding there was only a ‘remote chance’ of him being a victim of societal violence and could safely return to Addis Ababa.[21]
[20] Exhibit R1, 656-79.
[21] Ibid 676.
On 22 June 2023 his application was re-heard, and the reviewable decision was again affirmed (“second hearing”).[22]
(a)On 24 July 2023, the Applicant appealed. On 12 March 2024, Justice Rofe quashed the second decision by consent of the parties and remitted the matter for redetermination according to law.[23] That decision gives rise to the current proceeding.
[22] BYMD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023]
AATA 1774.
[23] Ibid 1339-41.
LEGISLATIVE FRAMEWORK
Section 13 of the Administrative Review Tribunal Act 2024 (Cth) (“the ART Act”) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act and a person does not pass it if they have a ‘substantial criminal record’ as defined by s 501(7). This includes if they have been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).
Under s 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and to invite the affected person to make representations about revocation. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act confers a discretionary power upon the Minister to revoke the original decision, if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.
Section 49 of the ART Act provides that the procedure of the Tribunal is within the discretion of the Tribunal having regard for the circumstances of the proceeding. Section 52 of the ART Act states that the Tribunal ‘is not bound by the rules of evidence but may inform itself on any matter in such manner as it considers appropriate’.
ISSUE
The Applicant does not pass the character test because of his 2010 and 2020 convictions for sexual offences. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision. The remaining issue under s 501CA(4)(b)(ii) of the Act is whether there is ‘another reason’ for revocation.[24] The Tribunal ‘stand[s] in the shoes of the original decision-maker’ but considers the available evidence ‘at the time of the Tribunal’s decision’.[25]
[24] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187, 191-2 [3]-[5] (Katzmann J), 198 [24] (Derrington J), 219 [103] (O’Bryan J).
[25] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 (‘Nathanson’); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40], 315 [100], 324-5 [134].
The Full Court of the Federal Court in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[26] reflected with approval upon the reasoning in Viane[27] and, at [27], identified the following principles as relevant to the statutory task conferred by s 501CA(4):
(1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
(2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
(3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
(4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
(5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
(6) If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.
[26] (2021) 287 FCR 294 (‘Bettencourt’).
[27] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, 545 [64] (Colvin J).
More recently, in Plaintiff M1/2021, a majority of the High Court relevantly said:[28]
22. Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
23. …The question remains how the representations are to be considered.
24. Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations…the weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
25. …What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
…
(Citations omitted).
[28] Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, [22]-[25] (Kiefel CJ, Keane, Gordon, and Steward JJ) (‘Plaintiff M1/2021’).
DIRECTION 110
In making its decision, the Tribunal must comply with a ministerial direction under s 499(1) of the Act, known as “Ministerial Direction 110” (“the Direction”).[29] The Direction contains ‘mandatory and aspirational considerations’ guiding the exercise of statutory power.[30]
[29] The Act (n 15) s 499(2A); CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 416, 417-8 [4] (Rares, O’Callaghan and Jackson JJ); Nathanson (n 28), 540 [4]; Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (commenced 21 June 2024) (‘The Direction’).
[30] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, [45].

Clause 5.1 of the Direction sets out several objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens’. Clause 5.1(2) states in relation to decisions under s 501(1) of the Act:
…Where the discretion to refuse to grant…a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
The following principles at cl 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the noncitizen poses a measureable risk of causing physical harm to the Australian community.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision-maker must have regard to clauses 8 and 9, where relevant to the decision.
Clause 8 of the Direction identifies the following primary considerations:
(1) Protection of the Australian community from criminal or other serious conduct;
(2) Whether the conduct engaged in constituted family violence;
(3) The strength, nature, and duration of ties to Australia;
(4) The best interests of minor children in Australia; and
(5) Expectations of the Australian community.
Clause 9(1) of the Direction sets out a non-exhaustive list of other considerations:
(a)Legal consequences of the decision;
(b)Extent of impediments if removed; and
(c)Impact on Australian business interests.
Clause 7(1) provides that when applying primary and other considerations, appropriate weight should be given to ‘information and evidence from independent and authoritative sources’.
Clause 7(2) states that the primary consideration Protection of the Australian community is ‘generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations’.
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations’.
The individual and cumulative weighing process is a matter for individual decision-makers.[31]
EVIDENCE
[31] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138, [28], [37]‑[38] (Colvin, Stewart and Jackson JJ); Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) FCR 582, 587 [23] (Mortimer J, as her Honour then was); Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, 551 [23], 522 [28] (Colvin J); Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 473, [57].
Documentary evidence
The following documents were tendered into evidence:
(a)Remittal bundle numbering 1411 pages;[32]
(b)Additional remittal bundle numbering 144 pages;[33]
(c)Six-page statement of the Applicant dated 5 July 2024;[34]
(d)2023 Country Reports on Human Rights Practices: Ethiopia, from the United States Department of State;[35]
(e)Human Rights World Report 2024: Events of 2023, in which the section on Ethiopia is at pp 215-223;[36] and
(f)DFAT Country Information Report Ethiopia dated 12 August 2020.[37]
[32] Exhibit R1.
[33] Exhibit R2.
[34] Exhibit A1.
[35] Exhibit A2.
[36] Exhibit A3.
[37] Exhibit A4.
Applicant’s evidence
At the commencement of his evidence the Applicant adopted a statement dated 5 July 2024 as true and correct. He referred to unnamed ‘inmates’ who assisted him with this. The Applicant’s oral testimony is now summarised.
Life prior to arrival in Australia
The Applicant said he travelled to Addis Ababa, the capital of Ethiopia, at the age of 15 and lived there for 18 months or two years while ‘waiting for approval to go to Kenya’. After living in a refugee camp for ‘one year and eight months’, he claimed to have been provided with a travel document issued by the ‘Kenyan Embassy’ to refugees. He recalled that his sister and brother-in-law sponsored his migration to Australia.
The Applicant was asked about different histories about his early life taken a decade apart by forensic psychiatrists Dr Ryan and Dr McInerney:

DR RYAN’S 2010 REPORT DR MCINERNEY’S 2020 REPORT

‘[The Applicant] was born in the north of Ethiopia…He said that his family was relatively wealthy compared to the general population and as such attracted a degree of jealousy and discrimination and at times violent attention from others. He described his upbringing as a "tough life".

[The Applicant] was unaware of any family history of major mental illness, His mother died at the age of 70 several months ago following a stroke. He said his father is aged approximately 80 years and previously suffered from tuberculosis. He reports his father now has cancer. His father worked making coffee. [The Applicant] reported good relationship with his parents. He was a twin and is one of 10 siblings. [The Applicant] was unaware of any problems with his birth…or early development…he described himself as competent academically and socially and that he enjoyed sporting activities, He denied any conduct problems in childhood or adolescence. He completed a Year 11 education but decided to leave Ethiopia at the age of 17 to avoid conscription in the army’.

[The Applicant] initially moved to Addis Ababa the capital city of Ethiopia where he spent a year avoiding the authorities before…spending 18 months in Nairobi, Kenya. He said that he was frequently robbed by corrupt police whilst in Kenya and immigrated to Australia at the age of 18. He is now a permanent resident in Australia and had a cousin here prior to his arrival.’ [38]

‘[The Applicant] reported that he was…from a large family, and that his earliest childhood memories were of poverty and struggling.

He said that his father was a farmer and had married twice and had been physically aggressive to his mother and to him. He said that he had had little input from his father as a child, which he felt had impacted negatively on his development.

He said that his mother may have had mental illness, describing how she once "disappeared into the bush", leading to a large-scale search. He said that both parents had been heavy drinkers.

He told me that his mother and father had died of long-term illnesses in 2006 and 2007 respectively, and that his sister had died of suspected suicide in 2000.

He said that by the time he left Ethiopia for Australia at the age of 17 years, he had completed the approximate equivalent of primary school education.

[The Applicant] said that a relative had assisted him to move to Australia to have a better life. He reported that the remainder of his family stayed in Ethiopia, and he had not seen them since...’.[39]

[38] Exhibit R1, 428.
[39] Ibid 1399.

The Applicant said that aspects of the history taken by Dr Ryan were ‘totally wrong’ and claimed he must have been ‘out of his mind’ when making them.
Life in Australia
After arriving in Australia, the Applicant said he studied English for about six months and later worked as a forklift driver for about two-and-a-half years and a machine operator for about two years. He also claimed to have undertaken carpentry and hospitality courses at TAFE. There is no corroborating evidence for his work claims or past vocational training.
Offending
The Applicant agreed that the criminal history in evidence accurately summarises his past offending.[40] He initially claimed in both documentary[41] and oral evidence that he could not recall the particulars of his crimes because he was ‘under the influence of drugs and alcohol’ and his memory is ‘not that good’ because of prolonged substance abuse. When asked by Mr Duldig during cross-examination whether he remembers any of his offending, the Applicant responded: ‘No I don’t’. He claimed that his memory problems commenced in 2003 and he now has a poor recollection of events from even a year ago. During his oral testimony, however, the Applicant was able to recall that his life circumstances in 2007 were contextualised by ‘family problems, stress, anxiety, and depression’. He was also able to recall the precise length of his sentences for sex offending in 2010 and 2020, when he was diagnosed with HIV and schizoaffective disorder, some of the brand names of the medications he takes, frequency of consultations with mental health experts, and other specific details of his past. When challenged that his claimed inability to recall crimes did not appear to extend to other issues, the Applicant conceded: ‘I do remember my offending a little bit – I’m just too ashamed to talk about it’. This is a different submission to that originally made in his documentary and oral evidence.
[40] Ibid 73-5.
[41] Exhibit A1, 2 [12].
The Applicant said when first hospitalised for mental health issues in 2003 he ‘lost [his] mind’ due to heavy drinking because he was ‘going through family issues, loneliness, and the breakup of [his] first relationship’. He recalled that he started drinking alcohol ‘every day’ to forget his problems and would routinely consume a bottle of Jim Beam Bourbon by himself. He recalled going to ‘rehab, started taking medication and got better’, but ‘things went bad’ again and he resumed drinking.
The Applicant contextualised his abuse of substances as mixing with ‘wrong people [he] met on the street’ who had ‘no job, no life – their lives depended on alcohol and drugs’. He claimed to have last used alcohol and drugs prior to imprisonment in 2019. Prior to a line of questioning about his past drug use, the Applicant was reminded of his privilege against self-incrimination. This is because there are no drug convictions recorded in his criminal history, but the evidence he and his representatives tendered refers to polysubstance drug abuse and persistent addiction. The Applicant chose to answer these questions. He agreed that he previously used cannabis, ecstasy, cocaine, crystal methamphetamine (“ice”), and heroin to varying degrees. He claims, for example, to have started using cannabis in ‘around 2005’ but stopped doing so ‘around 2007’ because it caused him to become ‘paranoid and hallucinate’. He also recalled being given cocaine and speed ‘by people in clubs and pubs’. When asked if this made him lose control, he responded: ‘most likely’. When asked if persistent drug use may have caused his schizoaffective disorder, the Applicant responded: ‘Most likely – I’m not sure’. When asked by Ms Jackson if he used any illicit drugs in custodial settings, he responded: ‘No’. When asked by Ms Jackson if others use drugs in detention, he responded: ‘I don’t know’. The Applicant recalled experiencing drug and alcohol urges in ‘past years’, but not now. He agrees that he still requires drug and alcohol rehabilitation.
Previous formal immigration warning
The Applicant could not recall receiving a formal warning from the Respondent in 2013 about the consequences of further offending.[42] He did not deny receiving the warning, for which there is a signed acknowledgement in evidence,[43] just that he had no memory of it.
[42] Ibid 226.
[43] Ibid 228.
Remorse and rehabilitation
The Applicant recalled feeling shame, disgust, and sorrow for his past conduct and the effect on his victims. He contextualised this in part by claiming that previous mental health medications did not work. He claimed to have completed a six-month sex offender’s program in 2010 while imprisoned, which he recalled was in a group setting and consisted of weekly sessions. When asked by Ms Jackson what kind of things were talked about, the Applicant responded: ‘behaviour, respect women…it was a long time ago’.
The Applicant said after being diagnosed and treated for schizoaffective disorder in 2020 while in prison, he experienced a turning point that caused him to feel ‘normal…awake … and aware of [him]self and [his] surroundings’. He has subsequently seen general practitioners, psychologists, and psychiatrists in custodial settings since 2019, but ‘less often in detention due to high demand’. The Applicant said during his time in immigration detention he has engaged in activities such as art and English classes, Coffee Club, and attending the gym. He has not undertaken offence-specific rehabilitation courses in detention because there are none but talks to health practitioners about his mental and physical health. The Applicant said he is prescribed daily medication and takes it each evening at a ‘counter’ run by nurses.
The Applicant said if released from detention and confronted with stressors that triggered past relapses, he would see a doctor for a referral to a psychologist or psychiatrist and do exercise. If feeling unwell he would also ‘reach out to the Emergency Department’.
Recidivism risk
The Applicant said he is ‘not the type of person’ reflected by his offending and wasn’t himself when committing crimes. He said it is ‘only on drugs and alcohol [that] these sorts of things happen’. He claimed to have learned his lesson and does not intend putting himself in the same position. Mr Duldig asked the Applicant about past compliance with prescribed medications. The Applicant was ‘not sure’ if there were periods in the community when he failed to take these. When asked if there were times in prison when he was non-compliant with medications, he responded: ‘I can’t recall’. He was certain, however, that he has been consistently compliant with medications in immigration detention. Notwithstanding his 2020 diagnosis with schizoaffective disorder and the efficacious treatment he credits with turning his life around, the Applicant agreed that his mental health has ‘deteriorated’ at times. When asked by Mr Duldig about a significant deterioration during the last Tribunal hearing in 2023, the Applicant claimed he could not recall this.
The Applicant accepted that factors like compliance with medications, availability of stable accommodation, money to support himself, and prosocial community supports impacted upon his risk of relapse and recidivism. When asked what supports he requires if released, the Applicant said he would need ‘psychological support, emotional - financially I can work’. He claimed to have spoken to ‘a few mates who drive an Uber and work in a restaurant’ who can assist him with work. When asked if there was any reason why these friends had not provided statements, the Applicant responded: ‘No’.
Relationship with Ms AA and their child
The Applicant said if released he will reunite with Ms AA and their 14-year-old child in Australia. He recalled that after being released from prison in 2013, he and Ms AA had a good life because both were ‘working, earning’ and engaging in family activities. He recalled arguments, however, and that they would ‘break up and get back together.’ In or about 2018 he again began mixing with the ‘wrong people’ and used ice. This led to further arguments with Ms AA and financial pressures. He said they ‘stopped paying rent’ because only Ms AA worked. The Applicant said he ‘started gambling’, which Ms AA ‘wasn’t happy about’.
The Applicant recalled that Ms AA returned to New Zealand in about 2019 to look after her sick mother, during which their son remained with him in Australia for part of that year. He said their son has autism and it was hard for the Applicant to care for him on his own because the child’s ‘condition was out of control’. This made the Applicant’s ‘mental health worse’. When asked about the basis of the autism claim the Applicant responded: ‘I don’t have any proof’. When asked what support his son receives for autism in New Zealand, the Applicant responded: ‘I’m not sure’. When asked why he did not know this if he spoke regularly with Ms AA, the Applicant responded: ‘I didn’t ask her’. When asked which school his son attends in New Zealand, the Applicant claimed Ms AA told him, but he forgot. When asked whether his son attends a standard school or one specialising in autism needs, the Applicant responded: ‘I’m not sure’.
The Applicant said Ms AA returned to Australia in 2019 and insisted she would take their son back to New Zealand. He recalled this caused heated arguments and he committed two family violence offences against her while drug and alcohol affected. When referred by Mr Duldig to a police report dated 21 December 2017 about one of these incidents, the Applicant claimed to have no memory of it. Yet when asked if his son was present during the incident, the Applicant claimed the child was in the house but ‘asleep’. He believes the last Family Violence Final Intervention Order taken out to protect Ms AA and their son has expired and there is no legal impediment to them being together. This is corroborated by other evidence before the Tribunal.[44]
[44] Ibid 238-9.
The Applicant last physically saw Ms AA and their son in 2019. Since then, he claims to have weekly videocalls with them to maintain a ‘good father-son bond’. He said his son does not know the Applicant is in detention and they talk about things like his son’s favourite English soccer team. The Applicant said he has not talked to Ms AA about the family violence he committed against her but claims to have told her about his 2020 HIV diagnosis. He claims that Ms AA recently told him she is single and wants to return to Australia and reunite with him. The Applicant stated: ‘She’s single, I’m single, so we’re still together’. When asked why there is no current statement from Ms AA in this proceeding the Applicant said she is busy working, and he did not ask her to provide one. When asked why there is no statement from his son, the Applicant said he is too young. When pressed that his son is now 14 and capable of expressing a view, the Applicant said he had not asked him to do so. When asked how the Applicant would be affected if Ms AA chose not to return to Australia, the Applicant responded: ‘As long as I see my son…but she said she would definitely come back’. When again questioned about this issue by Ms Jackson in re-examination, he stated: ‘I’d feel OK if she’s trying to move on. As long as I get to see my son and spend quality time with him…’.
Intentions if allowed to remain in Australia

The Applicant said he intends to ‘reach out’ to family members in Australia for accommodation and other support while he ‘gets on [his] feet’. When asked why he has not already reached out to them, the Applicant said he prefers to wait until release. He has not spoken with his sister and other family members since being reimprisoned in 2019. He recalled they were initially supportive after his release from prison in 2013 and believed he was a ‘changed man’. But he reoffended and contact ceased. When asked by Ms Jackson if any of his relatives have minor children, the Applicant named one person who he claims has children that are now seven and nine years old respectively.
The Applicant said he intends remaining abstinent from alcohol, drugs, and gambling. He will also stay away from the ‘wrong people’ and find a job. He believes that renewing his car and forklift licences will assist his job prospects. When asked by Mr Duldig whether a criminal record may impede renewal of his licences, the Applicant said he is unsure. He is also unsure if his mental health condition and the medications he takes might impede this but is yet to make enquiries. During re-examination, the Applicant said if he could not renew his forklift licence he intends working as a labourer, which is a job he has done before.
When asked about any prosocial friends in Australia, the Applicant said they are ‘all married and have kids’ and he does not have contact with them.
Continuing detention and Protection Visa application
The Applicant said remaining in immigration detention would be ‘stressful – very bad’. He applied for a Protection Visa in November 2023 and recalled undertaking an interview via teleconference with immigration officials about two months later. He has since received two further requests for information from Departmental authorities and responded to these with the assistance of his lawyers.
The Applicant said he fears returning to Ethiopia because it would be a ‘death sentence’. He believes authorities will ‘capture him’ and ‘send [him] to the war’ or torture him. He also fears discrimination because of his bisexuality, mental health issues, and HIV status. He claims to only speak ‘a little bit’ of Oromo and has no one in Ethiopia to rely upon. The Applicant said he would not be able to see his son, Ms AA, or other relatives if removed. He claims that he could not work because of ‘mental and physical health’, nor afford medications. He does not know if he could receive free medicines in Ethiopia and was unable to recall a discussion with a doctor in 2021 about the possibility of accessing antiviral medicines ‘through public hospitals when/if he does get deported’.[45]
[45] Ibid 1135.
When asked to elaborate on his fears of return, the Applicant responded inter alia that there are ‘two different tribes – the Oromos are in power at the moment and the Amhara want to take over…it’s very difficult to explain’. He claimed that he ran away ‘from a tribe called OLF’ when leaving Ethiopia, because they were ‘going to take [him] to war’ which would have put his ‘life in danger’. He said the current leader of Ethiopia ‘is Oromo but is a Muslim who is against Christian people’.
TRIBUNAL CONSIDERATION OF THE EVIDENCE
Applicant’s evidence
Some aspects of the Applicant’s evidence are inconsistent, uncorroborated and, at times, came across as less than forthright. It is accepted that his persistent polydrug abuse may have contributed to periods of psychosis and possibly memory issues, although there is little expert corroboration of this. Dr Ryan referred in 2010 to the Applicant denying ‘any lapses in…memory’ relating to the rapes / other sexual offending in 2007. The Applicant instead reported that he considered himself an ‘innocent person’ who ‘spoke of injustice’ regarding his conviction.[46] He also claimed to have suffered a ‘blackout’ during his sexual crimes, which he attributed to the possibility that housemates spiked his drink. In 2020, Dr McInerney noted the Applicant’s claims that he ‘may have experienced memory problems as a result of long-term drug use but said…he had never had brain imaging or a neuropsychological assessment’.[47] In an induction medical screening in detention, the Applicant was noted to have no perceptual disturbance, exhibited ‘good insight’, and was assessed as ‘oriented’.[48] There is a dearth of medical evidence to corroborate his claims about impaired memory, which came across as somewhat selective during. The Tribunal is concerned about the changing nature of the Applicant’s oral testimony in this regard. He initially claimed to have no memory at all about his crimes but later conceded he has some recall but prefers not to discuss it. Given the extent to which he was able to recall non-offending-related facts and issues positive to his application, the Tribunal is unpersuaded about the Applicant’s memory claims. It is considered the evidence he gave about his offending is less than forthright and he is not an entirely reliable historian.
[46] Ibid 429.
[47] Ibid 1401 [4.2], 1404 [9.3]
[48] Ibid 1221, 1235.
Other inconsistencies in the Applicant’s evidence include:
(a)The history taken by two forensic psychiatrists a decade apart is starkly different in several respects. The Applicant claimed during oral testimony that aspects of Dr Ryan’s report, who the Court described as a ‘respected forensic psychiatrist’[49] were ‘totally wrong’ and the Applicant must have been ‘out of his mind’ when making some claims. The Court relied on Dr Ryan’s report,[50] which was commissioned by the Applicant’s then lawyers. Reference is also made to Dr Ryan speaking with the Applicant’s general practitioner and mental health staff at the prison. Dr Ryan noted in his report ‘there was no indication that other serious psychiatric symptoms were present at the time of the offending’.[51] Dr Ryan noted the Applicant was polite, attentive, and displayed appropriate demeanour, levels of attention, and concentration during interview.[52] Communication from the Applicant was assessed as ‘ordered, relevant, and appropriate’, with ‘no evidence of cognitive difficulties’ from a ‘man of normal intelligence’.[53] The Applicant was assessed at the time of this interview to have ‘clinically significant depressive symptoms in the context of his incarceration and impending sentence’ but was not psychotic nor ‘identified for ongoing review’ by mental health staff.[54] There is no persuasive basis to explain why aspects of the history taken by Dr Ryan may have been ‘totally wrong’, including that the Applicant may have been ‘out of his mind’, which conflicts with Dr Ryan’s assessment. A forensic psychiatrist with Dr Ryan’s experience would have noted such a presentation and conditioned his remarks accordingly.
[49] Ibid 81 [20].
[50] Ibid [20]-[21].
[51] Ibid 83 [23].
[52] Ibid 430.
[53] Ibid.
[54] Ibid 431.
(b)It is noteworthy that in his 2010 report, Dr Ryan made no reference to the Applicant living in a Kenyan refugee camp or experiencing torture and trauma. In her 2020 report, Dr McInerney took a different history about the Applicant’s life prior to arrival in Australia, but also made no reference to him experiencing torture and trauma or living in a Kenyan refugee camp. In response to a question regarding torture and trauma when inducted into detention some four years ago, the Applicant is recorded as responding ‘No’ to a question about whether he had ‘any terrible experiences that continue to affect [him]’ and if he needed to talk to someone about this.[55] In May 2021 IHMS staff ticked the ‘No’ box in another report asking if the Applicant is a ‘known survivor of torture and/or trauma’.[56] The Applicant’s claims about experiencing torture and trauma post-date Dr McInerney’s 2020 report and have been advanced in the context of a protection visa application that is currently under consideration. In the Applicant’s July 2024 statement, for example, he attributes his substance abuse as resulting from ‘trauma’ during his ‘time in conflicts and wars’ in Ethiopia.[57] The evidence relating to the Applicant’s background in Ethiopia and/or Kenya is inconsistent.
(c)The Applicant’s claims about the current strength and nature of his ties to family members in Australia, and Ms AA and their child in New Zealand, are largely uncorroborated. He stated in handwritten claims dated 18 September 2020 that his family members in Australia ‘love and support him’ and would be ‘greatly affected’ by a non-revocation decision.[58] The Applicant’s oral testimony, however, is that he has been estranged from these family members since imprisonment in 2019. In an induction form during the Applicant’s transition to immigration detention, the response ‘No’ is checked to the question: ‘Have you got people here (in detention) or at home that you can talk to about problems or concerns’. It is not possible to reconcile these discrepancies without evidence from these relatives. This includes whether a future relationship with the Applicant is welcomed, or what support could be provided to assist him.
(d)There is no recent evidence from Ms AA to corroborate the Applicant’s reunion claim in Australia. The Tribunal was unpersuaded by his claim that she is too busy with work to provide a current indication of her intentions. The Tribunal’s concerns are not alleviated by the changing nature of the Applicant’s documentary claims about his relationship with Ms AA as follows:
(i)The Applicant claimed in his statement dated 5 July 2024 that he talks with Ms AA ‘a little bit, but not that much’,[59] is not sure whether she has moved on with another partner, which is ‘not any of his business’, but they remain on ‘good terms’ and he wishes her ‘nothing but the best with her life.[60]
(ii)In an August 2020 Personal Circumstances Form the Applicant described himself as ‘Single’ and made no reference to Ms AA.[61] Both the Applicant and Refugee Legal stated in submissions dated December 2020 that his relationship with Ms AA ‘broke down’.[62] He was then under an intervention order that ‘prevents him from seeing [her]’,[63] the Applicant had not seen her since,[64] and the ‘collapse’ of their relationship precipitated further drug use.[65] The Applicant’s submissions were then framed as: ‘Whether or not [Ms AA] and I get back together, we need to support each other as…parents’.[66]
(iii)Ms AA’s statement dated 14 May 2021 is now quite dated.[67] She referred to being a New Zealand citizen who ‘separated’ from the Applicant after a ‘heated’ and ‘especially bad’ argument in or about September 2019 when the Applicant ‘withheld’ their child’s passport.[68] Ms AA stated that after the expiration of a Family Violence Final Protection Order, communication between them resumed by phone. She expressed an intention to complete her studies in New Zealand, settle family matters relating to her mother’s medical condition, and resume her life in Melbourne. Ms AA expressed uncertainty, however, about how a relationship with the Applicant may develop but offered support and referred to their parental roles rather than an intention to reunite. Ms AA has not returned to Australia in the last five years and there is no recent indication of her intentions.
(e)The Applicant told a consultant forensic psychiatrist in August 2020 that he believes his HIV ‘occurred as a result of intravenous drug use’.[69] In a statement dated 23 November 2023, however, he claims to be bisexual and to have contracted the virus from a man he had sexual intercourse with in 2020.[70] The latter claims are relatively recent and inconsistent with his past claim to Dr McInerney.
PRIMARY CONSIDERATIONS
[55] Ibid 1219.
[56] Ibid 827.
[57] Exhibit A1, 3 [16].
[58] Exhibit R1, 127, 138-9.
[59] Exhibit A1, 4 [26].
[60] Ibid.
[61] Exhibit R1, 134.
[62] Ibid 155, 157, 203 [19].
[63] Ibid 160.
[64] Ibid 203-4 [19].
[65] Ibid 204 [28].
[66] Ibid 207 [47].
[67] Ibid 251-3.
[68] Ibid.
[69] Ibid 1401 [4.1]
[70] Ibid 1389 [38].
Protection of the Australian community from criminal or other serious conduct
Clause 8.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should keep in mind that safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Under cl 8.1.1 of the Direction, the following factors are to be considered in determining the nature and seriousness of the non-citizen’s criminal and other conduct to date:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.violent and/or sexual crimes;
ii.crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i.causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii.any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv.where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
(e)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
(i)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Tribunal consideration: The nature and seriousness of the conduct
The Applicant accepts that a criminal history check dated 28 August 2020 is an accurate summary of his past offending.[71] He concedes that his 2010 sexual crimes are his most serious and refers to ‘several factors in mitigation’ regarding his April 2020 sexual assault conviction. Ms Jackson emphasised that the sentences awarded for the Applicant’s sexual offences were below the available maximums and not at the highest level of seriousness.
[71] Ibid 73-5.
The Applicant concedes ‘there are two offences constituting family violence in 2018 and 2019, which are also serious within the meaning of the Direction’.[72] In relation to his other offending, it is submitted that:
‘The other offences on the Applicant’s criminal record are infrequent and relatively less serious; some of which no conviction was recorded, others involved fines or community based orders. There is no pattern of serious offending and no trend of increasing seriousness given the most serious offending was around 17 years ago, in November 2007. As the sentencing judge indicated in 2010, “it is of significance … that your offending starts in 2003 at around about the same time as your admission to the Alfred Hospital”. The Applicant’s mental health provides important context to this offending history’.[73]
(Footnotes removed).
[72] Applicant’s Statement of Facts, Issues and Contentions dated 21 August 2024, 4-6 [15]-[18] (‘ASFIC’).
[73] Ibid [18].
Notwithstanding the Court’s reference to the Applicant’s ‘offending’ starting in 2003, it is impermissible for the Tribunal to consider offences for which a finding of guilt has been made but a conviction not recorded.[74] The Applicant’s court appearances in 2003 fall into this category and are not considered further.
[74] WKBF v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 465, [7] (Hespe J), citing the reasons of the High Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton (2023) 276 CLR 136 and Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6.
The Court’s reasons for sentence in 2010,[75] after a contested jury trial, are summarised as follows:
(a)The jury accepted the complainant’s version of events. The Court noted that the Applicant’s denial of his offending required the victim to be cross-examined in a way suggestive of ‘falsehood’. The Court observed: ‘There is no evidence of remorse whatsoever…The lack of remorse also gives rise to a finding that you have very little, if any, victim empathy’.[76] His Honour summarised the Applicant’s conduct against the victim as follows:
‘This obviously occurred over some period of time. You were obviously persistent and as the Crown said, "It can be broken into two episodes…Those two episodes being the circumstances surrounding each of the rapes. She consistently said, "No" and it was clear to you that she was saying "No". Indeed, in your version to police you said that she did say, "No". You persisted. The view that you just did this because you felt that you were entitled to is almost irresistible. You told the police, "I can get any ladies I want".’[77]
(b)The victim tendered a statement referring to stress, sleepless nights, nightmares, feeling withdrawn, nervousness, irritability, and a ‘personality change’ because of the Applicant’s crimes.[78] She also referred to a loss of confidence in social settings, trust in others, feelings of helplessness and lacking self-worth, depression, overwhelming feelings of anxiety, physical sickness, shame, guilt, anger, fear, panic, and confusion. The victim needed regular counselling with a trained psychologist to cope with these issues.
(c)The Court accepted that the consequences for the young female victim are serious and a ‘significant custodial sentence [for the Applicant was] inevitable’ because his serious offending required ‘condign punishment’.[79] The sentencing judge noted that a significant portion of the sentence was devoted to ensuring the Applicant ‘never [does] this to a woman again’.[80]
(d)A report from forensic psychiatrist Dr Mark Ryan was considered and the Court accepted that the Applicant’s emotional and psychological state at the time of his offending may have made it harder for him to make moral judgments and understand the consequences of his actions, which ‘may…have had the effect of not alerting [him] to the full significance of the distress [he was] causing [the] victim’.[81]
(e)Pursuant to s 6 of the Sentencing Act 1991 (Vic), the Applicant was sentenced as a serious sex offender.
[75] Exhibit R1, 76-86.
[76] Ibid 467 [4].
[77] Ibid 81 [18].
[78] Ibid 78 [6].
[79] Ibid 81 [19], 85 [28].
[80] Ibid 84 [26].
[81] Ibid 84 [25].

There is a significant gap between the Applicant’s 2010 convictions and his next conviction in August 2018 for Unlawful assault, although a significant portion of this period was spent imprisoned for the rape / indecent assault offences or under an arrest warrant / awaiting sentence following his family violence against Ms AA in December 2017. Further convictions then followed in 2019-20 for sexual assault, possessing a controlled weapon without excuse, recklessly causing injury, failing to answer bail, and two counts of contravening a conduct condition of bail. Sentencing remarks from August 2020 are summarised as follows:[82]
(a)The Applicant pleaded guilty to sexual assault, which consisted of ‘grabbing a young woman on the vagina over her clothing’,[83] and two charges of contravening bail conditions, one of which required him not to be within a certain distance of the victim’s accommodation.
(b)The Court observed that using drugs and alcohol, was ‘really bad for [the Applicant’s] mental health’,[84] and encouraged him ‘to get the treatment and stay away from drugs … alcohol and gambling…’.[85] The Court noted that the Applicant did not have stable accommodation and was ‘couch surfing’, which accentuated his risk of ‘lapsing into drug or alcohol use’.[86]
(c)Upon placing the Applicant on the Sex Offenders Register for life, the presiding Magistrate stated:
‘I am placing you on the Sex Offenders Register because unfortunately my concern is that if you – when you leave prison, if you start using drugs or alcohol again, then I think it’s highly likely that you will commit a similar offence. I know it is your best intention not to start using drugs or alcohol again but if you do that or if you don’t take your medications so that you are not controlled, then I think it is almost inevitable and although I respect your intentions to do the right thing, I also have to protect the community and I think in these circumstances, I must make that order’.[87]
(d)The Court further observed that the Applicant needed ‘fairly significant structure’ and to be ‘closely monitored’ upon release,[88] such that a ‘slightly longer’ period of parole was preferred over a Community Corrections Order because of the monitoring and drug testing conditions available under the former.[89]
[82] Ibid 87-115.
[83] Ibid 107 [5].
[84] Ibid 107 [21].
[85] Ibid 108 [2]-[3].
[86] Ibid [25]-[26].
[87] Ibid 114-5.
[88] Ibid 108.
[89] Ibid 110 [2].
In addition to the Applicant’s criminal history, other conduct may also be apposite to the Tribunal’s consideration, despite not leading to charges or convictions. This includes his persistent abuse of illicit drugs, which the Applicant was asked about during the hearing after being reminded of his privilege against self-incrimination. His evidence about this was earlier summarised.
Tribunal findings: The nature and seriousness of the conduct
The Applicant has committed multiple violent crimes. He was first convicted in 2005 for stealing a motor vehicle and in 2006 for crimes including robbery and resisting police. The latter is offending against government representatives in the performance of their duty.[90] There is no evidence, however, of this category of offending being repeated since 2006. The Applicant was also convicted of recklessly causing injury in 2009 and two counts of rape and five counts of indecent assault in 2010.
[90] The Direction (n 29) cl 8.1.1(1)(b)(ii).
Notwithstanding a lengthy period before the Applicant’s next conviction in August 2018, he committed further violent offences against a romantic partner and then a sexual offence against a stranger. Such conduct is viewed very seriously by the Australian Government and the Australian community.[91]
[91] Ibid cls 8.1.1(1)(a)(i)-(iii).
Imprisonment is a sentence of last resort and the most severe sanction available to Australian courts.[92] The Applicant has been sentenced to increasingly severe punishments, including conditional liberty orders of up to 18 months, which he breached. The multiple sentences of imprisonment he received in 2010 did not dissuade him from committing further violent and sexual offences approximately a decade later. It is accepted the sentences since 2010 are well below the available maximums for crimes like rape, sexual assault, indecent assault, and recklessly cause injury. That said, any sentence of imprisonment is a serious punishment.
[92] See for example: Sentencing Advisory Council, ‘Imprisonment’ (Web Page, 7 May 2024) <
In terms of ‘other conduct’ within the meaning of cl 8.1.1(1) of the Direction, and notwithstanding the absence of drug offences in the Applicant’s criminal history, the evidence discloses the Applicant has possessed and used multiple illicit drugs such as ice, heroin, cocaine, ecstasy, cannabis, and benzodiazepines. The latter are ‘prescription sedative drugs with propensity for dependence’.[93] There is a trend of increasing seriousness in his conduct, including because of the repeat nature of his violent, sexual, and conditional liberty offences. The adverse cumulative impact of his behaviour since 2005 reflects a persistent disregard for Australia’s laws and indifference for the rights of others. The Tribunal accepts the Respondent’s contention that significant harm has resulted from the Applicant’s persistent crimes.[94] This includes harm experienced by victims and more broadly in terms of the government resources expended to deal with the consequences of his conduct.[95] The adverse effects on his rape victim are particularly devastating.[96]
[93] Exhibit R1, 1401 [5.4].
[94] Respondent’s Statement of Facts, Issues and Contentions dated 13 September 2024, 16 [46]-[47] (‘RSFIC’).
[95] The Direction (n 29) cls 8.1.1(1)(e)-(f); James v Minister for Immigration and Border Protection [2017] FCA 410, [46] (Robertson J); Muller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 924 [34]-[39] (Rofe J).
[96] Ibid cl 8.1.1(1)(d); Exhibit R1, 78 [6].
The Applicant committed further serious offences after receiving a formal warning dated 16 July 2013[97] about the consequences of further crimes.[98]
[97] Ibid cl 8.1.1(1)(h); Exhibit R1, 159.
[98] Exhibit R1, 228.
The totality of the Applicant’s crimes and other conduct is very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 8.1.2(1) of the Direction provides:
‘In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable’.
Clause 8.1.2(2) of the Direction states that in assessing the risk the non-citizen poses to the Australian community, decision-makers must take into account, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the noncitizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen — whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
This aspect of the Direction requires assessment of the risk the Applicant poses to the Australian community in the event he reoffends, taking into consideration both the nature of any harm and its probability. Justice Kerr has referred to this as a ‘future-focused assessment’[99] and evidence of past offending ‘is not, of itself, significantly probative’ of the committing of another offence.[100]
[99] CTK17 v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1211 [90] (Kerr J). See also Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [59] (Katzmann J); Murphy v Minister for Home Affairs [2018] FCA 1924, [37] (Mortimer J); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 (2021) 285 FCR 540, 561 [81]; Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120, [63].
[100] Hughes v The Queen (2017) 263 CLR 338, 392 [154] (Nettle J).
In Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595, Mortimer J, as her Honour then was, reasoned at [78] that:
…[t]he nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending.
In Guo,[101] the High Court held that past actions can be legitimate predictors of future behaviour. The majority observed, however, that past events ‘are not a certain guide’ and, depending on circumstances, the probability of an event occurring could be so low as to be ‘safely disregarded,’ or at the other extreme ‘may border on certainty’.[102] The majority also observed there are several factors arising in making such evaluations, and that it is ‘ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events’.[103]
[101] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 574 (‘Guo’).
[102] Ibid 574-5.
[103] Ibid 575.
Applicant’s submissions
The Applicant claims he is ‘not criminally minded’ and refers to making a ‘huge mistake’ contextualised by past ‘drug use and mental issues’.[104] He intends to ‘make different choices’ in future.[105] In a letter dated 26 September 2020, the Applicant also refers to being ‘a decent man who did a bad thing while under influence of drugs’.[106] He contextualises his offending as resulting from homelessness following the breakdown of a relationship:
‘Because of my relationship breakdown I became homeless. It was difficult to find stable accommidation which led me to mix with the wrong type of people. I started to use drugs which affected my mental state and gave me more mental issues. While my mental state got worse I started to abuse drugs further which led to my offending. I now have some clarity and wish I could go back and make different choices.’[107]
(Errors in original.)
[104] Exhibit R1, 143.
[105] Ibid.
[106] Ibid 145.
[107] Ibid 140.
The Applicant’s evidence is to the effect that despite an extensive criminal history, the Tribunal can draw confidence from changes he has made since imprisonment in 2019, such that he now constitutes a low and acceptable risk of recidivism.[108] He intends staying compliant with mental health medication and not relapsing into drug and alcohol abuse. Factors advanced as ameliorating his risk include:
(a)Rehabilitation achieved through offence-specific courses.
(b)A 2020 diagnosis of schizoaffective disorder, which constitutes a ‘turning point’ compared to past ‘intermittent periods of unstable mental health’. Although this will require ‘lifelong treatment and monitoring’,[109] the Applicant said he now understands the role his condition played in past offending behaviour.
(c)Compliance with treatment in immigration detention and an intention to receive further treatment if released. It is submitted the Tribunal can be confident he ‘will adhere to treatment and seek professional help if required, including being admitted as an inpatient or receiving assertive treatment if that becomes necessary’.[110]
(d)Protective factors as follows:
‘…the Applicant has protective factors in place which will continue if he is released. He is eager to renew his fork-lift license and obtain employment. He is also keen to continue his relationship with his son…whom he speaks with each week over the phone. He has accepted that…his former partner, and mother of his child… has probably moved on with her life and his wishes her nothing but the best in life. He has also adopted healthy stress management techniques in detention, such as attending the gym regularly and swimming. The Applicant has not taken alcohol or drugs in detention and intends to remain sober if released. Importantly, the Applicant has good insight into his mental health conditions and he knows when, where and how to ask for help if he experiences any relapses in his mental health condition’.[111]
(Errors in original)
(e)Monitoring and reporting conditions for life under sex offender legislation.
(f)Remorse for past conduct, renewed motivation, and a ‘comprehensive plan’ for release.[112] He refers to engagement with telephone counselling, with a social worker from Refugee Legal, and studying the Bible with a pastor.[113] He also aspires to reconnect with his sister and faith community if released.
[108] ASFIC (n 72) 6-7 [19]-[25].
[109] Ms Jackson’s closing submissions.
[110] ASFIC (n 72) 6 [20].
[111] Ibid 6-7 [22].
[112] Exhibit R1, 652 [13].
[113] Ibid 653 [21]-[23].
Drug and alcohol abuse
It is not contested that abuse of alcohol and drugs is a major contributing factor to the Applicant’s crimes. Evidence about this is now summarised:
(a)In a police interview on 9 March 2008, the Applicant told police when he takes drugs, he loses control.[114] The Applicant referred to consuming ecstasy and vodka prior to committing the rape offence, causing him to lose control.[115]
(b)A discharge summary from Eastern Health dated 15 November 2019 refers to the Applicant suffering drug induced psychosis from ice, heroin, cocaine, and THC.[116] He is recorded as stating that all his friends are ‘junkies’ and he was assessed as constituting a ‘High risk’ of using substances because he over-used prescribed medication and had stated: ‘people buy it for me because I’m handsome’.[117] He reported ‘blacking out’ at a friend’s house after injecting ice.
(c)A Forensicare Discharge Summary prepared on 15 April 2021 states:
‘His presentation is complicated by a history of poly substance abuse including THC, methamphetamine use and poor social support, He has a previous diagnosis of mental and behavioural disorder due to stimulant use, Mental and behavioural disorder due to alcohol use withdrawal syndrome and depression’.[118]
(Errors in original.)
(d)A medication review conducted on 13 May 2021 by a psychiatrist includes the following reference to the Applicant’s illicit drug use while imprisoned:
‘reports used to use ICE and heroin in the community. last used heroin and ICE 1 yr ago
in prison able to get access to drugs - 1-2 times per week. smoking THC and something else but cant remember name
hasn't used drugs in detention yet. hasn't been offered to him’.[119]
(e)This record conflicts with the Applicant’s current evidence that he has not used illicit drugs or alcohol since imprisonment in 2019. That said, there is no reliable basis for a finding about this and the Tribunal places no weight on the possibility he may have used illicit drugs in custodial settings.
[114] Ibid 437 [26].
[115] Ibid 439 [36]-[41], 451 [111], 453 [118].
[116] Exhibit R2, 106-110.
[117] Ibid 106.
[118] Exhibit R1, 754.
[119] Ibid 1152, 1160, 1169, 1179.
Expert evidence
There is no recent expert report regarding the Applicant’s recidivism risk. The Tribunal has considered a report from Dr Ryan dated 15 March 2010.[120] This was commissioned by the Applicant’s then lawyer in the context of sentencing in 2010 and is now quite dated. After setting out the Applicant’s personal, psychiatric, forensic, and drug history, Dr Ryan recorded the Applicant’s claims about stressors and possibly suffering a ‘blackout’ due to drink spiking by housemates, as a possible cause of his sexual offending. In his report for the Court, Dr Ryan stated that the Applicant:
(a)Had a 7-year history of mental health and substance abuse problems, suggestive of major depression, alcohol dependence and polysubstance abuse. He is noted to have fallen into this lifestyle after losing the support of a cousin who sponsored his migration to Australia, Dr Ryan recorded the Applicant’s claim about using alcohol, cocaine, cannabis, speed, and Valium.
(b)Several brief attempts at work and study seem to have failed due to the Applicant’s struggles adjusting, substance misuse, and related lifestyle.
(c)In a setting of unsettled circumstances and substance abuse in 2003, the Applicant was admitted to a psychiatric unit where he exhibited depressive symptoms and psychotic features such as persecutory beliefs and auditory hallucinations. Prior to this he repeatedly presented to hospital with anxiety and physical health complaints. During a five-week admission the Applicant was treated with anti-depressant and antipsychotic medication, which was followed up for several years by a Community Mental Health Clinic for medication and psychosocial support.
(d)An original diagnosis of schizophrenia was later discounted because the Applicant remained free of psychotic symptoms when antipsychotic medication was ceased. Dr Ryan opined that in retrospect, the likely diagnosis was a ‘major depressive episode with psychotic features’, although the role of substance abuse in generating psychotic symptoms ‘was never entirely clear’.[121]
(e)Dr Ryan assessed the Applicant’s presentation at the time of their consultation as consistent with depressive symptoms of mild-to-moderate severity, in the context of incarceration and impending sentencing. There was no evidence of psychotic symptoms or suicidal ideation. Dr Ryan noted the Applicant was commenced on an antidepressant medication and a low dose antipsychotic medication after imprisonment, which occurred about a week prior to their consultation, and was not then exhibiting symptoms of psychosis.
(f)The Applicant’s stressors at interview were noted to be concerns about his pregnant partner in Australia and family in Ethiopia.
(g)Dr Ryan said the Applicant would require ongoing monitoring and his medication needs considered by prison psychiatric services. He also needed ongoing support for substance abuse. Dr Ryan further noted that use of cannabis was ‘especially detrimental to those with a previous history of psychosis’.[122]
[120] Ibid 427-431.
[121] Ibid 430-1.
[122] Ibid 431.
The Applicant relies on the 2020 report of Dr McInerney[123] as follows:
‘Dr McInerney observed in 2020 that “[w]ith the appropriate level of support, [the Applicant] should be able to comply with a community-based disposition” and that “[h]elpful conditions of a non-custodial disposition will include abstinence from illicit substance use, moderate use of alcohol, and compliance with mental health treatment.” The Tribunal should place weight on that independent and authoritative report in assessing risk: Direction, 7(1). And in the period since that assessment was conducted, there is evidence the Applicant has gained further insight and solidified the protective factors. His behaviour has been excellent in detention. The Tribunal can therefore have confidence that the risk of re-offending is low.
The Applicant accepts this primary consideration will weigh against him, because he understands the seriousness of his past offending (especially his sexual offending). Nevertheless, given the low the risk of recidivism, the Tribunal should only place moderate weight on this factor. The Tribunal is not compelled to apply paragraph 7(2) of the Direction inflexibly in every case so as to attribute greater weight, and the circumstances here warrant a different approach’.[124]
[123] Ibid 1398-1406.
[124] ASFIC (n 72) 7 [24]-[25].

The Respondent accepts the Applicant will suffer hardship if returned to Ethiopia, including by not receiving comparable treatment for his mental health conditions and HIV needs. It is also accepted he is ‘likely to suffer physical and psychological impacts associated with lack of medical and social supports in Ethiopia’, because of ‘identifying as an LGBTQIA+ individual’, bisexual man with HIV, and ‘some level of cultural dislocation due to language and cultural barriers’.[255] The Respondent contends, however, that any hardship confronting the Applicant must be considered in the context of the Direction:
Direction 110…directs decision-makers principally towards more tangible hardships than to emotional hardships which are likely to be common amongst most, if not all, individuals to whom Direction 110 applies. Accordingly, while the Respondent acknowledges the emotional difficulties that would undoubtedly be experienced by the Applicant were he to be removed, the Respondent does contend that such a consideration ought to be given limited weight within the context of Direction 110’.
In all of these circumstances, the Respondent accepts that this consideration will weigh in favour of the Applicant. However, the Respondent contends that, to the extent that it does, that is outweighed by Primary Considerations 1, 2 and 4.[256]
[255] RSFIC (n 94) 36-7 [110]-[111].
[256] Ibid 37 [113]-[114].
Tribunal findings: Extent of impediments if removed
The Applicant is currently 42 years of age and suffers mental and physical illnesses. There is evidence dating back to 2003 regarding admissions for ‘drug-induced psychosis and depression’.[257] The evidence also refers to him being diagnosed with schizoaffective disorder in May 2020,[258] polysubstance use disorder,[259] and depression. There is no dispute the Applicant was diagnosed HIV positive in 2020.
[257] Exhibit R1, 751, 1401 [3.5], 1405 [10.3].
[258] Ibid 750-1, 798, 1148.
[259] Ibid 430, 738.
The Applicant claims he does not have a passport or travel document. This is not considered a significant impediment to repatriation, however, given there is no dispute he is an Ethiopian citizen and no evidence that a passport or travel document would not be granted.
The Applicant is concerned about his ability to access specialist support and medications to treat his conditions, including antiviral medication, if removed. There is a St Vincent’s Hospital Infectious Diseases Clinic record about the possibility of the Applicant accessing ‘antiviral medication through public hospitals when / if he does get deported’.[260] He could not recall this discussion, however, and the Tribunal places no weight on this prospect.
[260] Ibid 1135.
The Applicant left Ethiopia at the age of 16 or 17 and there is no persuasive evidence he has family members in Ethiopia or elsewhere outside of Australia to rely upon in assisting his resettlement. It is also accepted that after living in Australia all his adult life, his ability to speak Oromo is no longer fluent and his cultural outlook may differ significantly from other Ethiopian citizens. Having spoken Oromo and been exposed to Ethiopian culture until almost an adult, however, he may be able to restore this.
The Tribunal is satisfied the Applicant would be confronted by considerable impediments if returned. He has worked infrequently in Australia and has been reliant for significant periods on Government payments. The Applicant has little employment experience and no apparent sources of financial, practical, or emotional support. There is no evidence of any savings or superannuation funds to establish himself, nor family members in Australia who may be willing to assist him in this regard.
If he does remain compliant with his medication and avoids a relapse into ill-health or drug and alcohol abuse, there is some prospect of him being able to re-settle in Ethiopia and provide for his daily needs. For the reasons elaborated upon earlier, however, the Tribunal is not confident of this, including because of the stressors that removal would subject him to and / or problems with accessing required medications. The Applicant has a substantial criminal record, persistently abused alcohol and drugs, and suffers physical and mental health issues that require specialised treatment. Although there is no evidence that treatment for his conditions is unavailable in Ethiopia, there are likely to be considerable access challenges, including if he experiences a deterioration in his mental health. It is also accepted that any Government-funded services and support in Ethiopia would likely be far below what the Applicant has received in Australia. The Direction refers to consideration of impediments, however, in the context of what is generally available to other Ethiopian citizens, not by way of comparison with Australia.
If the Applicant did relapse into drug or alcohol abuse, or was non-compliant with his medication, or has another episodic event, his mental and physical health is likely to deteriorate significantly. Even if he were to remain compliant, abstinent, and law-abiding the Tribunal considers it likely he would be confronted by considerable impediments in re-establishing himself and maintaining basic living standards – even in the context of other Ethiopian citizens. On balance, this consideration weighs very substantially in favour of revocation.
Additional considerations
Delayed processing of protection visa application, indefinite detention, refoulement, international reputation, and claims regarding continuing punishment
The Applicant has been in immigration detention for over four years, including during the COVID Pandemic. His application has been returned to the Tribunal for re-hearing twice before by the Federal Court. It is also submitted that the Respondent has ‘delayed processing the Applicant’s protection visa application lodged in December 2023’.[261] No corroborating evidence was provided to support of this assertion and, for the reasons expressed earlier, the Tribunal does not accept it.
[261] ASFIC (n 72) 13 [49].
The Applicant contends that the extended time he has spent in immigration detention has been made more severe because of his mental health issues, and the Tribunal should take account of ‘the real likelihood’ that he:
‘…will spend a further protracted period in immigration detention while his claims are resolved and while arrangements are being made for [his] removal, noting he does not have travel documents and his complete absence of connections to Ethiopia’.[262]
[262] Ibid [51].
It is submitted that even if the Applicant is not refouled but kept in detention indefinitely, this breaches Australia’s international obligations under various instruments to which it is a party. As the decisions in Omar and Plaintiff M1/2021 make clear, the Tribunal must meaningfully engage with the Applicant’s claims, which include the prospect of indefinite detention. This can only be achieved with an element of speculation, the outer limits of which are indeterminate. Assessments about the duration of a non-citizen’s detention are different from the assessment undertaken about the likelihood of future crimes or other serious conduct. The latter is assisted by past convictions and expert evidence, whereas the former turns on the unpredictable course of future events. Factors can include: the outcome of a yet-to-be-determined protection visa process; appeals yet to be lodged; rapidly changing circumstances in the country of reference; ministerial discretion yet to be considered; and other events.
Pursuant to the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth), which amended s 197C of the Act, it is no longer required that the Applicant be removed to Ethiopia under s 198 of the Act, irrespective of the existence of non-refoulement obligations. He has applied for a Protection Visa and will not be removed until these claims are finally determined.[263] The Respondent is compelled to assess non-refoulement claims in compliance with Direction No 75 – Refusal of Protection visas Relying on Section 36(1C) and Section 36(2C)(b) (“Direction 75”). This requires that when considering an application for a Protection Visa, an assessment must first be made about whether refugee and complementary protection criteria are met before considering ineligibility criteria. It is accepted, however, that only a successful protection visa application can avoid the prospect of removal.[264] A protection finding would likely result in the Applicant’s release on a BVR. If the Protection Visa application is refused, he would again be liable for removal as soon as reasonably practicable. The time he spends in detention would then be affected by factors such as appeals lodged, or the Minister’s consideration of an application to exercise a non-compellable Ministerial discretion pursuant to s 195A of the Act,[265] or whether to make a residence determination under s 197AB. Other factors that could impact the length of detention include how changing circumstances in Ethiopia may impact an obligation to remove the Applicant as soon as reasonably practicable, or the potential for third country relocation, or a decision to elect voluntary return. There is no current evidence about how these multiple future factors might play out.
[263] The Act (n 15) s 198(5); DOB18 (n 251) [35] (Griffiths J).
[264] DQM18 v Minister for Home Affairs (2020) 278 FCR 529, 551 [107], [109]. (Bromberg and Mortimer JJ).
[265] Plaintiff S4/2014 (n 247); Minister for Immigration and Border Protection v SZSSJ (n 247) 191 [16].
The above uncertainties raise the prospect at least that in the event of a non-revocation decision, and denial of the Applicant’s protection visa, he could remain in immigration detention with no fixed endpoint, which can be characterised as prolonged or indefinite detention. Notwithstanding the absence of expert evidence on this issue, the Tribunal accepts this may result in deterioration of his mental health. This prospect is speculative, however, because the claims underlying his Protection Visa application are yet to be finally determined. Some weight is nevertheless attributed to this possibility.
Were the Applicant to be refouled in the future contrary to a finding that non-refoulement obligations are owed to him, negative consequences may arise not only for him, but also for Australia’s international standing and reputation as a party to the various Conventions, Protocols, Covenants, and other obligations under customary international law.[266] There is no evidence, however, that manifests the possibility that Australia’s international commitments won’t be honoured. The Applicant’s submissions rely on events yet to occur, such as a non-revocation decision and rejection of his Protection Visa. But there are other factors to consider as discussed earlier that might end his detention, although it cannot currently be said how these might play out or how long they might take.
[266] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153.
There are policy assurances in the Direction[267] and extrinsic material for relevant legislation about how Australia’s non-refoulement obligations would continue to be met. When s 197C was inserted into legislation by the Migration and Maritime Powers Legislation Amendment(Resolving the Asylum Legacy Caseload) Act2014 (Cth), the Explanatory Memorandum (“EM”) referred at [1142] to the following:
‘Australia will continue to meet its non-refoulement obligations through other mechanisms and not through the removal powers in section 198 of the Migration Act. For example, Australia’s non-refoulement obligations will be met through the protection visa application process or the use of the Minister’s personal powers in the Migration Act, including those under sections 46A, 195A or 417 of the Migration Act.’[268]
[267] The Direction (n 29) cl 9.1.2(3).
[268] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) 166 [1142].
In the Statement of Compatibility with Human Rights attached to the EM, a further statement of policy intent is at page 28:
‘Whilst on its face the measure may appear to be inconsistent with non-refoulement obligations under the CAT and the ICCPR, as set out in the overview to this Statement, anyone who is found through visa or ministerial intervention processes to engage Australia’s non-refoulement obligations will not be removed in breach of those obligations. There are a number of personal non compellable powers available for the Minister to allow a visa application or grant a visa where this is in the public interest. The form of administrative arrangements in place to support Australia meeting its non-refoulement obligations is a matter for the Government. This consideration is separate from the duty established by the removal power’.
In BDQ19 v Minister for Home Affairs (2019) 167 ALD 38, Kerr J held at [64] that ‘there is nothing’ in the text of the Direction ‘that can be understood to manifest the possibility that those commitments will not be honoured.’ His Honour reasoned at [68]-[70]:
‘To construe the relevant clauses in that way leaves the decision maker to proceed on the basis that the existence of a non-refoulement obligation will not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa even in circumstances where, absent non-compellable Ministerial intervention, that cancellation would necessitate their removal to a country in respect of which a non-refoulement obligation exists. It is a direction to the decision maker to proceed in that manner because Australia ultimately will not refoule such a person.
…the decision maker is simply made aware that for so long as the subject of a visa revocation decision remains owed non-refoulement obligations by Australia he or she will not be removed to a country where those obligations will be violated because Australia will, by other means legally available to it, adhere to its international obligations not to return him or her to that country.
The suggestion of inconsistency conflates the notion of durable settlement with non-refoulement. The international community and Australian refugee policy both give preference to durable solutions. However, the duty not to refoule that Australia has accepted under the conventions cited in cll 10.1, 12.1 and 14.1(1) of Ministerial Direction No 65 does not extend that far. The commitment stated in cl 14.1(2) is no larger than that which Australia has accepted under those conventions: namely, that Australia will not remove a non-citizen to a country in respect of which a non-refoulement obligation exists.’
As Wigney J noted more recently in BHL19[269] at [224];
‘One would have thought that the breach of such obligations was not something that a reasonable Minister of State would take lightly.’
[269] BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94, [224].
The Tribunal is satisfied that concerns about future refoulement are minimised by the Australian Government’s express policy commitment not to do so. Moreover, speculation about a future risk of Australia acting contrary to unenacted treaty obligations, whether relating to refoulement or detention, or consequential damage to Australia’s reputation, does not constitute a persuasive reason for revocation in the Tribunal’s exercise of the discretionary power conferred by s 501CA(4) of the Act.
The Tribunal does not accept that a non-revocation constitutes ‘additional and unwarranted punishment’ for the Applicant.[270] That is because the ‘power to remove or deport aliens from a country is executive in nature and…non-punitive.’[271] In O’Keefe v Calwell,[272] Latham CJ referred to the deportation of a convicted immigrant as a measure of protection of the community and not as punishment for any offence. More recently in Falzon at [96], Nettle J held that, consistent with previous High Court reasoning,[273] immigration detention is valid for the purpose of removing a non-citizen from Australia, is not punitive, and involves no exercise of judicial power or intention to impose additional punishment.[274]
[270] Exhibit R1, 201.
[271] Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333, 343 [29], 357 [88], 358-9 [93]– [94] (Nettle J) (‘Falzon’).
[272] (1949) 77 CLR 261, 278.
[273] Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at [33].
[274] See also Falzon (n 271) at [48], which referred with approval to Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 610 [74].
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining whether there is ‘another reason’ why the visa cancellation should be revoked, the Tribunal has applied the Direction to the specific circumstances of his case.
The Applicant has committed multiple violent, sexual, and other crimes since 2005. Non-custodial and custodial punishments from the courts, and a formal warning from the Respondent in 2013, have been insufficient to dissuade him from further offending. This includes family violence offending against Ms AA. The adverse cumulative impact of his behaviour over a long period reflects a disregard for Australian laws and indifference for the rights of others. He has harmed multiple victims and devastating consequences could result from a repeat of his most serious crimes. Violent and sexual offending in particular falls into a category where even a low probability of repeat is unacceptable.
The Applicant has acted contrary to the community’s reasonable expectation that non-citizens will obey Australia’s laws, respect important institutions, and not engage in conduct that harms others. The principles at cls 5.2(1)-(5) of the Direction are particularly apposite and the Applicant should expect to forfeit the privilege of being allowed to remain in Australia. His sexual crimes against women and family violence against Ms AA also raise serious character concerns within the ambit of cl 8.5(2)(a) and (c) of the Direction. Having regard for the norm described as the expectations of the Australian community, little tolerance would be extended to him, despite having lived in Australia since the age of 18.
The Tribunal accepts Dr McInerney’s 2020 assessment that the Applicant suffers a severe and enduring mental illness requiring lifelong treatment, monitoring, and ‘assertive’ professional supports, and that his circumstances could ‘rapidly destabilise with further drug and alcohol use or stress’. This includes factors such as limited personal supports, financial problems, and ‘unrealistic plans for a reunion with his ex-partner and child’.[275] The evidence discloses repeated instances where the Applicant’s past relapses involved non-compliance with mental health medication, including when he felt he didn’t need it, or was confronted with adverse life events such as a relationship breakdown, or lost the support of family members, or risked losing close contact with his son. The protective factors the Applicant currently invokes are largely aspirational and not meaningfully advanced. His claims about reunion with Ms AA are unpersuasive given she has lived in New Zealand with their child for the last five years and there is no recent evidence regarding her intentions.
[275] Exhibit R1, 1406.
There is scant independent evidence to corroborate the Applicant claims about offence-specific rehabilitation and the Tribunal considers he has unmet rehabilitative needs. His recidivism risk on current evidence is high and unacceptable.
The Tribunal accepts the Applicant has some family and other ties in Australia. Although the duration of his residence here exceeds 20 years, the strength and nature of his ties, on current evidence, is very limited. There is also scant evidence to corroborate the nature and strength of his relationships with the minor children whose interests he invokes. This includes current evidence from parents or other carers about the extent to which they would welcome and facilitate the Applicant’s desire to play a more prominent paternal and avuncular role.

In terms of the Applicant’s non-refoulement claims, the Tribunal has decided to defer its assessment to the comprehensive s 36A process he initiated in November 2023 when lodging a Protection Visa application. This includes because of the broad, complex, and at times inconsistent and uncorroborated nature of some claims.
In terms of impediments if removed, the Tribunal is satisfied the Applicant would be confronted by considerable impediments if returned, noting that this is not an immediate consequence of a non-revocation decision given he has a live Protection Visa application under consideration.
In terms of the additional considerations advanced on the Applicant’s behalf, there is no persuasive evidence for the contention that the Respondent has ‘delayed processing the Applicant’s protection visa application’. It is also not possible to speculate on the time the Applicant may spend in detention, nor does the Tribunal accept this can currently be characterised as indefinite in circumstances where his Protection Visa application is being considered. Other irresoluble branches and sequels of future events may also include appeal rights accruing if his Protection Visa application is rejected, or there is a non-revocation decision in the current matter, or an application is made for the exercise of a non-compellable ministerial discretion.
There is no evidence that manifests the possibility that Australia’s international commitments won’t be honoured. The Applicant’s submissions in this regard are speculative at best.
Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the mandatory cancellation of the Applicant’s visa should be revoked. That is because the primary consideration Protection of the Australian community, which is given greater weight that the other primary considerations, coupled with Family Violence, and Expectations of the Australian community, considerably outweigh the combined weight to be given to the countervailing primary and other considerations.
The Tribunal very much appreciates the assistance provided by Ms Jackson who prepared written submissions and appeared for the Applicant. Her generous contribution of time and professional skills were of great assistance the Tribunal and is in the finest traditions of the Australian Bars.
DECISION
The Tribunal affirms the reviewable decision.

196. I certify that the preceding one hundred and ninety-five (195) paragraphs are a true copy of the written reasons for the decision herein of Senior Member A. Nikolic

................[sgd]........................................................
Associate
Dated: 4 November 2024

Date of hearing: 8-9 October 2024

Counsel for the Applicant:
Ms Melinda Jackson

Solicitors for the Respondent: Mr Ingmar Duldig (Clayton Utz)

Date of hearing:	8-9 October 2024
Counsel for the Applicant:	Ms Melinda Jackson
Solicitors for the Respondent:	Mr Ingmar Duldig (Clayton Utz)