BYMD and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

BYMD and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1774 (22 June 2023)
Division:GENERAL DIVISION
File Number(s): 2021/4437
Re:BYMD
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:22 June 2023
Place:Melbourne

The Tribunal affirms the decision under review.
.......................[SGD].........................
Dr Stewart Fenwick, Senior Member
Catchwords
MIGRATION – mandatory cancellation of visa – national of Ethiopia – Class BA Subclass 200 Refugee visa – failure to pass character test – sexual offences – diverse other offending – whether another reason cancellation should be revoked – minor child overseas – mental health condition – HIV positive status – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Migration Act 1958 (Cth)
Cases
BYMD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 936
FYBR v Minister for Home Affairs [2019] FCAFC 185
Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17
Secondary Materials
Direction No. 99 — 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
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
22 June 2023
BACKGROUND

BYMD originally lodged an application with the Tribunal on 5 July 2021 for review of a decision of a delegate of the Minister Administering the Migration Act 1958 (the Act), dated 29 June 2021. This was a decision not to revoke the mandatory cancellation of the Applicant’s Class BA Subclass 200 Refugee visa, which had been cancelled due to the operation of s 501(3A) of the Act.
The Tribunal, differently constituted, decided on 21 September 2021 to affirm the delegate’s decision. BYMD successfully appealed this decision, and on 15 August 2022, the matter was remitted by the Federal Court of Australia to be determined afresh (BYMD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 936).
BYMD was born in the western Oromia region of Ethiopia in 1983 and, following a period of time in Kenya, arrived in Australia at the age of 17. He first appeared in court in 2003 and was subsequently convicted on later occasions, most recently in August 2020. BYMD received a total sentence of over 5 years imprisonment in 2010 for serious sexual offences. His visa was cancelled when imprisoned for an aggregate 12 months for contravention and sexual assault charges, at his last court appearance.
BYMD is HIV positive, and has a history of mental health conditions that have been identified as relevant to his offending history. His mental health also became a factor in the conduct of the hearing on remittal.
BYMD formed a relationship in 2008 with Ms F, and a child was born of this partnership in September 2010 (M), following the Applicant’s incarceration. Both at the time of the original Tribunal hearing and of the hearing on remittal, Ms F and M were located in New Zealand. Ms F participated in the original hearing but declined to be involved in the hearing on remittal.
BYMD represented himself at the hearing on remittal. He lodged no fresh material, but statements and submissions lodged previously were available to me. These include statements provided by the Applicant and written submissions prepared on his behalf by Refugee Legal during the revocation process.
The Respondent lodged a Remittal Bundle (RB) including the documents originally lodged under s 501G of the Act (G), and material produced under Summons. The Respondent also lodged both a Statement of Facts, Issues and Contentions (SFIC) dated 9 December 2022, and a Revised SFIC (RSFIC), dated 16 March 2023. The Respondent lodged a bundle of records for BYMD’s period in immigration detention (Exhibit R1) including medical records, and a further medical record was subsequently lodged (Exhibit R2).
Procedural history
The hearing on remittal (hereafter, the hearing) was initially conducted on 9-10 January 2023. BYMD engaged effectively, including on the subject of the availability of two witnesses, being Ms F and a representative of a Forensicare psycho-social rehabilitation program known as the Tambo Program, Mr G. Due to the time that had apparently elapsed since the Applicant last sought to arrange an appearance by Ms F, the Tribunal took the additional step of approaching her by email to confirm her position. Ms F informed the Tribunal by reply email that she did not wish to appear.
The hearing was adjourned and listed to resume on 30 January 2023, to provide the Applicant with an opportunity to continue to arrange the appearance of Mr G, who BYMD had indicated was willing to appear. I also sought the assistance of the Respondent in lodging records relating to BYMD’s time in detention.
In response to the Tribunal’s standard email reminder about the resumed hearing, BYMD sent to the Tribunal on 28 January 2023 (a Saturday) an email, the content of which raised questions about his capacity to appear. Subsequently, on the morning of 30 January 2023, the Tribunal was informed that the Applicant had been admitted to hospital over the preceding weekend. The matter was accordingly again adjourned, and relisted to 14 February 2023. The Respondent lodged the detention records (R1) on 31 January 2023.
The Applicant was willing to proceed with the resumed hearing, and it emerged from communications with BYMD and his evidence, that the Applicant had spent the intervening period in a mental health facility. Some further evidence was received from BYMD, including about the Tambo program. However the Applicant presented in an emotional state and his evidence thereafter broke down relatively quickly. It appeared to both myself and the Respondent’s representative that the resumed hearing could not safely proceed.
The matter was again adjourned and listed to resume on 3 March 2023. On 28 February 2023 the Respondent lodged a further document (R2) being a brief report from a consultation with a psychiatrist in detention on 20 February 2023. This thrust of this report was that the Applicant had the capacity to appear before the Tribunal.
BYMD informed the Tribunal verbally immediately prior to the further resumption of the hearing on 3 March 2023 that it was his view that his involvement had concluded, and he did not wish to participate. After informing the Respondent’s representative about this, I issued a Direction that the Respondent lodge its RSFIC to address the considerations applicable due to the issuing of Direction 99 (which commenced on that date). I also invited BYMD in that Direction to make any further written submissions that he wished, and to inform the Tribunal whether he intended to make any further oral submissions. No further communication was received from the Applicant.
The matter was formally reserved following the lodging of the RSFIC on 16 March 2023, however, on 8 May 2023, the Respondent informed the Tribunal that BYMD had been remanded in custody. The Tribunal was subsequently informed that the Applicant had returned to immigration detention, and a directions hearing was conducted on 7 June 2023 to address this issue.
BYMD appeared and explained that he had been recently bailed to immigration detention pending a court hearing approximately one week from the date of the directions hearing. He stated that the matter related to outstanding charges arising from an incident at Crown Casino in 2020. The Respondent made no submissions in respect of this matter. I invited BYMD to describe his current circumstances, and he responded that he was taking his medication regularly and ‘travelling well’. He considered that his medication was helping him.
LEGISLATION
Pursuant to s 501(3A) of the Act, a person’s visa must be cancelled if the Minister is satisfied that they fail the ‘character test’, by reason of having a substantial criminal record. This criterion is satisfied where a person has been sentenced to a term of imprisonment of 12 months or more (ss 501(6)(a) and (7)(c)).
Pursuant to s 501CA(4), the Minister, or a decision-maker, may revoke this mandatory cancellation where representations have been made by the person, and they are found to pass the character test, or where the decision-maker is satisfied that there is another reason why the original decision should be revoked.
Direction 99, referred to above, is made under s 499 of the Act, and a decision-maker must comply with it in the exercise of relevant powers and functions. The various considerations set out in the Direction will be addressed in the body of these reasons. However, I note that principles are set out (5.2) which provide the framework within which a decision is to be made. They are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
ISSUES
The first issue that arises is whether BYMD fails the character test. I am satisfied on the basis of the material before me, specifically the Applicant’s criminal history check (RB3/G2A), that he has a substantial criminal record as defined by the Act.
Accordingly, the next issue for determination is whether there is another reason that the mandatory cancellation of BYMD’s visa should be revoked.
PRIMARY CONSIDERATIONS
Protection of the Australian community
This consideration requires decision-makers to have particular regard to the principle that entering or remaining in Australia is a privilege conferred on non-citizens in the expectation that they are, or have been, law-abiding (8.1(1)).
Nature and seriousness of conduct to date
BYMD has faced charges in courts on 13 separate occasions (G2A) between 2003 and 2020. He has been convicted of approximately 30 charges for a wide range of offending: multiple charges of rape and indecent assault; sexual assault; recklessly cause injury; possess and carry weapon; theft, robbery, handling or receiving stolen goods, property damage, and obtaining financial advantage by deception; driving offences; breach of court outcomes; and resist police.
Sentences imposed for this offending have spanned the full range of outcomes including: no conviction recorded (at court appearances in 2003); suspended sentences; community based orders; fines, compensation and reparation; and, periods of imprisonment from seven days to a total of more than 5 years. The community based orders included a period of unpaid community work, and on another occasion, the requirement to submit for drug testing and other assessment for relevant programs, including drug and alcohol, psychiatric or psychological.
With respect to the serious sexual offending for which BYMD was convicted in a county court in March 2010, I summarise as following from the remarks of the sentencing judge (G2B):
(a)the Applicant was formally sentenced as a serious sexual offender;
(b)BYMD denied the offending, and the victim was subject to cross-examination suggesting falsehood, indicating lack of remorse;
(c)the victim impact statement revealed substantial and prolonged emotional and psychological disturbance;
(d)the offending occurred in a share house of two males and two females, the victim being one of the housemates;
(e)BYMD came to her room after midnight initially on a pretext of being ill and then of having a chat;
(f)during the course of a conversation BYMD unexpectedly put his hands inside the victim’s underpants, and thereafter followed a series of assaults to which the victim resisted verbally and physically, and during which the Applicant removed his clothes and attempted also to remove the victims’;
(g)while the physical elements of the offending were considered to be at the lower end, the judge acknowledged that ‘rape is always a serious crime because rape has serious consequences’;
(h)the judge identified a history of mental health issues including a period of admission in 2003 for about five weeks, contact with community mental health services between 2003 and 2006, including treatment with a range of medication, and a potential diagnosis of schizophrenia, as well as a history of substance misuse;
(i)evidence was given by a forensic psychiatrist that BYMD felt a sense of injustice about the offending, and there was no other indication of serious psychiatric symptoms at the time, but the Applicant’s mental state had declined in jail and transfer to Thomas Embling Hospital[1] remained a possibility;
(j)the judge accepted that BYMD’s emotional and psychological state at the time of offending may have made it harder to make moral judgments and understand the consequences of his behaviour;
(k)prospects of rehabilitation were considered somewhat problematic unless BYMD came to terms with what he had done, but the judge acknowledged that the Applicant’s criminal offending began about the time of his hospital admission in 2003; and
(l)a head sentence of five years and seven months was imposed across seven counts.
[1] A secure, forensic mental health facility.
With respect to the more recent sexual assault, I note the following from the transcript of proceedings in a magistrates court in August 2020 (G2C):
(a)BYMD plead guilty and the court had before it material from a psychiatrist and Forensicare;
(b)the offending took place when BYMD was living in a van belonging to a tenant of an apartment block and involved the Applicant groping another tenant;
(c)according to his legal representative, BYMD had been on remand initially without representation and was placed in Thomas Embling Hospital, and received ‘assertive’ mental health treatment including depot injection;[2]
(d)the magistrate observed that BYMD appeared to be of significant risk due to questionable compliance with medication in the past, and was floridly mentally ill at the time of offending, reducing moral culpability;
(e)the magistrate also took into account reports, including by the psychiatrist, of sexualised behaviour toward police;
(f)BYMD had been diagnosed in the past with mental illness, at times drug-induced and also other psychosis, but had both prospects of and previous experience with leading a good life when undertaking prescribed treatment;
(g)the Applicant was homeless and therefore needed structure and monitoring which was best achieved under a period of parole, the magistrate sentencing BYMD to 12 months’ imprisonment, with a minimum of five months before eligibility for parole; and
(h)BYMD was placed on the sex offenders register for life.
[2] The periodic administration of medication, including antipsychotics, to permit slow release over time in circumstances where patient capacity or compliance may be in doubt (based on publicly available sources).
Summons material includes documents relating to charges including recklessly cause injury for which BYMD was convicted in December 2019 (RB4, 356-367). This charge is said to have arisen from an incident with Ms F when she was visiting from New Zealand at a time when the Applicant was caring for their child, M. An argument broke out about M’s passport and birth certificate which BYMD took possession of. A physical altercation is then said to have taken place during which BYMD pushed Ms F who fell, and was subsequently repeatedly kicked by BYMD. The Applicant accepted bail conditions including to not commit family violence against Ms F and M, and to remain five metres away from them, and 200 metres away from anywhere they reside. Movement records indicate M travelled back to New Zealand within a week of this incident (SFIC, Annex).
A copy of a Family Violence Final Intervention Order issued on 18 February 2020 (G2R) was provided by BYMD’s previous legal advisers. The named protected persons are Ms F and M and the applicant identified is a member of Victoria Police. The order was for a term of 12 months and its specified condition to not commit family violence against the protected persons and the application was made after the protected persons travelled to New Zealand.
In a written statement submitted during the initial revocation consideration (G2J), BYMD states:
(a)he stayed with close relatives upon arriving in Australia, but they were divorcing and after about a year the Applicant became homeless;
(b)while ambitious, he was unable to complete vocational courses due to his emerging mental health issues;
(c)he spent a lot of time with people providing a negative influence, was lonely and anxious, and ‘suffered increasingly from gambling, alcohol and drug addictions and serious mental illness’;
(d)he met Ms F in late 2008 who later became pregnant, although they were not living together, and the Applicant was convicted and jailed around the same time;
(e)after release from prison he ceased medication as he was feeling better, and undertook work for several years, but was then referred to a psychiatrist and recommenced medication; and
(f)after breaking up with Ms F the Applicant became homeless, stopped taking his medication and again abused alcohol and drugs.
When questioned in evidence about some of his early offending, BYMD stated that he became homeless six months after arriving in Australia, and was referred to a social worker by his language school. The Applicant appeared to acknowledge a serious assault upon a former partner (RB5, 509) (other than Ms F).

BYMD acknowledged taking the car of a housemate in 2004 which he later crashed. The Applicant was unable to recall another incident in 2005 said to involve robbery with violence, stating that he used to drink ‘to the max’ and most of the time would ‘blackout’. BYMD also stated that ‘my past is pretty ugly’.
When questioned about the rape conviction BYMD initially excused his behaviour, stating for example that he had been to different nightclubs, and thought there had been ‘something in my drink’. He also stated he had been intimate with the victim previously and thought it was OK to ask for sex. BYMD at different points stated that he did not feel himself at the time of the offending, but also stated that he recalled what happened, then later that he did not recall some specific elements of the offending, which was why he did not plead guilty.
The Applicant stated that he puts the blame on himself, that he has a ‘disgusting past’ and was ‘very remorseful’. BYMD was unable to remember describing himself to a psychiatrist as innocent (RB4, 429). When I asked the Applicant directly if he believed he had committed the offending, he expressed a lack of confidence in the justice system, and he also denied misleading police during the investigation.
BYMD agreed that he had received a notification of intention to cancel his visa while imprisoned on the rape conviction. He accepted that he had signed an acknowledgement, and that a decision was made not to cancel his visa. When it was put to the Applicant that he knew there was a risk his visa would be cancelled, he responded that he was ‘all over the place’. BYMD added that after prison he was working, providing for and looking after his son. However, the relationship broke down and he went back to ‘the same place’ of drug and alcohol abuse, and forgot about the letter.
BYMD was asked about reports made to police in 2015 and 2016 by Ms F following arguments with the Applicant (RB5, 571-576). He stated that arguments were not unusual in the relationship but he denied ever striking Ms F, notwithstanding a report to this effect. The Applicant disagreed that he threatened Ms F with a knife in an incident reported in 2017 (RB5, 527), stating that he was eating an apple with the knife at the time, and had been arguing with her nephew. BYMD was unable to explain why these accounts given in evidence did not correlate to convictions on an assault and a weapons charge.
When asked about the conviction for recklessly cause injury, also involving Ms F, BYMD explained the altercation by stating that he had ‘lack of trust issues’, and that false allegations had been put to him. BYMD also referred to evidence given by Ms F at the original Tribunal hearing, stating that she was reluctant to give evidence again since she her previous evidence denying any assault had not been accepted. In short, the Applicant stated that Ms F walked away during the altercation and ‘hurt herself on the steps’.
BYMD also disputed that M was present at the time, stating instead that the child was asleep. He stated that he was afraid that Ms F would take M back to New Zealand, and therefore took control of M’s passport. The Applicant stated that the finding of guilt was the result of the court believing a story that Ms F had fabricated.
When asked whether M was affected by his offending, BYMD stated that the three have a strong bond, and that he and Ms F tried to avoid arguing in front of M. BYMD stated that the child’s condition was very hard for both of them (which I take as reference to their diagnosis of autism (G2J)).
BYMD strenuously denied that he posed a risk to his partner and M, despite a police report to this effect (RB5, 563). He stated that Ms F ‘loves me like no other’ and that he is a changed person, stating ‘I have never been clear like I am today’. BYMD stated that he is ready to move forward to the future.
With respect to the conviction for sexual assault in 2020, BYMD initially accepted that he had attempted to enter an apartment, then moved to another apartment, at which point he attempted to kiss and then groped the female occupant. BYMD then stated that he was sleeping in a van, and upon hearing a noise came out and saw the victim. He had ‘seen her around’ and spoke to her asking for sex, and then all of a sudden grabbed her as she was trying to enter a door.
The Applicant stated there was ‘something not right with me’, and he left when asked to do so. BYMD added that later at the police station he also propositioned two female police officers. In answer to a question from myself, the Applicant stated that he was not taking his medication at the time of this offence. He twice stated that ‘only God can judge me’.
BYMD acknowledged his breach and failure to comply offending, and accepted that he had been given ‘second chances’ in the past.
Submissions and findings
The Direction specifies, relevantly, that violent or sexual crimes and crimes of violence against a woman should be considered to be very serious (8.1.1(1)(a)). I must also consider factors including: the sentences imposed; frequency of offending and any increasing trend in seriousness; the cumulative effect of repeated offending; and whether there has been re-offending after a formal warning about the consequences for migration status of further offending (8.1.1(1)(c)-(g)).
Written submissions made previously on BYMD’s behalf (RB7) emphasise that his offending should be seen through his experience of personal hardship, drug dependency and poor mental health. It identifies six convictions out of 13 relating to violent offences, but submits BYMD abstained from criminal conduct for a period of around eight years (2010-2018), and following his release from prison in 2014 had a stable home life.
The submissions note that BYMD believes he was warned about the possibility of visa cancellation, and contend that this weighs against the Applicant. However, it is also submitted that subsequent offending occurred while BYMD was very unwell mentally and that this ‘would have negated the impact of any deterrent effect intended by the possibility of visa cancellation’.
It is contended in further written submissions (RB7) that BYMD’s mental health was presumably a factor in the initial decision not to revoke BYMD’s visa. These submissions also note the observations of the sentencing magistrate that poor mental health at the time of offending lessened the Applicant’s moral culpability, and that the court considered BYMD a threat to the community only when non-compliant with medication.
It is also contended here that the terms of a Family Violence Intervention Order that expired in February 2021 did not prevent BYMD from seeing or otherwise communicating with M. In a final set of written submissions lodged for BYMD (RB7) reference is made to a written statement from Ms F (G2Z) in which she confirms that no physical violence occurred at the time an intervention order was in place.
The Respondent acknowledges in its written submissions that some of BYMD’s offending is objectively less serious, however contends that the sexual offending is extremely serious in nature. It is further contended that the overall cumulative effect of his offending should be considered very serious. The Respondent contends further that:
(a)in evidence at the hearing BYMD did not accept he had committed the offences against his housemate, and failed to take responsibility for them;
(b)his evidence in respect of the latest sexual assault demonstrated a lack of insight, and a tendency to deflect blame from his decision-making;
(c)the charge sheet for the incident with Ms F indicates that BYMD committed an act of violence against her and his denial in evidence is fundamentally incompatible with the conviction;
(d)BYMD has a conviction for resist police;
(e)the Applicant has received a range of court outcomes of increasing severity, was formally warned about the implications of offending for his visa status; and
(f)BYMD’s offending overall has been ‘serious and sustained’ and should be viewed at the upper end of seriousness and weigh heavily against revocation.
It is evident from BYMD’s offending history that he has been convicted of violent and sexual crimes against women, and acts that can be considered acts of family violence. I consider this offending must be viewed very seriously.
I accept there appears to have been some confusion in the mind of the original decision maker about certain offending, and that Ms F has stated in writing that BYMD was not violent with her. I note that Ms F appears to have given evidence to a similar effect in the prior Tribunal hearing, and that in this hearing BYMD denied violence but that Ms F declined to appear again.
Nonetheless, I must give proper weight to the fact of convictions, and there is a body of authoritative material that contradicts the positions put by BYMD and, previously by Ms F. In any event, the initial serious sexual offending and later sexual assault are of themselves adequate to base a finding that the Applicant has committed very serious offending.
I do not consider there to be a particular trend of increasing seriousness in BYMD’s criminal conduct. There have been two instances of offending of a sexual nature, but the Applicant does have a diverse criminal record over 15 years, and therefore some weight should be attributed to the cumulative effect of his offending.
The particular severity of sentences imposed for offending against women is not to be taken into account. Otherwise, I note above the range of court outcomes including fines and non-custodial sentences which suggest lower-level types of offending, or lower culpability, or both. I do not discount, however, the significance of custodial sentences, including the aggregate 12 months imposed in 2020.
I consider some limited weight should be given to the fact of prior notification of potential visa cancellation, but accept that BYMD’s disrupted lifestyle may well have had an impact on his capacity to focus on this issue.
Risk to the Australian community
I summarise briefly from a written statement submitted by BYMD prior to the decision not to revoke his visa (RB6) as follows:
(a)his situation at the time of his latest offending was influenced by depression arising from a break-up with Ms F, ceasing his medication and recommencing drug and alcohol use;
(b)when he is not experiencing symptoms of mental illness, BYMD deeply respects women, it appears his disorder can be treated effectively, but instability in his circumstances had made compliance difficult;
(c)doctors have explained his disorder to him which has helped him better understand his condition, and they have explained the early warning signs leading to relapse;
(d)‘it is essential for me to ensure that I very actively manage my mental health issues’;
(e)attendance at the Tambo unit benefited him, and helped continue the positive recovery started at Thomas Embling, he found attendance at a drug and alcohol service prior to 2010 also to be useful; and
(f)it is critical to BYMD’s health that he maintain his regime of HIV medication.
In a statement prepared prior to the original Tribunal hearing (RB12) BYMD also states, relevantly, that he commenced drug and alcohol counselling in immigration detention, refers to likely eligibility for psycho-social support services in the future, and specifies a list of practical steps forming a plan for the future.
BYMD provided an account of his history with mental health treatment. I understood him to say that he had been treated for mental health issues during most of his time in Australia. I also understood him to say that he had used prescription medication at least since his admission in 2003. His evidence indicated that a suburban medical practitioner had sought to find an appropriate medical regime, but BYMD was also not taking medication for some years and resumed medication when imprisoned.
The Applicant explained that his mental health condition fluctuated: ‘I get better, I get worse’. He also stated it had been a mistake to come off medication at times, that it did not help when he was on other substances, and that when ‘off track’ he is ‘not himself’. I put to BYMD the comments of the sentencing magistrate about his need for support, and the Applicant responded: ‘that is why I am asking for long term help’, by which he meant time in a residential facility. He stated he was concerned about returning straight to the community and worried about ‘freaking out’.
When asked about his commitment in the future to compliance with medication, BYMD stated that he gave a ‘100% guarantee’ he will look after his physical and mental health, that he would stay away from drugs and remain on prescription medication. This was for the sake of his own wellbeing, and that of his child. The Applicant named a suburban doctor who he had consulted in the past, but had not seen for some years, and was not sure how he might secure the long term help he identified.
At another point earlier in his evidence, BYMD was asked about participation in the Tambo program (RB3, 240-241), which he described as involving group work about social skills, and about coping in prison. He also acknowledged completing programs in mental health recovery and understanding substance abuse (RB3, 243-244). BYMD stated that he had also commenced a drug and alcohol course in immigration detention, but had not undertaken a course on domestic violence, and could not confirm whether he had completed any program related to sexual offending.
BYMD expressed his intention to obtain oral evidence from the Tambo Program Manager. He understood that post release support described in the Forensicare correspondence (RB3, 240) involved being housed in one of 3-4 units, sharing domestic tasks, shopping at a supermarket, and group discussions about offending. He added that he had been given a lot of information about how to obtain ongoing services and support in the community.
When asked further about accommodation if released, BYMD indicated he could stay with a cousin. However he also stated that his offending had been shameful for his family and he had not opened up communication on this subject. BYMD also stated he may be able to stay with friends of people he met in prison. When his evidence resumed on the second day of the hearing, BYMD then stated he had reflected on what accommodation may be appropriate. He indicated he had undertaken some online research, naming providers of housing services, stating that he had experience with them from periods of homelessness.
In evidence BYMD outlined his family relationships with a number of individuals, consistent with the names, ages and identities found in the G documents (Personal Circumstances Form, G2F). The Applicant recorded an older sister and brother-in-law, a cousin (also described elsewhere as a family friend), and two adult nephews. Material before me and evidence of BYMD at the hearing indicate that his sister has passed away. He stated that the family was close, and the information provided by the Applicant previously indicated regular family visits in company with M.
At the hearing, BYMD stated that he had no contact with family since 2019, and that they were not aware of his recent offending. I did not understand BYMD to identify any minor children, but information provided previously (G2F) suggests the nephews have children. BYMD also named a friend, who he also agreed he had assaulted in the past. When asked specifically, BYMD stated that he did not intend to call any of the identified individuals as witnesses. This was because he had been ‘in trouble for quite a long time’, that he was ashamed of his circumstances, and nothing motivated him to keep in touch with them. The Applicant stated he had a ‘very respectful family background’, and ‘this is not me’.
BYMD acknowledged he is a registered sex offender for life, and described reporting obligations comprising updating his contact details. It was put to BYMD that his offending history reveals that he has a problem with women. The Applicant denied this, citing his loving relationship with Ms F that had lasted since 2007-2008, whom he described as his ‘soul mate’. BYMD also stated that Ms F knows he is ‘beautiful inside’, but ‘she didn’t know how to deal with me’.
Upon the hearing resuming in February 2023, BYMD was unable to explain recorded instances of non-compliance with his regime of medication in 2021 and 2022 (R1). He stated that he always made sure to take his regular medication and that he finds it very helpful. He denied stating that he did not need medication shortly after transfer to immigration detention. In response to a record that he wanted to ‘come off injections’, BYMD replied that this probably referred to depot injections that ‘affected’ him and ‘destroyed’ his life, and that he lacked energy at this time.
Thereafter, on this occasion, BYMD explained in detail a ‘vision’ or ‘sort of nightmare’ that he experienced in 2019 which appeared from its contents to be a description of a psychotic episode. This anecdote then evolved into a description of a religious message or mission, leading to the hearing being adjourned, as outlined above.
The report of the psychiatrist referred to in sentencing remarks is dated in March 2010 (RB4, 427) and is described by the practitioner as arising from their second consultation. The previous consultation was approximately six months earlier in respect of other pending charges. The report is based on consultation of other reports from a drug and alcohol service, Gambler’s Help, a general practitioner (GP), clinical forensic medicine registrar, and the writer also consulted with a GP and prison authorities. I summarise briefly key observations concerning the Applicant:
(a)was previously in receipt of the Disability Support Pension in relation to mental health issues and reported no family history of mental health and no developmental issues personally;
(b)attempted but did not complete TAFE courses, and held several manual jobs for periods of 3-12 months;
(c)experienced chaotic personal circumstances after arrival in Australia and significant alcohol and substance misuse;
(d)had an initial diagnosis of schizophrenia later described in terms of anxiety, depression and substance misuse, and had been prescribed antidepressant medication by his GP;
(e)besides some feelings of anxiety and paranoias had no indication of other serious psychiatric symptoms at the time of the rape offending;
(f)since incarceration after the offending, had been identified as requiring antidepressant and antipsychotic medication, but was not considered acutely psychotic;
(g)experienced a five week admission for mental health treatment in 2003 followed up for several years and, in retrospect, the ‘likely diagnosis was major depressive episode with psychotic features through the role of substance abuse’; and
(h)presented with ‘clinically significant depressive symptoms in the context of his incarceration and impending sentence’ meeting the diagnostic criteria for depressive episode of mild to moderate severity.
The most recent professional assessment is that in the report lodged by the Respondent, dated in February 2023 (R2). The writer states that BYMD attributed his admission in early 2023 to an argument with a drug and alcohol worker in detention. Based upon the report of the Applicant, the writer queries whether BYMD may experience religiously inspired hallucinations. The report recommends no change to medication, which are said to include a mood stabiliser (valproate) and antipsychotic medication (quetiapine, risperidone).
The bundle of detention records (R1) does not appear to include a record of prescribed medication during immigration detention. Records indicate the administration of depot injections during BYMD’s prior prison term (at pp 14 and 64).

A Forensicare discharge summary dated in April 2021 (R1, 8-13), prior to BYMD’s transfer to immigration detention, notes a diagnosis in May 2020 of schizoaffective disorder, reduced adaptability and partial insight, and a history of three admissions in the context of substance abuse and non-compliance with medication. He presented on admission in 2019 with perceptual disturbances and grandiose beliefs and, prior to transfer to Thomas Embling, BYMD was manic and delusional, as well as non-compliant with anti-psychotic medication. Following this transfer he exhibited grandiose delusions and continued to express sexually inappropriate comments toward female staff. BYMD ‘had been travelling well’ in the Tambo unit but was later transferred out after increasing paranoia and anxiety and was then later returned to the unit. The report indicates the Applicant was receiving depot injection of his medication.
Correspondence from the Tambo Program Manager in March 2021 (G2S) explains that the unit is a psycho-social rehabilitation unit for men with chronic mental health conditions, and that it works with those whose symptoms are in remission. The unit would offer BYMD six weeks of post release support focussing on linkages to mental health services, advocacy and referral in relation to access to his son; supports applicable whether in the community or immigration detention. Subsequent correspondence dated in May 2021 (R1, 44) indicates that BYMD did not maintain contact with the unit and that they would be closing his case. However, it notes a provider of services available for up to two years post-release.
I note the following statements in the written statement of Ms F lodged in support of BYMD’s request for revocation (G2Z):
(a)the Applicant went to prison four months before the birth of M and their relationship resumed after his release, and for four years BYMD worked and managed with his mental health well;
(b)their child was diagnosed with Autism Spectrum Disorder and their life began to fall apart, although BYMD managed well on medication and then became full time carer;
(c)she returned to Australia from time in New Zealand in September 2019 and was worried about M, and argued with BYMD;
(d)on reflection she considered BYMD was unwell at this time, and while not fearing violence, ‘wanted to be sure that [M] was not emotionally hurt by [BYMD’s] erratic behaviour’;
(e)they have been in communication by phone since the expiration of the intervention order and ‘we have discussed his situation, his goals and future plans, and our hopes and plans for [M] in particular’ and they are the two people who can best help M;
(f)her plan is to complete qualifications and return to Australia with her son and resume their lives, it would be wonderful if M could be with his father again, and BYMD will have her ‘full support so that he can achieve the future he wants for himself’; and
(g)‘[w]e are both uncertain about how our personal relationship will develop if he is released, but I do deeply care for [BYMD] and will do my best to support him’.
Submissions and findings
Under this part of this consideration I 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 potential harm increases; some harm may be so serious that any risk of repetition may be unacceptable (8.1.2(1)). I must have regard cumulatively to (8.1.2(2)) the nature of any future harm and its likelihood, and evidence of rehabilitation.
BYMD’s written submissions (RB7) highlight what is described, consistent with BYMD’s statement, as a recent diagnosis of schizoaffective disorder (in Thomas Embling Hospital), and the Applicant’s appreciation for the nature of the condition and changed medication. It is contended that he had ‘improved and properly managed mental health, insight into his offending that this has allowed him to obtain, and his clear plan for ongoing rehabilitation …’.
Further written submissions (RB7) refer to BYMD’s participation in the Tambo program and contends the support and therapeutic programs offered likely to be better than rehabilitation the Applicant might have received in any parole period in the community. The submissions also point to the proposed post-release support. It is contended that BYMD’s risk to the community would significantly diminish, as proposed in earlier sentencing remarks. Accordingly it is submitted that BYMD presents a low risk of re-offending and this risk is so low as to be tolerable by the Australian community.
The Respondent submits that reoffending in the form of sexual assault or domestic violence would generate extraordinarily serious physical or psychological injury, and that the harm arising would be so serious as to be unacceptable.
It is further submitted that BYMD’s evidence with respect to compliance with medication was equivocal, and contained contradictions. It is contended that the Applicant acknowledged that he was required to take medication in detention, and that broadly the evidence repeatedly emphasises non-compliance, including in the recent past. It is further contended that the materials indicate that BYMD did not follow up supports with Tambo, and that he accepted in evidence in February that he had not in fact been in contact.
The Respondent also contends that BYMD’s presentation in the most recent video hearing was consistent with the descriptions of the manifestation of his mental health conditions which had led to admissions on previous occasions, and that he in fact had been admitted during the conduct of the hearing. It is submitted that this should cause the Tribunal ‘serious concern as to whether the Applicant’s psychiatric conditions are, in fact, under control such as to ameliorate the risk that he poses to the community’.
The Respondent submits that BYMD has denied much of his offending, and refuses to take responsibility for this most serious sexual offending. Therefore, the Tribunal should have no confidence in BYMD’s other evidence that he will not reoffend. The Respondent further submits that in consideration of risk under the Direction, there is no scope to consider diminished moral responsibility nor the impact of his condition upon insight into offending. It is contended that there is a significant risk of BYMD reoffending and that because of the harm that would be caused, this risk is unacceptable.
There is some variation in the formal diagnoses in respect of the Applicant’s mental health state. That is, when assessed on two occasions by a mental health professional (once when at court and once during the hearing), BYMD has been found to be in a stable mental state and indeed capable of representing himself. However, there is authoritative material indicating the diagnosis of both substance induced psychosis and schizoaffective disorder. He has been treated both voluntarily (by one or more GPs and various community-based services) and involuntarily (through unit transfer while incarcerated).
The evidence and material overall demonstrate however that BYMD has a very mixed history of engagement with mental health support and compliance with medication. I have limited evidence and material before me to explain BYMD’s admission for treatment during the hearing. However, the fact of this admission itself is, I consider, indicative of the fact that BYMD has a complex and challenging condition. Self-evidently, the condition continues to fluctuate and to have a substantial impact on his life.
The fact that there are two instances only of sexual offending in BYMD’s criminal history, the more severe of which was described in sentencing as involving physical contact at the lower end offending, does not in any way diminish the overall significance of his offending. This is so particularly given his lifetime registration as a sexual offender, as this specific court outcome reflects the assessment of longer term risk undertaken in sentencing. The fact of registration might be considered a factor likely to inhibit any future offending, and thereby reducing risk overall. Due to the absence of any specific evidence about the nature of the sexual offenders register it is difficult to make a conclusive finding about the possible impact BYMD’s registration might have on risk. I consider it reasonable to afford it some weight in this respect.
The submissions made for the Applicant previously must be read in the light of his ongoing issues with mental health. I do not discount the fact that BYMD has had periods in the past in which he appears on the evidence to have functioned effectively in society. I also do not entirely discount his own evidence as to insight into his condition and understanding of the importance of treatment. Despite this more positive evidence relevant to rehabilitation, I also note BYMD’s direct evidence about his offending which reflects, at best, ambivalence, and, at worst, a lack of genuine remorse.
I consider the sentencing remarks noted above to remain relevant. That is, there is in BYMD’s case a strong link demonstrated between the state of his mental health and his offending behaviour, and accordingly an increased importance to compliance with treatment and medication. In circumstances where there is evidence of ongoing mental health challenges, I consider it appropriate to find that there remains a high risk of reoffending of a similar kind to the serious offending in the past. This offending would carry serious consequences.
The evidence indicates that BYMD has undertaken some appropriate rehabilitation measures, although there is no direct evidence before me of any rehabilitation directly addressing sexual offending. The weight of submissions for the Applicant have been to the effect that his insight into his condition arising from engagement with treatment, such as in the Tambo unit, is itself a protective factor, and some weight should be given to this contention. I accept this proposition, broadly, but its impact is commensurately diminished by the ongoing mental health challenges BYMD experiences.
I accept that BYMD has articulated in different ways his wishes for a future after release. These desires, also, need to be understood in the context of his ongoing mental health issues, that is, they are clearly contingent upon his capacity to develop and maintain stability. BYMD’s life prospects are also highly contingent upon his capacity to engage effectively with diverse community services upon release. At this point it would appear he remains without direct means of support, and was unable or unwilling to call on witnesses to speak to this issue. I accept that BYMD has long experience of calling upon services and may be in a position to find some relevant and appropriate support, subject again to his general mental wellbeing.
Summary finding
It is contended in BYMD’s written submissions (RB7) that he represents an acceptable risk to the Australian community. The Respondent contends to the contrary that the risk is unacceptable, and that the consideration weighs strongly against revocation.
I do not accept the submission made for the Applicant at an earlier point in time that he is both a low and acceptable risk of reoffending because BYMD continues to experience disruption to this mental health. In any event, the evidence overall also demonstrates that he has a very inconsistent record with respect to gaining and maintaining adequate, stable mental health.
Accordingly, I find that this consideration weighs heavily against revocation.
Family violence committed by the non-citizen
This consideration reflects the Government’s serious concerns about conferring the privilege of remaining in Australia on those who commit family violence, proportionate to its seriousness (8.2(1)). The consideration is relevant where there is a conviction, and/or where there is authoritative information about the perpetration of such violence and procedural fairness has been afforded to the non-citizen (8.2(2)(a)-(b)).
The Direction defines family violence widely to include acts ranging from actual assault to forms of threatening or coercive behaviour (4(1)). The acts relate to a ‘family member’ and ‘member of the person’s family’ is itself defined to include a person ‘who has, or has had, an intimate personal relationship with the relevant person’.
Several factors are to be assessed in determining the seriousness of family violence, relevantly: its frequency; cumulative effect; and, rehabilitation achieved including acceptance of responsibility, understanding its impact, and efforts to address contributing factors (8.2(3)(a)-(c)).
I refer to and rely on here evidence and material set out above in respect of family violence.
As noted above, submissions have been made for BYMD that there has been an intervention order, but not prohibiting contact with protected parties. Submissions also contend that acts of violence between BYMD and Ms F are denied by both parties.
The Respondent submits that BYMD has been convicted of more than one incident of violence against a partner and that one instance at least (recklessly cause injury) is substantiated by a police report detailing a serious instance of family violence. It is contended that the Applicant denies any violence and that this demonstrates a lack of remorse and this consideration ought to weigh heavily against revocation.
I have already found that BYMD should be understood, on the material as a whole, to have been properly convicted of an act of violence toward his then partner. I accept the Respondent’s submission that ongoing denial of this conduct despite a conviction reflects negatively on the Applicant’s interests, otherwise family violence offending in this matter is of relatively limited scope.
Overall, I find this consideration weighs against revocation.
The strength, nature and duration of ties to Australia
There are several points of focus in this consideration. The Direction requires consideration, initially, of the impact of a decision on a non-citizen’s immediate family members (8.3(1)). It also requires consideration of ties to children, other family, and also social ties (8.3(2)-(3)). A common element is that ties must be to citizens, permanent residents, or those with a right to remain in Australia indefinitely.
Considerable weight should be given to the fact a non-citizen has been ‘ordinarily resident in Australia during and since their formative years’, regardless of when their offending commenced, or its level (8.3(4)(a)(i)). More weight is to be given to time spent contributing positively to the community during that time, and less where they were not resident from that time and began offending soon after arriving (8.3(4)(a)(ii)-(iii)).
BYMD stated in evidence that he had lived together with Ms F for some months, and that she was around three months’ pregnant when he went to prison in 2010. She visited him in prison while pregnant and he stated that she brought M to visit him when born. Following release, BYMD stated that he lived with his sister while on parole, and visited Ms F and his son every day for several months. The Applicant stated that he subsequently moved in with them and they lived together between 2015-2016 and 2019.
BYMD stated that Ms F returned to New Zealand because her mother was unwell. At this time the Applicant was the full-time carer for M, who was then aged about one. He agreed that it was possible they later separated around 2014. It was put to BYMD that he only ever lived with Ms F for a period of approximately 6 months, but he stated he was unable to remember.
BYMD expressed some uncertainty about the nationality of Ms F and his son, but accepted that Ms F had moved to New Zealand, stating that she had visited ‘a lot’. The Applicant acknowledged that M had been in school in New Zealand for several years, which he named. He understood that she was completing further studies and would return to Australia to obtain a ‘dream job’. BYMD was unable to state accurately how long these studies were expected to last, however he thought final exams were in January 2023.
BYMD also stated that their relationship had been affected by the details of his offending that arose in the original hearing, and that she has ‘sort of lost hope’. He explained this arose because he had read to her the details of the original Tribunal decision and Ms F did not consider BYMD would obtain a good result.
When the hearing first opened, BYMD indicated that he had been in touch with Ms F late in 2022 about the hearing. BYMD stated initially he expected that Ms F would give evidence, and that he had sent her copies of the previous decisions. He stated at the beginning of the second day of the hearing that neither Ms F nor M had been answering their phones. As indicated above, Ms F communicated to the Tribunal that she did not intend to participate.
It was put to BYMD that M had greater ties to New Zealand than Australia, to which the Applicant responded that his son had cousins here, being the children of M’s uncle. He confirmed that he had last spoken to Ms F about a month prior to the hearing, but that prior to this he would video chat with his son up to three times a day. BYMD acknowledged that records indicate that M made a short visit to Australia in late 2022. He stated that this was related to M’s uncle, that he asked Ms F to bring M to visit the Applicant in detention but she did not wish him to experience that environment.
It was specifically put to BYMD that Ms F appears to have decided to move on with her life. The Applicant responded that he did not think this was the case, and that they talk about everything and he wishes nothing but the best for her. He stated that they had in the past fallen apart and got back together. BYMD also stated that Ms F had done her best for him and it was now out of his hands.
BYMD stated that he had saved up money and sent $200 as a gift to M for his last birthday. The Applicant had otherwise not been in a position to contribute materially to M’s upbringing and living costs in New Zealand. BYMD considered that M missed his school mates from his time in Australia, and that he misses his father. He reiterated that he and M had spent ‘quality time’ together when BYMD cared for his son.
I also refer to and rely on here the material set out above with respect to BYMD’s family structure, and other friends and associates.
I note from the material lodged during the original revocation consideration by BYMD (G2F) that he lists several courses of study, but does not state a qualification level or type, and also lists several manual trades against broadly stated year dates.
I note from the movement history for M lodged by the Respondent the child is recorded as being granted visas classified TY-444 upon each arrival to Australia, this being a temporary entrant visa for New Zealand citizens.
It was previously submitted for BYMD (RB7) that he arrived in Australia as a teenager and has lived half his life here and that his offending did not commence until four years after arrival. In short, it is contended that all of the Applicant’s family ties are in Australia and that M is an Australian citizen. Reference is also made to BYMD’s period of employment, and ties to church and schools, when M was in schooling here. It is submitted that the effect of non-revocation on BYMD’s family would be ‘profound’, and that this consideration should be given considerable weight in favour of revocation.
The Respondent submits that the Applicant gave evidence that he had no contact with his family for several years, and very little weight can be attributed to the impact of this decision on them. It is further contended that there is limited evidence of any other ties to the Australian community and that his son is a resident in New Zealand. Finally, it is submitted that his period of residence in his formative years is not a material period of time and that his offending commenced shortly after arrival. Accordingly, it is contended that very little weight be afforded to this consideration in favour of revocation, and that it is outweighed by other primary considerations.

There is in this matter very little or no tangible evidence about the impact of a decision upon any of BYMD’s family or associates, including Ms F and their child. I accept, however that these individuals, including the latter two, have the right to reside in Australia indefinitely, and that it appears that BYMD only has relevant ties to such individuals. Otherwise, there is limited evidence of any substantial social or other ties.
I do not consider BYMD to have spent much if any of his formative years in Australia. Furthermore, in general, the evidence of the Applicant contributing positively to the Australian community is insubstantial. However, I accept that there is evidence of BYMD functioning in the community for a period of time, including when caring for M, and that he has spent a substantial period of his life here.
On balance, I consider that this consideration weighs in favour of revocation.
Best interests of minor children in Australia affected by the decision
The material before me demonstrates that BYMD’s child, M, is currently residing in New Zealand. Submissions made for BYMD previously contend that this child is an Australian citizen. The Respondent submits that should M be in Australia at the time of the Tribunal decision, weight in favour of revocation should be given to this consideration.
I am satisfied on the evidence overall that M is not presently resident in Australia, therefore I will consider the interests of BYMD’s child as an Other consideration under part 9 of the Direction, addressed further later in these reasons. This primary consideration weighs neutrally in respect of M.
I noted above references to children of BYMD’s nephews, but I have no more evidence or other material before me about these minors, including about the impact of any decision upon them. The submission previously made on BYMD’s behalf with respect to the preceding consideration makes reference to these children.
The Respondent submits that whilst BYMD may have had a positive relationship with minor nephews in the past, there is no evidence as to a supportive role presently. It is also contended contact has been interrupted due to the Applicant’s incarceration. Nonetheless, it is contended only very limited weight should be given to this consideration.
Due to the paucity of evidence, and the fact that I have no evidence of active family relationships more generally, I find this consideration weighs only very slightly in favour of revocation in respect of these other children.
Expectations of the Australian community
This consideration expresses two expectations in the Australian community: that non-citizens are expected to obey the law; and, that the Government will not allow a non-citizen to remain in Australia who has engaged in serious conduct in breach of the first expectation, or where there is an unacceptable risk they will do so (8.5(1)). The latter is stated normatively, and a decision-maker is not to assess community expectations independently (8.5(4)). Non-revocation may be appropriate because of the nature of character concerns arising from particular kinds of conduct including family violence, or serious crime against women (8.5(2)). The expectations in this consideration apply regardless of whether the non-citizen poses a measurable risk of causing physical harm (8.5(3)).
Submissions for BYMD highlight aspects of the decision in FYBR v Minister for Home Affairs [2019] FCAFC 185. Passages cited are those that address the appropriateness of non-revocation, and that hold that the character assessment may not be ‘decisively against the applicant’ ([102]). It is specifically contended that BYMD’s offending could not be said to be so ‘particularly egregious… that [it] alone will be sufficient’ to determine the outcome. Hence, it is submitted that the expectation of the Australian community could be informed by all the relevant facts about the Applicant which it is contended, ought to weigh heavily in any consideration.
The Respondent submits that given the nature of the Applicant’s offending, this deemed expectation applies, even more so since it has been contended BYMD presents a risk of continuing to offend. It is submitted this consideration should weigh heavily against revocation.
I accept the propositions raised by the Respondent. The particular nature of BYMD’s offending means that the expectation against revocation applies. I also consider it appropriate to find that this consideration weighs heavily against revocation due to the measurable risk of further offending.
OTHER CONSIDERATIONS
No written submissions were made on BYMD’s behalf in respect of the other considerations Impact on victims and Impact on Australian business interests, and I do not consider the material before me raises issues in respect of them. Accordingly, these considerations weigh neutrally.
Legal consequences of the decision
This consideration requires decision-makers to be mindful that the Act makes a non-citizen liable to removal from Australia as soon as reasonably practicable, whether or not a non-refoulement obligation exists, and are subject to detention in the meantime (9.1(1)). Non-refoulment is described as an obligation arising under one of several international human rights conventions not to return a person to a place where ‘they will be at risk of a specific type of harm’ (9.1(2)). The Direction states that the concept of ‘protection obligations’ in the Act reflects Australia’s understanding of the scope of this obligation.
In the case, as here, where there is no prior protection finding, a decision-maker must consider any claims that may give rise to non-refoulment obligations that are raised (9.1.2(1)). The Direction states that where it is open for the non-citizen to apply for a protection visa, it is not necessary to consider non-refoulement issues in the same level of detail as in such an application, and indeed a decision-maker is not required to determine whether the obligations are engaged (9.1.2(2)).
In his initial written statement (RB6), BYMD states Ethiopia is ‘war torn, and there is inter-tribal war’ and the ‘Oromo people are subject to severe persecution’ and expresses his fear of what would occur to him if he returned. BYMD states that he has no family in Ethiopia and no contacts. He states that the Oromo people are subject to persecution, which, along with discrimination and other problems he would face, means that he ‘would be overwhelmed and quickly end up in poverty’.
BYMD confirmed in evidence that he is a citizen of Ethiopia, and speaks English and Oromo. He also confirmed that he left the country when aged 15, and that he was accordingly familiar with the local culture. BYMD agreed that he grew up in a city in the Oromo state and lived for about one and a half years in Addis Ababa. He lived there with the cousin whom he later travelled to Australia with. He stated that he was not particularly familiar with the language and culture of the capital.
I sought further information about his earlier years and BYMD described acts of violence towards his father by another group of people. He stated his father had been involved in local politics and BYMD also referred to bombing over the family home. BYMD understood there to have been armed conflict in his home town.
BYMD stated that he wished to avoid conscription, and that his sister was already in Australia and she wrote to their father. After living in the capital, BYMD moved to Kenya where he lived for 18 months, experiencing ‘a lot’. The Applicant stated that his visa and flight to Australia was arranged by the Embassy in Nairobi.
If returned to Ethiopia, BYMD stated he would ‘not make it out of the airport’ and could not survive in Addis Ababa. He stated he is now a foreigner and would look and act differently. BYMD was pressed on his sources of information and stated that he had read a lot of articles and researched Ethiopia on YouTube and via Google. He stated that he did not know about the politics but heard about heavy fighting between tribes. BYMD stated that he understood an Oromo representative, ‘Dr Abiy’, was in power now but this ‘did not mean anything’.
BYMD stated that he has limited work experience in Australia due to his disability, stating he had been in receipt of a pension between 2003-2006/7. Therefore, he had no skills or experience to work in Ethiopia and was unable to speak the language of the capital, Amharic. The Applicant stated that he ‘hardly’ spoke Oromo, meaning that he could not read and understand it. He stated that he had spent most of his time with English speakers, including the younger members of his family in Australia.
In short, BYMD refuted the suggestion that he was in no danger in Ethiopia and this was the reason he left. When pressed on the specific conflict he had referred to in evidence, BYMD referred to a ‘tribal war’, and that there had been ‘all sorts of wars’ in the region. He also refuted that he had only recently created the story that he was at risk of conscription. BYMD agreed that he would face challenges with access to medication including for HIV.
Substantial written submissions are made (RB7) as to the existence of non-refoulement obligations in BYMD’s case. The following reasons are cited as founding claims:
(a)membership of particular social groups:
(i)people with mental illness in Ethiopia;
(ii)people with HIV in Ethiopia;
(iii)drug users in Ethiopia;
(iv)failed asylum seekers; and
(v)returnee from a Western country;
(b)BYMD’s actual and imputed political opinion on account of his Oromo ethnicity; and
(c)his race on account of this ethnicity.
A range of country information is cited in support, with the vast majority of the material cited dated to 2020, in summary:
(a)the rise of the Abiy government is described as prompting a rise in inter-ethnic tension and conflict, displacement of large numbers of people, and concern as to Ethiopia becoming ungovernable;
(b)there have been rights abuses in the Oromia region and of suspected members of its ethnically based armed groups;
(c)conflict with the Tigray region has emerged carrying a risk of civil war;
(d)there is a high degree of stigma and discrimination faced by sufferers of mental illness and this is recognised in the DFAT Country Information Report (2020) which also notes limited mental health services (costly in the capital and scarce in the regions);
(e)were BYMD to resume drug use he would face severe penalties and be at risk of abuse;
(f)there have been weaknesses for some time in Ethiopia’s capacity to treat people with HIV, and although coverage of antiretroviral therapy has improved in recent years, it is inconsistent across urban and rural locations and its cost may be prohibitive for BYMD; and
(g)data about some returnees to Ethiopia indicates reintegration can be challenging.
Finally, it is submitted that notwithstanding the relevant provisions in the Act concerning removal, it is likely that should the Applicant remain in Australia without a visa he faces the prospect of indefinite detention. Indefinite detention is said to carry serious implications for the mental health of detainees.
The Respondent submits that, consistent with the majority reasoning in Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17, the appropriate course is to defer consideration of non-refoulment obligations. Should the claims be assessed, it is contended that they ought to be given little weight given BYMD may apply for a protection visa, and they are outweighed by primary considerations. Accordingly any non-refoulment claims should be given minimal weight.
I accept that credible country information, including the DFAT material, place significant emphasis on the deterioration of, uncertainty with, and regional inconsistency in the security situation in Ethiopia. I note that DFAT have assessed Addis Ababa as particularly stable but that the regional situation is less certain, and that ethnic minorities face risk of violence ([2.59]). DFAT describe BYMD’s ethnic group, the Oromo, as the largest single ethnic group in Ethiopia, whose influence federally has expanded ([3.5]-[3.8]). DFAT also assess that tolerance for political dissent has increased ([3.41]). Contrary to the perspective advanced in BYMD’s submissions, DFAT also assess that failed asylum seekers face a low risk of harm on return ([5.38]). I accept that broader country information cited by the Applicant does suggest that there is a chance that he may face discrimination on either or both grounds of mental health, and his HIV status.
The Direction draws attention to the manner in which protection obligations are framed in the Act. In summary, protection obligations arise under s 36 of the Act in respect of a well-founded fear of persecution (where a person is considered a refugee) or there is a real risk they will suffer significant harm (under complementary protection provisions). These are quite specific and, I consider, relatively high thresholds of harm. Significant harm (s 36(2A)), for example can include arbitrary deprivation of life, the death penalty, being subject to torture and other cruel or degrading punishment.
The Applicant’s relatively general description of his claims is not unusual in matters of this type, and I accept that they have been given more thorough treatment in the written submissions. Among BYMD’s claims I consider the most credible, in the context of the evidence overall, appears to be fear of harm arising from his mental health condition and the consequences of being a person living with HIV. I accept the material indicates a strong possibility, potentially rising to a likelihood, that the Applicant might face stigmatising behaviour and discrimination were he to return to Ethiopia due to ongoing challenges with mental health and other medical treatment.
However, taking into account the way protection obligations are established in the Act, and considering the summary country information I have set out, I do not consider there is in fact sufficient specific and robust evidence before me to make a proper assessment of BYMD’s claims to non-refoulment obligations, given the relatively high standard established by the statutory test for the type and level of harm. This is because he spent much of his formative years in Ethiopia, and has at least some familiarity with the capital, outside of the time spent in his home town.
I consider that BYMD’s particular circumstances and past experiences accordingly warrant exploration in greater detail, in the manner that would be undertaken in a protection visa application. Accordingly, I consider the appropriate course is to defer the assessment of non-refoulement obligations.
In making this finding I am mindful that BYMD is likely to remain in detention during the period of any future claim for protection, and, otherwise, prior to removal from Australia as soon as reasonably practicable. I accept that it may well be that ongoing detention may have consequences for the state of his mental health, with potentially adverse consequences. For this reason, I find this consideration weighs in favour of revocation.
Extent of impediments if removed
I must consider the extent of any impediments that BYMD will face on return to Ethiopia in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country) (9.2(1)). I must take into account his age and health, any substantial language or cultural barriers, and any social, medical or economic support available.
Brief mention has been made only of BYMD’s HIV positive status and I note that material lodged by the Respondent substantiates this fact. I also refer to and rely on country information summarised above under this consideration.
The submissions made for the Applicant in respect of the previous consideration are stated to apply equally to this consideration. I note, further, that it is contended that BYMD has no family or other supports in Ethiopia. Specific consequences cited include possible return to drug use, difficulty accessing treatment for his HIV, and possible deterioration of his mental health.
The Respondent submits that BYMD is likely to suffer substantial hardship if returned. This is particularly so given his need for mental health treatment and access to anti-retroviral drugs. It is accepted that he does not have any significant family or social networks and may struggle to communicate given his present level of fluency in Oromo. The Respondent also contends that should the Tribunal accept that BYMD may face discrimination on the basis of his health conditions, this could impact his ability to access medical care.
I am satisfied that the evidence overall demonstrates that BYMD would indeed face substantial barriers to establishing himself in Ethiopia, even to a relevant local contextual standard of quality of life. I accept the evidence given about lack of family and social ties, and his language abilities. I have noted his limited vocational training and work experience in Australia. I consider that in the absence of reliable and supportive networks a person who left at a relatively young age would face large challenges.
These challenges are significantly compounded in the case of a person with a complex mental health condition, and who also has another demanding health condition to manage. BYMD may well face stigma and discrimination on account of his health conditions, which would add further impediments. Accordingly, I find this consideration weighs heavily in favour of revocation.
Relationship with child
As noted, I consider it appropriate to give further consideration to BYMD’s relationship with M, particularly as this was a substantive issue arising in the remittal decision.
I have noted in summaries of evidence above the close parenting relationship in the past between BYMD and M, in Australia. I note that movement records indicate that M was born in Australia and spent a substantial amount of time here until around the age of eight. Since late 2018, however, M has spent only approximately six months total in Australia, over several visits. I also set out the evidence at the hearing that M visited Australia late last year, but did not meet with the Applicant. BYMD also gave evidence of what appears to be a recent interruption, if not breakdown, in communication with both Ms F and his son.
Written submissions for BYMD address the best interests of minor children, and it is contended here that M is an Australian citizen by birth, by virtue of s 12(1)(a) of the Australian Citizenship Act 2007. In addition to emphasising the period of direct care provided by BYMD, submissions refer to the written statement of the Applicant which stresses the significance he places on M having a loving mother and father in his life. The submissions also acknowledge the intervention order that was in place at the time they were prepared.
Thereafter, the submissions cite international law concerning the rights of a child to know their parents, and measures required in case of separation. They also cite academic research concerning the importance of maintaining a balanced family grouping. In short, it is contended that the absence of BYMD would have a devastating impact on M’s life, and this should be given considerable weight in favour of revocation.
Several specific contentions are raised by the Respondent with respect to the nature of the relationship between BYMD and M:
(a)the child’s residence in New Zealand since late 2019 means there has not been an ‘in-person’ relationship since that time;
(b)M was named in a family violence intervention order;
(c)the relationship between M and BYMD has been interrupted by periods of incarceration;
(d)Ms F is the primary carer for the child in New Zealand;
(e)there is no evidence M intends to reside in Australia on a long-term basis; and
(f)the Evidence indicates M has been exposed to family violence.

I consider that BYMD’s written evidence in particular does not reflect the present state of the relationship as emerged from oral evidence at the hearing. I note also that the written statement from Ms F largely spoke to the value of cooperation between her and BYMD, but in any event she did not appear on this occasion to restate evidence given previously about likely return to Australia. I do take note of her statements concerning M’s health condition.
In fundamental respects, given the physical separation and the present limited communication, a non-revocation decision would not change the nature of BYMD’s relationship with M. The evidence is that M maintains active links with Australia, through the recent family visit. Apart from this I have limited evidence as to the actual nature of these or other links to Australia. I do accept that M may continue to visit and may make some other independent decision when aged 18.
I consider that I must give some due weight to the apparent strengths of their relationship as it appears on the evidence as a whole. It is likely that BYMD’s return to Ethiopia would have some emotional impact on M and may also place some additional impediments in the way of maintaining communication (accepting that direct evidence was not taken about how that eventuality might be handled).
I find therefore that some weight in favour of revocation should be afforded this other consideration.
CONCLUSION
When taking the relevant considerations into account, the Direction provides that primary considerations should generally be given greater weight than other considerations, and one or more primary considerations may outweigh other primary considerations (7(2)-(3)).
Of the primary considerations I have found that Protection of the Australian community; and Expectations of the Australian community weigh heavily against revocation. I have found that Family violence committed by the non-citizen weighs against revocation. I have also found that two primary considerations weigh in favour of revocation: Strength, nature and duration of ties; and Best interests of minor children (this latter consideration only to a limited degree).
Of the Other considerations, I have found that two weigh neutrally, as they did not bear upon the matter and contentions were not raised about their relevance. I have also found that the Other consideration, Legal consequences of the decision weighs in favour of revocation. I found that Extent of impediments if removed weighs heavily in favour of revocation. I also afforded some weight in favour of revocation to a further Other consideration, Relationship with child.
The principles established in the Direction provide the framework for approaching a decision and I summarise, relevantly:
(a)it is a fundamental part of this framework that there is an expectation non-citizens will not cause or threaten harm to individuals or the Australian community;
(b)conduct may be such as to raise serious character concerns regardless of whether they pose a measurable risk;
(c)a higher level of tolerance may be afforded a non-citizen who has lived in Australia most of their life; and
(d)in some circumstances, the nature of the harm that might be caused if the conduct were repeated may be so serious that even strong countervailing considerations may not justify revocation.
In circumstances where I have found that BYMD continues to experience fluctuation in his mental health condition in the detention environment where medical support is available, and where there have been previous findings linking his serious offending and the future risk of offending to his condition if untreated, I consider that I must prioritise the protection of the Australian community.
I have given appropriate consideration and weight to the impediments BYMD would face if returned, informed in particular by his mental and physical health needs. However, I find that those primary considerations that weigh against revocation of the mandatory cancellation decision should prevail in this instance.
For this reason I affirm the decision not to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
For the reasons given above the Tribunal affirms the decision under review.

I certify that the preceding 167 (one hundred and sixty -seven) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

....................[SGD]....................
Associate
Dated: 22 June 2023

Date(s) of hearing: 9-10 January, 14 February 2023

Date final submissions received: 16 March 2023

Applicant:

Advocate for the Respondent:

Self-represented

Mr Oliver Morris

Solicitors for the Respondent: Clayton Utz

[2023] AATA 1774

22 June 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Date(s) of hearing:	9-10 January, 14 February 2023
Date final submissions received:	16 March 2023
Applicant: Advocate for the Respondent:	Self-represented Mr Oliver Morris
Solicitors for the Respondent:	Clayton Utz