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

BYMD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3476 (21 September 2021)
Division:GENERAL DIVISION
File Number: 2021/4437
Re:BYMD
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member Rebecca Bellamy
Date of Decision: 21 September 2021
Date of Written Reasons: 29 September 2021
Place:Brisbane

The decision under review is affirmed.
...............................[sgd].........................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class BA Subclass 200 Refugee Visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – consideration of Australia’s international non-refoulement obligations– sexual offences – family violence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Ali v Minister [2018] FCA 650
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Greene v Assistant Minister [2018] FCA 919
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Home Affairs v Omar (2019) 272 FCR 589
STZS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1140
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)
Protocol Relating to the Status of Refugees, opened for signature 31 July 1967, 606 UNTS 267 (entered into force 4 October 1967)
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)
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, GA Res 44/128 (15 December 1989, entered into force 11 July 1991)
REASONS FOR DECISION
Member Rebecca Bellamy
29 September 2021

THE ISSUE BEFORE THE TRIBUNAL

The Applicant is a 39-year-old citizen of Ethiopia.[1] On 8 November 2000, when he was 18 years old, he moved to Australia, having been granted a Class BA Subclass 200 Refugee Visa (“the visa”).[2]
[1] There is some doubt about his year of birth, with it being recorded as 1982 and also as 1983. The more likely date seems to be 1982.
[2] Exhibit G1, Section 501 G-documents, G2, page 181.
On 10 September 2020 a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full time custodial sentence.[3] The Applicant subsequently made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[4] On 29 June 2021, the Respondent decided not to revoke the cancellation.[5]
[3] Exhibit G1, Section 501 G-documents, G2, pages 173 to 179.
[4] Exhibit G1, Section 501 G-documents, G2, pages 81 to 106.
[5] Exhibit G1, Section 501 G-documents, G2, page 13.
The Applicant lodged an application for review in this Tribunal on 5 July 2021.[6] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[6] Exhibit G1, Section 501 G-documents, G1, page 3 to 8.
The hearing of this application took place on 31 August 2021. The Applicant gave evidence via videoconference. He had made some written statements before the hearing with the assistance of others including a legal service. He adopted the contents of those statements in the hearing.[7] The Applicant’s partner “Ms F” gave evidence by videoconference. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
[7] Transcript, pages 8 to 17.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. If either of paragraphs (i) or (ii) are satisfied, I should revoke the original decision.[8]
[8] Minister for Home Affairs v Buadromo [2018] FCAFC 151.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 28 August 2020, the Applicant was sentenced to an aggregate term of 12 months imprisonment. Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) applies.[9]
[9] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of Part 2 of the Direction.
Those principles may be briefly stated as follows:
(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 measurable 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. However, 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.
(5)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 8.4(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 measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account. They are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. They are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests
I note that paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations, and paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.
BACKGROUND AND OFFENDING
The Applicant commenced offending in 2002 when he committed an unlawful assault against his then girlfriend. Police records[10] stated a verbal dispute arose over the fact the victim was possibly pregnant. The Applicant said, "fuck u bitch". She attempted leave the room, but he locked the door, threw her on the bed and kicked and punched her in the face and head. He then attempted to strangle her. He eventually released her from the room. The victim had visible facial injuries to left side of her face, a cut lip, markings on her neck and she complained of a lot of pain. The Applicant was arrested. On 25 March 2003 he was fined for unlawful assault.[11]
[10] Exhibit R4, Further Summonsed Material, SM3, page 209.
[11] Exhibit G1, Section 501 G-documents, G2, page 37.
In the hearing, the Applicant said he was living with his girlfriend at that time. He said he did not remember the incident but he probably pushed her.[12] I do not have the sentencing remarks or any evidence to confirm that the Applicant was sentenced on the basis of the facts included in the police report. However, the police record is contemporaneous, and it contains objective information, being observations made by the police about the victim’s injuries. Those observations are not consistent with the Applicant having merely pushed the victim. Throughout his oral evidence, the Applicant tended to deny the more serious aspects of offences of which he had been convicted. His tendency to do that, time and time again, undermined his credibility. With that in mind, I find the contemporaneous police evidence more reliable than the Applicant’s evidence given many years after the incident. I am satisfied that the Applicant assaulted his then de-facto partner in the way described by the police.
[12] Transcript, page 39, lines 29 to 44.
On 8 August 2003, the Applicant was found guilty of theft and attempt to commit indictable offence. The proceedings were adjourned for a period of 12 months upon the Applicant entering into a recognisance to be of good behaviour in the meantime with a special condition to seek and undergo psychiatric treatment.[13]
[13] Exhibit R2, Summonsed Material, SM2, page 89.
On 9 October 2003 the Applicant was found guilty of theft. He was required to pay compensation of $3474.02 and the proceedings were adjourned for a period of six months upon the Applicant entering into a recognisance to be of good behaviour in the meantime.[14]
[14] Exhibit G1, Section 501 G-documents, G2, page 37; Exhibit R2, Summonsed Material, SM2, page 89.
At some stage in 2003, the Applicant was admitted to the Alfred Hospital for around five weeks following a deterioration in his mental health. He was paranoid and delusional and was treated with a combination of antidepressant and antipsychotic medications. His substance misuse was identified as problematic. Between 2003 and 2006, he had regular contact with Community Mental Health Services and was treated with a range of medications.[15]
[15] Exhibit G1, Section 501 G-documents, G2, pages 44 and 45.
On 19 June 2004, while he was still under an obligation to be of good behaviour, the Applicant took car keys belonging to his housemate’s girlfriend and used them to drive her car. His housemate later located the Applicant driving the vehicle. While driving back to the residence the Applicant lost control of the vehicle and smashed it into a parked car. He admitted to taking the vehicle but told police he had permission.[16] In January 2005 the Applicant was convicted of theft of a motor vehicle, driving while disqualified (x 3), speeding, using a handheld phone while driving, and careless driving (x 2). He was also convicted of “exceeding PCA within three hours”, PCA referring to prescribed concentration of blood alcohol. He received an aggregate fine and was suspended from driving for 12 months.[17]
[16] Exhibit R4, Further Summonsed Material, SM3, page 206.
[17] Exhibit G1, Section 501 G-documents, G2, page 37; Exhibit R2, Further Summonsed Material, SM1, page 43.
In the hearing, the Applicant said he had consumed some alcohol, he lost control and he had an accident but he could not recall how he had lost control.[18]
[18] Transcript, page 60, lines 25 to 34.
On 21 April 2005 the Applicant was caught driving while his license was suspended. When police searched him, they found a four-inch pocket knife with a silver blade.
There was another incident much later in 2019 when the Applicant was also found in possession of a knife. Police notes indicate that on both occasions he was asked how he intended to use the knife, and he replied that it was to protect himself. In the hearing, he was asked what he was protecting himself from. He said, although he could not recall either occasion, he had the wrong friends who were trying to harm him, a lot of times over drugs or money. He denied that he would have used it to harm or threaten anyone and when pressed he was evasive, saying:
“I’m just saying if - if that were the case maybe I had some - someone after me. I was scared. That’s why I was scared enough to protect myself. It doesn’t mean I was going to use it.”[19]
[19] Transcript, page 59, line 42 to page 60, line 15.
I find it implausible that the Applicant carried a knife in the context of perceived danger from associates but he did not intend to use it even at a minimum to threaten people in self-defence. I am satisfied that the context in which the Applicant carried a knife was that he was prepared to use it in some way if he saw the need.
Less than a week after the unlicensed driving offence, in the early hours of 26 April 2005, the Applicant committed a robbery. The police facts[20] state that the Applicant had met the victim earlier in the evening at the casino. The victim had given him gaming chips and bought drinks before they went to the food court and the victim bought food for them both. The Applicant told the victim that he was homeless and had nowhere to go, so the victim invited him to his residence. As they were walking down the road the Applicant punched the victim to the head several times before throwing him to the ground and punching him in the chest. The Applicant took the victim’s mobile phone, wallet and cash and then fled the scene after a witness yelled out. The victim received a minor abrasion to his left ear and swelling/bruising to his right eye.
[20] Exhibit R4, Further Summonsed Material, SM1, page 203 and 204.
Later that day the Applicant was found in possession of a stolen mobile phone, although it is not apparent from the police records whether the phone was the one that the Applicant stole from the victim of the assault.[21]
[21] Exhibit R4, Further Summonsed Material, SM3, page 205.
In the hearing, the Applicant said he and the victim were most likely both drunk and they had an argument inside the casino and when they walked out, they both started to fight. He initially said he could not remember taking the phone or wallet. He then said he did remember taking the phone.[22]
[22] Transcript, page 38, lines 35 to 46.
On 28 March 2006 the Applicant was convicted of handle/receive/retain stolen goods, robbery and resist police. I find the contemporaneous police records to be more reliable than the Applicant’s evidence and I am satisfied that the Applicant’s attack on the victim was unprovoked.
The Applicant was sentenced to a community based order for 18 months which included an obligation to complete 100 hours of Community Service within six months.[23] He recalled completing the 100 hours of Community Service at the Salvation Army, catering and serving food to homeless people and washing dishes.[24]
[23] Exhibit G1, Section 501 G-documents, G2, page 37.
[24] Transcript, page 64, lines 10 to 26.
On 26 November 2007, the Applicant sexually assaulted his female housemate. He denied having done that and pleaded not guilty, but he was convicted by a jury of several sexual offences which I will address in more detail later in these reasons. He was granted bail.
On 27 November 2007 the Applicant was convicted of failing to comply with the community based order imposed on 28 March 2006. He was also convicted of the suspended driving and possess weapon from April 2005. He was fined and sentenced to one month imprisonment which was suspended for 12 months.
On 3 July 2008, the Applicant was convicted of two counts of obtaining a financial advantage. He was placed on another community-based order for 18 months. This order included special conditions that, under the supervision of a community corrections officer, he was to submit for drug testing, undergo assessment treatment or programs to reduce reoffending and any other orders as directed by a community corrections officer, and he was to pay reparation. In the hearing the Applicant said he could not recall having done any treatment or programs under this order.[25]
[25] Transcript, page 64, lines 27 to 34.
In late 2008, the Applicant met Ms F and formed a relationship with her.[26]
[26] Exhibit G1, Section 501 G-documents, G2, page 165.
On 5 October 2009, the Applicant was convicted of ‘recklessly cause injury criminal damage (intent damage/destroy)’ and fail to answer bail for which he was sentenced to another community based order for six months where he was required to perform 20 hours of community service. He was also convicted for driving while suspended and his period of suspension from driving was extended for 12 months.[27]
[27] Exhibit G1, Section 501 G-documents, G2, page 36.

In February 2010 the Applicant found guilty of two offences of rape and five offences of indecent assault arising from the sexual assault on 26 November 2007. He was sentenced in March 2010. In passing sentence,[28] the learned trial Judge summarised the offending as follows:
[28] Exhibit G1, Section 501 G-documents, G2, pages 38 to 48.
The circumstances of the offending were that the victim had moved into a share house in August of 2007. You moved into the house in late October of 2007. At that point there were four people living there, two males and two females. In the early hours of 26 November 2007 you were at the house alone. At approximately 12.30 a.m. the victim came home and started preparing for bed. There was no-one else in the house and you were aware of that. You knocked on her door and said that you were sick and wanted to go to hospital. She said on oath that she did not think that you looked unwell and said to wait until the morning. You apparently asked her if she wanted to have a drink. She thought you meant in the kitchen area, but it seems that you meant your bedroom. She said, "No" and went to bed and turned the light off. She was wearing a T-shirt and briefs. She said that some five to ten minutes later you knocked on her door and asked her and she said, "Yeah" and you came in. You sat down beside her and said you wanted to chat.
…
When you came into the room you started to have a chat with her. There is some variance as to the order of events, but essentially you asked her if she had a boyfriend and she said, "No". She had had a husband, but she was separated. You responded with, "So you're ready for me then?" She said that you were consistently saying, "Just relax". You shocked her. You just simply put your hand down her pants. She said, "Just my reaction was just more 'What the hell are you doing, or even why are you saying that to me'?" She said that you put your hands down her pants and started rubbing her vagina with your finger. She said she was sitting upright on her bed. Your finger clearly penetrated her vagina. That gives rise to Count 1.
She physically resisted by getting your hand and moving it away. She said, "You need to stop". I point out that over the next period of time she consistently said, "No" and to "Stop" and consistently physically resisted you in that way. Her evidence was that she knew that there was no-one home and that she did not know what you were capable of which is why there was no yelling and why there was not far more physical resistance. She said, "That that happened fast". After that, you took all your clothes off and jumped on top of her, trying to take her underwear off. She was physically pushing you away. She said "You took everything off''. She said that you were holding yourself up with one hand and with the other hand were trying to remove her underwear and "Trying to kiss me". That gives rise to Count 2.
She said that she was just physically trying to get you off and saying, "No, I don't". She said, "Like, all I remember is just a resistance and just wanting him off; saying, 'No, I'm not, I'm not doing this'. I was pushing him off'. You continually told her to relax.
At one stage you endeavoured to get your hands underneath her bottom whilst you were massaging her back. That gives rise to Count 6.
Again, she pushed your hands away. She described you putting your hands at one stage under her T-shirt and touching her breasts That gives rise to Count 3.
She described you lifting up her T-shirt and "He kissed my tits at that time". "He put his hands down my pants around that time". She said she was still in an upright position. The kissing gives rise to Count 7.
This had occurred after there had been some conversation. You then again put your hand down her pants and penetrated her vagina; giving rise to Count 4 of rape.
…Subsequently you when you were leaving and then finally desisted, and were dressed you lay on top of her with your clothes on and went into what she described as like a "little huddle". That gives rise to Count 9.
This obviously occurred over some period of time. You were obviously persistent …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".
The Applicant was sentenced to:
(a)four years imprisonment for rape;
(b)three years imprisonment for rape;
(c)six months imprisonment for each count of indecent assault (2 charges);
(d)three months imprisonment for indecent assault; and
(e)three months imprisonment for each count of indecent assault (2 charges).[29]
[29] Exhibit G1, Section 501 G-documents, G2, page 36.
The sentences were ordered to be served partly cumulatively so the total effective sentence was five years and seven months with a non-parole period of three years and eight months.[30]
[30] Exhibit G1, Section 501 G-documents, G2, page 48.
In passing sentence, His Honour made the following observations:[31]
“Rape is always a serious crime because rape has serious consequences. The consequences here for this young woman are serious, indeed. Objectively, the actual physical contact can be described at the lower end as I also have said. I take into account the consequences of what you did to this woman. It calls very much for the application of general and specific deterrence, denunciation, appropriate punishment and pursuant to s.6 public protection. A significant custodial sentence is inevitable. I then look at matters personal to you, to determine the length of that sentence.”
[31] Exhibit G1, Section 501 G-documents, G2, page 43.
His Honour took into account a report from a forensic psychiatrist and recounted some history that the Applicant had given the forensic psychiatrist that included that:
·he was born in Ethiopia in a largely Christian town;
·his family was apparently wealthy and attracted a degree of jealousy and discrimination (although in the hearing the Applicant said that was incorrect[32]);
[32] Transcript, page 23, lines 20 to 25.
·he initially moved to Addis Ababa where he spent a year avoiding authorities. (His Honour was told from the Bar table that this was done to avoid being conscripted);
·he left and went to Kenya;
·he had difficulties in Kenya, but ultimately immigrated to Australia at the age of 18;
·he had a cousin here prior to his arrival. He stayed with the cousin upon arrival, but problems with that cousin's relationship caused him to leave;
·he then had a number of jobs and was somewhat transient;
·he had not had, at any time, stable residential circumstances although that seemed to have been rectified with Ms F;
·in 2003 he was admitted to Hospital for around five weeks following a deterioration in his mental health. He was paranoid and delusional and was treated with a combination of antidepressant and antipsychotic medications. Initially a diagnosis of schizophrenia was entertained, but later that was discounted because once the medication was stopped, he did not return to delusions. His problems were then described as being in terms of anxiety, depression, and substance misuse;
·between 2003 and 2006 he had regular contact with Community Mental Health Services and was treated with a range of medications;
·he had chaotic personal circumstances in Australia and there was significant alcohol and cannabis misuse;
·he told the forensic psychiatrist that he was “an innocent person” and spoke of injustice in relation to the conviction;
·he had been on antidepressant medication in gaol, but was not considered acutely psychotic for transfer to the Acute Assessment Unit within the gaol system;
·his mental state would require ongoing monitoring; and
·he would remain at risk of clinically significant mental illness for the duration of the sentence.
The learned Judge took into account that gaol would be harder on the Applicant than the normal population because of his mental state which might deteriorate from time to time.
His Honour then said:[33]
“I have real concern with relating your condition to this offending. I have indicated to your counsel that if you were so unwell why were you persistently sexually assaulting this girl and requesting sex of her over an extended period of time? There has to be some linkage between the condition and the actual offending. In the end in fairness to you, I have taken the view that your emotional and psychological state at the time may have made it harder for you to make moral judgments and harder for you to understand the consequences of what you were doing. It may also have had the effect of not alerting you to the full significance of the distress that you were causing to your victim.
Insofar as general deterrents are concerned I therefore moderate them to some degree. Insofar as specific deterrents are concerned of real concern there is your lack of empathy and your denial of the offending. There must be a significant portion of this sentence devoted to making sure that you never do this to a woman again.”
(emphasis added)
[33] Exhibit G1, Section 501 G-documents, G2, page 46.
I have bolded the last eight words because, despite the learned Judge’s warning, the Applicant did sexually assault a woman again, and I will come to that in due course.
His Honour also took into account that the likelihood that the Applicant would be deported would cause him some anxiety and it meant that it was very unlikely that he would be able to serve any of his sentence in other than a high security prison. His Honour gave the Applicant “the benefit of the doubt” in relation to his prospects of rehabilitation, noting that he could do various rehabilitative courses in gaol.
In the hearing, the Applicant said he could not recall everything that happened that night as he was under the influence of alcohol and drugs. He said he pleaded not guilty because he could not recall what happened and people told him to.[34] However, the transcript of the police interview shows that the Applicant gave a version of events to the police, for example he said “I was ready to go to bed and she was ready to go to bed and I asked her sex, because I’m a man”.[35] He also gave evidence in his trial.[36] I do not accept that he did not recall his offending. It follows that I do not accept that he pleaded not guilty in whole or in part because he could not recall the offending. I find that he pleaded not guilty, knowing what he had done to the victim, and that this demonstrates a lack of empathy for the victim who had to relive her ordeal by giving evidence about it some two years later and who was subject to cross examination.[37]
[34] Transcript, page 32, line 26 to page 33, line 20.
[35] Exhibit R2, Summonsed Material, SM2, page 107.
[36] Exhibit G1, Section 501 G-documents, G2, page 39.
[37] Exhibit G1, Section 501 G-documents, G2, page 40.
The Applicant did not complete any rehabilitative courses in gaol, although he thinks he might have started but not finished a sex offender course.[38]
[38] Transcript, page 37, lines 24 to 32.
On 21 April 2010, the Applicant was convicted of intentionally damage property and was fined.[39]
[39] Exhibit G1, Section 501 G-documents, G2, page 36.
In September 2010, Ms F gave birth to the Applicant’s son, “Child A”.[40]
[40] Exhibit G1, Section 501 G-documents, G2, page 97.
In a letter dated 10 September 2012, the Department of Immigration and Citizenship notified the Applicant of its intention to consider cancelling his visa under subsection 501(2) of the Act.[41] The Applicant acknowledged the receipt of that letter in a document that he signed on 15 September 2012.[42]
[41] Exhibit G1, Section 501 G-documents, G2, pages 182 to 186.
[42] Exhibit G1, Section 501 G-documents, G2, page 187.
In a letter dated 16 July 2013, the Applicant was advised of a decision not to cancel his visa. That letter included the warning
“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.”[43]
(emphasis in original)
[43] Exhibit G1, Section 501 G-documents, G2, pages 188 to 189.
On 19 July 2013, the Applicant confirmed in writing the receipt of that letter.[44]
[44] Exhibit G1, Section 501 G-documents, G2, page 190.
In the hearing, the Applicant said that he recalled that the Department was considering cancelling his visa because of his offending[45] but he claimed he did not read the warning or realise that if he committed more offences his visa could be cancelled. Upon further questioning, he said he realised it was a warning at the time but he forgot about it until he went back to prison a second time.[46] I find it implausible that the Applicant did not realise, when he received that letter, that further offending could result in visa cancellation or that he forgot about that fact. I am satisfied that from 19 July 2013 onwards, the Applicant knew that further offending could result in his visa being cancelled.
[45] Transcript, page 14, lines 20 to 39.
[46] Transcript, page 15, line 42 to page 16, line 32.
According to Ms F, after the Applicant was released from prison their relationship resumed and for four years he was working and his mental health issues were being managed well.[47] However, Child A was diagnosed with autism around the age of two and when he was six or seven the Applicant found his behaviour extremely stressful and his life started to fall apart.[48] The Applicant started taking his “mental health medication” again and “managed it well”.[49]
[47] Exhibit G1, Section 501 G-documents, G2, page 213, paragraph 8.
[48] Exhibit G1, Section 501 G-documents, G2, page 213, paragraph 9; Transcript, page 73, lines 12 to 13.
[49] Exhibit G1, Section 501 G-documents, G2, page 213, paragraph 9.
According to police records, on the evening of 20 December 2017 the Applicant was eating dinner around 11.00pm. Ms F’s nephew was there and he made fun of how late the Applicant was having his dinner. The Applicant got angry with him and when Ms F told him to calm down, he became enraged and started a verbal argument with her. He then picked up a kitchen knife from the bench and threatened her with it before throwing it down. He left and was apprehended by the police. Ms F and the Applicant had an expired intervention order at the time.[50] There is no other evidence about this apparent order in the material before me.
[50] Exhibit R4, Further Summonsed Material, SM3, page 194.
In the hearing, the Applicant said Ms F’s nephew was around 20 years old at the time and he denied having threatened Ms F with a knife.[51] Ms F gave evidence that the Applicant was not holding a knife and he did not become enraged or threaten her with a knife. She said there was a knife on the bench which the Applicant had thrown down because he was eating his meal. When asked if she could explain why the police version was that he picked up a knife from the bench, not from his plate, and threatened her with it, she said it may be that the statement had been misconstrued and suggested she might not have been thinking straight when she spoke with the police.[52] Ms F said she could not recall any intervention orders before 2019.[53]
[51] Transcript, page 46, lines 34 to 39.
[52] Transcript, page 75, lines 31 to 47.
[53] Transcript, page 76, lines 11 and 12.
If the versions given by the Applicant and Ms F in the hearing are correct, it raises the following questions: why were the police called, why did the police record that the Applicant became enraged and threaten Ms F with a knife, and why do the police records make no mention of any of the three adults who were present giving an account consistent with the account given by the Applicant and Ms F in the hearing?
Further, the Applicant was convicted of unlawful assault on 17 August 2018 (and he received fines)[54] and although it is not clear from his criminal history that this related to the incident on 20 December 2017, it appears that it did as there are no other police records of any alleged assaults in the years prior to the conviction. I prefer the police records to the evidence of the Applicant and Ms F and I find that he committed unlawful assault in the way described in the police records.
[54] Exhibit G1, Section 501 G-documents, G2, page 37.
In 2018, Ms F and Child A started spending large blocks of time in New Zealand. Ms F helped look after her ill mother there.[55]
[55] Transcript, page 73, lines 21 to 29.
Movement records relating to Child A[56] indicate that:
·he left Australia on 17 February 2018 and returned on 25 September 2018;
·he left again on 4 October 2018 and returned on 9 April 2019; and
·he left again on 13 October 2019 and has not returned.[57]
[56] Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions, Annexure A.
[57] Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions, Annexure A.
It appears that between April and October 2019, Child A was being cared for by the Applicant in Australia while Ms F was in New Zealand. Ms F said that looking after Child A by himself became stressful for the Applicant and she would visit periodically. She said when she came back to Melbourne in September 2019[58] she was worried about Child A and this led to heated arguments with the Applicant.[59]
[58] Ms F appeared to mean October 2019.
[59] Exhibit G1, Section 501 G-documents, G2, pages 213 to 214, paragraph 10.
On 10 October 2019, Ms F reported some incidents of family violence to the police. The police incident report[60] stated that Ms F told the police that she had been in a relationship with the Applicant for 11 years. For the duration of their relationship the Applicant had used controlling behaviours over her resulting in her and Child A moving back to New Zealand in February 2018. She also said there had been previous orders between the Applicant and her for these issues but there were no current orders in place. Ms F said she kept in touch with the Applicant for the benefit of Child A, and in April 2019 they agreed that Child A would move back to Melbourne to live with the Applicant while Ms F stayed in New Zealand. She was regularly visiting every two months.
[60] Exhibit R4, Further Summonsed Material, SM3, pages 191 and 192; Exhibit R2, Summonsed Material, SM1, page 36.
Ms F told the police that on 7 October 2019 she arrived in Melbourne to visit the Applicant and Child A. On 9 October 2019 the Applicant and Ms F had a verbal argument and the Applicant became aggressive and pushed Ms F. Child A tried to intervene.
On 10 October 2019, Ms F put Child A to bed, and she and the Applicant subsequently had an argument over the Applicant taking Child A’s passport and birth certificate out of Ms F’s handbag and hiding them from her. Ms F called the Applicant a "loser". The Applicant then pushed her, and she bounced off a wall and fell to the floor. He then punched her in the face which caused her to suffer from a minor abrasion on the bridge of her nose and under her left eye. While she was still on the ground the Applicant continually kicked her to the point where she believed it would not stop. She begged him to stop and eventually he did. He handed her a tissue and told her to go and clean herself up. Earlier that day, the Applicant had also put his hands around Ms F’s throat in an escalation of an argument. Ms F took Child A and informed the Applicant that they were both going back to New Zealand. The Applicant followed Ms F to her car and handed over Child A’s passport and birth certificate. Straight after the incident Ms F went to the police and reported the incident. The police served the Applicant with a Family Violence Safety Notice.[61]
[61] Exhibit R4, Summonsed Material, SM3, pages 191 and 192.

On 13 October 2019, Ms F and Child A travelled to New Zealand and they remain there.[62]
[62] Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions, Annexure A.
On the 22 October 2019, the Applicant attended the police station for further questioning about the incident. He admitted to pushing Ms F. However, he said:
"I did not cause this, she caused it to herself cause she was demanding to get what she wanted. She was about to head butt me or something, that's how close she was to me. Then I pushed her away and she hit herself. She hit herself against something. She did fall when I pushed her, yes I do recall that".[63]
[63] Exhibit R2, Summonsed Material, SM1, page 37.
The Applicant denied having assaulted or kicked Ms F. He was then arrested and searched. The police found a folding knife in his backpack. He said he used it “for protection". He was charged released on bail.[64] The conditions on the bail undertaking prohibited him from contacting Ms F or Child A.
[64] Exhibit R2, Summonsed Material, SM1, page 28.
In the hearing, the Applicant gave an account that differed from the police account. He said Ms F asked him for the passport after he gone to bed, and he said he would give it to her in the morning, but she wanted it right away, so they had a heated argument. He gave her the passport and birth certificate and went back to bed. She then started packing her bags and putting them in the car. It was dark and she fell on the stairs and hurt herself. He was unaware of that because she left that night with Child A and she went to the police and made a false allegation.[65]
[65] Transcript, page 43, lines 8 to 18.
When the Applicant was asked why Ms F had made a false allegation, he said she was scared she would lose him and “lack of security”.[66] He later said he kept in contact with Ms F and she told him she had fallen down the stairs or bumped into her car, and that she had made the false allegation because she thought he was going to break up with her and she was very disappointed.[67] This differs from the evidence that Ms F subsequently gave which was that she did not have contact with the Applicant after this incident.
[66] Transcript, page 43, lines 20 to 21.
[67] Transcript, page 43, lines 23 to 40.
The Applicant denied ever having put his hand on any woman.[68] It was put to the Applicant that after the incident he told the police that he pushed Ms F away and she hit herself against something, which was different from the oral evidence he had given. He then admitted that he had pushed her, and he agreed that she had hit her head on the wall.[69]
[68] Transcript, page 44, lines 1 to 4.
[69] Transcript, page 44, lines 6 to 38.
In May 2021, Ms F gave a written statement in which she said there was no violence, only an argument. When asked about the incident in the hearing, she said the Applicant pushed her, and that Child A had tried to interfere, but denied that there had been physical violence. She said because of her insecurity, and her belief that she and the Applicant should not be separated for any reason, she falsely accused the Applicant of physical violence. She said the incidents on 9 and 10 October 2019 were in fact the same incident and she did not know why they were recorded as separate incidents in the police records.[70] In relation to the Applicant pushing her, she said she may have been trying to get outside and the Applicant was trying to push her away from the door but it was not a hard push and she was not injured.[71] She said her injuries were caused when she ran to her car and accidentally fell, smashing her glasses, which injured her face.[72]
[70] Transcript, page 76, lines 22 to 46.
[71] Transcript, page 84, lines 25 to 30
[72] Transcript, page 84, lines 8 to 18.
I find it implausible that Ms F made false allegations against the Applicant because she did not want to be separated from him. By her own choice, she had been living apart from him for the most part of the last 18 months and she was planning to leave before they argued. In her statement,[73] she said that after that incident she and the Applicant “separated” at that time, and she went on to explain that she did not want Child A to be emotionally hurt by the Applicant’s erratic behaviour, Child A needed stability and “we needed space”.[74]
[73] Exhibit G1, Section 501 G-documents, G2, pages 213 to 215.
[74] Exhibit G1, Section 501 G-documents, G2, page 214, paragraph 12.
Further, her explanation of why she made the apparently false allegation is questionable. She said:
“I am highly embarrassed but unfortunately our family was very important to me and, you know, I just wanted to make things difficult for [the Applicant] which is not the right thing to do”[75]
[75] Transcript, page 77, lines 13 to 15.
It seems perverse that Ms F thought that making things difficult for the Applicant would dissuade him from ending whatever connection they had at that time.
When Ms F their communication ceased after that incident and they had only been in communication “just of late”. She said there might have been a seven-day incarceration, but she was not sure if it was related to that incident. She had not sought to contact the police and tell them the truth.[76]
[76] Transcript, page 77, lines 44 to 46.
The Applicant was indeed convicted of offences arising from this incident, being recklessly cause injury and possess offensive weapon (on 13 December 2019). For those offences and a subsequent offence of failing to answer bail, he served seven days in gaol.
Ms F was asked about her report to the police that she had gone to New Zealand because of the Applicant’s controlling behaviour. She resiled a great deal from that report, confining it to a short time frame rather than the duration of the relationship[77] and being very vague about how the Applicant was controlling. She said she and the Applicant were not getting along and not agreeing on things. She eventually said the controlling behaviour related to what “we were doing and where we were”.[78] When asked for an example she said if she came home between shifts the Applicant had an issue with it.[79] I think Ms F deliberately sought to water down the evidence of controlling behaviour to assist the Applicant’s case. However, there is not sufficient detail in the police records or any other material to support a finding of controlling behaviour.
[77] Transcript, page 75, lines 1 to 5.
[78] Transcript, page 74, lines 9 and 10.
[79] Transcript, page 73, line 32 page to 74, line 33.
When Ms F was asked why she and Child A returned to New Zealand so quickly after she arrived on 7 October 2019, she said it was because of her mother’s condition and she thought that having time apart from the Applicant would benefit her, Child A and the Applicant.[80] Ms F said that after leaving, she never tried to call the Applicant.[81] When asked if she had wanted there to be some kind of communication between the Applicant and Child A she said yes but it was not within her control because she had not heard from the Applicant. She conceded however that she did not try to contact him. She then claimed that she tried to call his number a few times but it was not in-service.[82] She then admitted that the Applicant had tried to call her in February 2020 but she did not return his call. When asked why she said:
“because of my own life expectations that I have. Like, my own things that I have going in my life at the moment. So study. I have commitments here as well at this point.”[83]
[80] Transcript, page 80, lines 18 to 38.
[81] Transcript, page 80, lines 39 to 45.
[82] Transcript, page 81, lines 1 to 22.
[83] Transcript, page 81, lines 31 to 33.
In a written statement, the Applicant said when Ms F came back from New Zealand things were different and they did not get along. They had an argument and broke up. Ms F took out an intervention order so he has not seen her or Child A since then.[84]
[84] Exhibit A2, Statement of the Applicant dated 23 December 2020, paragraph 19.
The intervention order was a family violence final intervention order that was made on 18 February 2020 protecting Ms F and Child A.[85] The order prohibited the Applicant from committing domestic violence, but not from contacting Ms F or Child A, and it was to expire on 17 February 2021. According to Ms F’s written statement, communication only resumed between her and the Applicant after the expiration of this order.[86] The fact that Ms F made little or no effort to contact the Applicant between the incident in October 2019 and sometime after 17 February 2021 is another thing that belies her claim that she did not want to break up with the Applicant in October 2019.
[85] Exhibit G1, Section 501 G-documents, G2, page 200.
[86] Exhibit G1, Section 501 G-documents, G2, page 214.
The timing of the intervention order coincides with the Applicant’s failed attempt to contact Ms F but not with the attack on her, which could suggest that the Applicant’s attempt to contact her prompted the making of the order. In the hearing, Ms F was asked why the intervention order had been made and she said she thought it was because of the “events of that night of October 2019”. She said she was not sure if it was her who applied for the order and could not recall how it came about, however I find it implausible that she could not recall that kind of detail. When Ms F was reminded that she had given evidence that none of the reported violence had actually happened and asked why she was getting a family violence order a few months later, she said “I’m not sure why it was happening a few months later. I really don’t know but that was as I understood, a follow-on from the events of my statement”.[87]
[87] Transcript, page 81, line 35 to page 82, line 2.
I asked Ms F if she told anyone, at the point when the intervention order was being made, that the allegations were not true. She said she told family members.[88] It is apparent that she did not tell the police or the court. The following exchange then occurred:
Tribunal: “But what I’m saying is, a court has made an intervention order that didn’t just prohibit – that doesn’t just mention you, it mentions your son. Look, and it didn’t stop contact but you’ve – it sounds like you’ve allowed that to happen, you allowed that to happen on the basis of allegations that you now say were not true?
Ms F:So I understand that it is quite serious, an intervention order and of course my statements as well. I don’t know how to rectify that as this point. I don’t know if the intervention is in place still. Yes, I don’t know - - -
Tribunal:It doesn’t make much sense to me that you’ve made those accusations and you said, you know, because you were feeling insecure at the time but that was in October and now we’re in February…
Ms F:I’m not sure what – I’m sorry.
Tribunal:Go ahead.
Ms F:I’m not sure why that intervention came through in February. I really don’t know why.[89]
[88] Transcript, page 82, lines 6 to 9.
[89] Transcript, page 82, lines 11 to 26.
I found Ms F’s efforts to explain why the intervention order was made if the violence did not happen, and why she failed to withdraw her allegations, utterly unconvincing. Indeed, I found all her efforts to exculpate the Applicant unconvincing. I consider the contemporaneous police evidence and ultimate conviction to be more reliable than the evidence of the Applicant and Ms F in relation to the events on 9 and 10 October 2019 and I am satisfied that the Applicant committed the acts of violence described in those records. Although Ms F denied this when it was put to her,[90] I find that she gave false evidence to the Tribunal in an effort to assist the Applicant’s case. This is a significant finding as I do not consider her to be a witness of credit, meaning I cannot rely on her evidence.
[90] Transcript, page 84, lines 36 to 38.
According to the Applicant, the breakup with Ms F and the intervention order made him feel ashamed and he was homeless. He stopped taking his medication and his schizophrenia and paranoia were out of control. He started abusing drugs and alcohol again and started spending time with “the wrong crowd”.[91] In another account he said being homeless led him to mix with “the wrong type of people” and he started to use drugs which affected his mental state. He then abused drugs further which led to his offending.[92]
[91] Exhibit A2, Statement of the Applicant dated 23 December 2020, paragraph 20.
[92] Exhibit G1, Section 501 G-documents, G2, page 102.
On 24 April 2020 the Applicant committed a sexual assault against a young female victim. The police incident report[93] stated that at around 9.45pm the Applicant approached the victim outside the front door to her apartment. He got into her personal space and tried to put his arms around her and kiss her. He tried to get into the apartment and told her he lived there. The victim began pushing the Applicant back and told him multiple times that it was not his apartment and that he needed to leave. He left and walked out to the footpath. The victim entered her apartment. She then heard her neighbour’s door open. She opened her door and observed the Applicant trying to open the door to her neighbour’s apartment. She told him to leave and he again tried to put his arms around her and kiss her. She walked him to the staircase, and he started to walk down the stairs, but he reached out with an open hand and grabbed the victim touching her vagina area through her clothes. She yelled at him and said she was going to call the police, and he left.
[93] Exhibit R4, Further Summonsed Material, SM3, pages 188 and 189.
On 28 August 2020 the Applicant was convicted of contravening a conduct condition of bail and sexual assault. He was sentenced to 12 months imprisonment for each offence, to be served concurrently.
In the course of the sentencing proceedings, the learned Magistrate said the following, which is relevant to the matters I must consider in Primary Consideration 1:
“[The Applicant] appears to me to be a person of fairly significant risk to the community because although now he says, “Look, I know what the illness is. It has finally been diagnosed and I am going to remain abstinent and get treatment so that I can see my son,” but he has had obvious mental illness in the past for a long time now.
Medication has been prescribed. He hasn’t necessarily been compliant with that and over the years at various stages, he has on and off used drugs to the point that his mental illness has been exacerbated and perhaps when he has been using methylamphetamine, if may have even induced a drug-induced psychosis.
We can’t be certain about that because you can’t make a judgment in hindsight about what was done and what happened quite a while ago. His behaviour has been, on the material side, the sexualised behaviour has been repeated for some time. My concern is that if he is released from custody without a good deal of supervision and some support, then when he comes to a moment of stress, it may well be he resorts back to gambling, alcohol and drugs and unfortunately if that were to occur, given what has happened to date, it would be inevitable that he would commit a further offence.
So I have to certainly have regard to the fact that he was mentally ill at the time the offences were committed and that lessens his personal moral culpability, if you like, because when you do something when you’re mentally ill, you don’t really have control so much over your actions and behaviours, but at the same time, the other side of the point is I must protect the public as far as I can within the parameters that this particular offence allows me to sentence on.”[94]
[94] Exhibit G1, Section 501 G-documents, G2, pages 59 and 60.
The learned Magistrate’s remarks, when passing sentence, included the following:
“You have pleaded guilty to a charge of sexual assault which is grabbing a young woman on the vagina over her clothing, and two charges of contravening a conduct condition of bail, one of them specifically being staying within a certain distance of this woman’s accommodation.
…You were mentally ill at the time that this offence occurred. You were floridly mentally ill and Dr McInerney has indicated that that mental illness has had a direct impact on your judgment and your ability to control yourself and therefore you are not as much morally responsible for the offence as somebody else who did it just because, you know they felt like doing it, so I take that into account and that goes in your favour.
However, I think what I can say from the materials that I have seen and from your past is that when you use drugs and alcohol, it’s really bad for your mental health. You have been diagnosed in the past as having mental illness that has been drug-induced and you have had without drug-inducement, you have had other psychosis in the past. They have finally been able to put a label on it and the doctors are confident, Dr McInerney is confident, that if you get treated and you stay off alcohol and drugs, then you hopefully can lead a pretty good life….
The problem at the moment is you don’t have accommodation and when you don’t have anywhere to live, while living rough, while living couch surfing and doing things like that, the dangers of you lapsing into drug or alcohol use, I think is somewhat greater, so I think you are going to need fairly significant structure on your release and I think they will have to be fairly closely monitored…”[95]
[95] Exhibit G1, Section 501 G-documents, G2, pages 69 and 70.
The Applicant claimed that the touch to the victim’s vagina was accidental.[96] I find that implausible, and an accidental touch on a sexual area it is not consistent with the conviction for sexual assault. I reject it.
[96] Transcript, page 36, lines 20 to 24.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following relevant matters:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)…;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)…;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).

In 2002, the Applicant violently attacked a de facto partner who he thought might have been pregnant. His attack on her involved kicking, punching and an attempt to strangle her. In 2005, he attacked and robbed a person who had offered him a bed for the night. He continued to punch the victim while he was on the ground. The Applicant threatened Ms F (his de facto partner at the time) with a knife in 2017, and he violently attacked her in 2019. The latter assault involved kicking and punching, and he had earlier tried to choke her. This conduct is viewed very seriously.
The Applicant raped and sexually assaulted a female housemate in 2007 and he sexually assaulted a woman in 2020. These crimes are also viewed very seriously.
The Applicant’s crimes against his former partner, his former housemate and Ms F each involved breaches of trust as he lived with each victim at the time and he attacked them in their respective homes which should have been places of safety.
The Applicant claimed that his mental health and drug and alcohol consumption contributed to the sexual offences against his former housemate. As the learned Judge who presided over the trial for those offences pointed out, the specific linkage between the Applicant’s condition and his offending was not apparent. His Honour posed the rhetorical question “if you were so unwell why were you persistently sexually assaulting this girl and requesting sex of her over an extended period of time?”. He also observed that the conclusion that the Applicant committed the offences because he felt entitled to was almost irresistible. I also note that, while the Applicant told the victim that he was sick and needed to go to hospital, she did not believe him based on her observation of him. The learned Judge took the view that the Applicant’s emotional and psychological state may have made it harder for him to make moral judgments, to understand the consequences of what he was doing, and also appreciate the full significance of the distress that he was causing the victim. It is uncontroversial that lowered inhibitions and impaired judgment are common effects of substance abuse. I am not persuaded on the evidence that mental health factors played a pivotal role in the Applicant’s offending and thus that his culpability is somehow mitigated.
In relation to the sexual assault in 2020, the learned Magistrate accepted that the Applicant’s florid mental illness impaired his judgement and ability to control himself. However, His Honour also noted that drugs and alcohol have historically been bad for the Applicant’s mental health. The fact that the Applicant chose to abuse drugs and alcohol in circumstances where he knew that substance abuse was detrimental to his mental health, and the fact that he had blamed previous offending on his mental health, limits how much his poor mental health mitigates the offending.
The Applicant has committed multiple dishonesty offences, has been caught carrying a knife on two occasions, and he stole a car and drove it carelessly while drunk. It is fortunate that he smashed into a parked car rather than a person or a moving vehicle. It is concerning that the two occasions when he was caught carrying a knife were so far apart in time, suggesting a longstanding attitude that it is acceptable to arm oneself, which I turn reflects a criminal attitude.
The Applicant committed many of his offences while on bail or subject to other obligations to be of good behaviour which adds to the seriousness of that offending.
On three occasions the Applicant has been sentenced to serve periods of actual imprisonment. The seven days he was sentenced to for the assault on Ms F, while short, is significant when one considers that imprisonment is a last resort in the hierarchy of available sentencing options. For the sexual assault in 2020, the Applicant was required to serve 12 months imprisonment. For the attack on his housemate in 2007, he was sentenced to over five years and was required to serve three years and eight months, reflecting the very serious nature of his offending.
The Applicant has offended frequently, having committed some 33 offences (excluding minor traffic offences) between 2002 and 2020. I do not discern a trend in increasing seriousness only because his early offending was very serious.
The cumulative effect of his repeated sexual offending is that two females in the Australian community have been subjected to disgusting, degrading treatment. In particular, the victim of the 2007 attack endured two rapes and multiple other sexual assaults. She was required to relive that ordeal over two years later to ensure the Applicant was held to account for his crimes.
The cumulative effect of the Applicant’s violent crimes is that multiple members of the Australian community have suffered injury. His propensity to commit other types of crimes makes him a menace to the community, putting people’s safety at risk and stealing and damaging property.
The Applicant re-offended, including the assault on Ms F and the 2020 sexual assault, since being formally warned that further offending could result in his visa being cancelled. It was contended on his behalf that the Applicant’s mental illness at the time of the 2020 sexual assault “would have negated the impact of any deterrent effect intended by the possibility of Visa cancellation.”[97] However, that reasoning does not apply to his attack on Ms F in October 2019 before, according to the Applicant, he went off the rails again. Further, the warning should have deterred the Applicant from abusing drugs in the first place, and instead seek treatment, given his prior experience of substance abuse negatively impacting his mental health and leading to his offending.
[97] Exhibit G1, Section 501 G-documents, G2, page 121.
The relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(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.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community, were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date.
Should the Applicant engage in further sexual offences, the harm includes serious physical, emotional and psychological harm. His former housemate’s victim impact statement describes severe, far-reaching psychological and emotional harm. The harm from violent assaults includes serious physical injury, psychological harm and emotional harm.
It is reasonable to presume that emotional and psychological harm can adversely impact employment or study and relationships, so there is potentially financial and social disadvantage too. What is more, the loved ones of victims are often also impacted emotionally and sometimes financially.
The harm from drink driving and careless driving obviously includes a risk of serious injury or death. The harm from dishonesty and property offences includes financial loss and a sense of violation and victimisation felt by persons whose property has been stolen or damaged.
Likelihood of engaging in further criminal or other serious conduct
According to the Applicant, he did not have any mental health problems in Ethiopia or Kenya.[98] The Applicant said that his life in Ethiopia was so difficult he fled to Kenya and then to Australia. He stayed with his cousin when he first arrived in 2000 however his cousin was in the midst of a divorce at the time and the Applicant could not stay. He became homeless and was very isolated. People at his English school helped him find emergency accommodation.[99] He spent a lot of time with people who had a negative, destructive influence and had no positive influences to offer guidance. His life started going wrong and he suffered increasingly from gambling, alcohol and drug addictions and serious mental illness.[100]
[98] Transcript, page 60, line 42 to page 61, line 25.
[99] Exhibit G1, Section 501 G-documents, G2, pages 164 to 172, paragraph 5.
[100] Exhibit G1, Section 501 G-documents, G2, pages 164 to 172, paragraph 7.
The Applicant was asked about some dishonesty offences committed in 2002 and 2003. He said he was affected by drugs, alcohol and mental illness at the time. He was asked how his mental health problems explained those offences. He said he was young and dumb and lacked knowledge about Australian law. When asked if stealing was against the law in Ethiopia, he said there was no such law there. When asked to if taking something that belongs to someone else is a crime in Ethiopia he said “of course it is a crime, yes”.[101] When asked which Australian laws he did not know about, he did not give a responsive answer.[102] I do not accept that the dishonesty offences were attributable to substance abuse, mental health issues or ignorance of Australian law.
[101] Transcript, page 59 line 29.
[102] Transcript, page 59, lines 31 to 33.
The Applicant recalls that he may have started a sex offender course when he was incarcerated for the 2007 sexual offences, but not finished it. Apart from that he has not done any rehabilitation for sex offending or family violence.[103] He thinks this kind of rehabilitation would benefit him.[104]
[103] Transcript, page 37, lines 24 to 33.
[104] Transcript, page 37, line 36.
The Applicant did not look for a sex offender course or drug and alcohol treatment after he finished that sentence. When asked why, he said he did not know he was going to reoffend ever again as he thought he had learned his lesson.[105]
[105] Transcript, page 38, lines 10 to 18.
The Applicant agreed that using alcohol and drugs causes him to have poor mental health.[106] He said in the period after his first prison sentence, his good mental health was probably due to the fact that he was not using drugs or abusing alcohol.[107] After his breakup with Ms F he started abusing alcohol and drugs which then lead to mental health problems.[108] It appears therefore, that substance abuse brings on or heightens the Applicant’s mental health problems.
[106] Transcript, page 61, lines 27 to 45.
[107] Transcript, page 62, lines 15 to 18.
[108] Transcript, page 62, lines 22 to 46
After the Applicant’s admission to Hospital in 2003, he took medication until he was released from gaol in 2014. The medication made him tired and dizzy, and affected his memory. It was almost impossible to work when he was taking that medication.[109] After being released from prison in 2014, he was feeling much better and he was able to live with his family, so he stopped his medication.[110] He was working for three or four years.[111] Child A was diagnosed with autism and his behaviour was causing problems. He and Ms F were arguing as they did not know how to deal with Child A’s condition. He was suffering from stress and unmedicated mental illness and it was hard for him to keep a job. He went to a psychiatrist who put him back on the same medication as before and once again he was unable to work.[112]
[109] Exhibit G1, Section 501 G-documents, G2, pages 164 to 172, paragraph 9.
[110] Exhibit G1, Section 501 G-documents, G2, pages 164 to 172, paragraph 14.
[111] Exhibit G1, Section 501 G-documents, G2, pages 164 to 172, paragraph 15.
[112] Exhibit G1, Section 501 G-documents, G2, pages 164 to 172, paragraphs 16 and 17.
The Applicant said that for around a year he acted as Child A’s full-time carer as Ms F was in New Zealand looking after her elderly mother. Child A needed a lot of help because of his disability, and he needed constant attention. He was very active and needed supervision to keep him safe.[113] Based on Child A’s movement records, it appears that he was in the Applicant’s care between April and October 2019, being around six months.
[113] Exhibit G1, Section 501 G-documents, G2, pages 164 to 172, paragraph 18.
The learned Magistrate who sentenced the Applicant for the 2020 sexual assault expressed his assessment of the risk that the Applicant would re-offend when he told him “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.”[114]
[114] Exhibit G1, Section 501 G-documents, G2, pages 76 and 77.
During his most recent period of incarceration, in May 2020, the Applicant was diagnosed for the first time with schizoaffective disorder. He said this is the first time he has had a proper diagnosis of his mental illness and he believes it helped him. The side effects of his new medication are much less severe and he believes he could keep a job while taking it.[115] According to a fact sheet from the National Alliance on Mental Health,[116] schizoaffective disorder is chronic mental health condition characterised primarily by symptoms of schizophrenia. Factors that may cause or contribute to the development of the disorder include genetics, brain chemistry and structure, stress and drug use. It is treated with medication, psychotherapy and self-management strategies and education. The Applicant believes that his schizoaffective disorder is being treated successfully with medication.[117] He said he has been told the early warning signs he needs to look out for to avoid a relapse of his condition and what to do if he needs help. He has been practising relaxation techniques so he can cope better with stress.[118]
[115] Exhibit G1, Section 501 G-documents, G2, pages 164 to 172, paragraph 31.
[116] Exhibit R6, National Alliance on Mental Illness ‘Schizoaffective Disorder’.
[117] Exhibit G1, Section 501 G-documents, G2, pages 164 to 172, paragraph 30.
[118] Exhibit G1, Section 501 G-documents, G2, pages 164 to 172, paragraph 32.
The Applicant claims that he did not use alcohol or drugs during any period of incarceration or detention, and there is no evidence to the contrary, so I accept that.
During his recent incarceration and detention, the Applicant has taken some other steps to manage his mental health. He completed a communication and social interaction course and joined a mental health recovery group in gaol. He found this very helpful.[119] Additionally, there are some certificates before me indicating that the Applicant participated in some mental health recovery sessions, a program on adjusting to custody and an eight hour substance use program in gaol.[120]
[119] Exhibit G1, Section 501 G-documents, G2, pages 164 to 172, paragraph 49.
[120] Exhibit G1, Section 501 G-documents, G2, pages 203 to 206.
Since being in Immigration Detention, the Applicant has had weekly phone counselling for his drug and alcohol issues. He has also been working with a social worker from Refugee Legal who pointed him towards a range of support services.[121]
[121] Exhibit A1, Statement of the Applicant dated 13 August 2021, paragraph 28
There is also a pastor who visits the Applicant every one or two weeks and his visits keep the Applicant calm and give him hope. The Applicant said his religion helps him to cope and he looks forward to being able to join a church if he is given his visa back. He is sure that his faith will help him overcome his drug, alcohol and gambling problems.[122]
[122] Exhibit A1, Statement of the Applicant dated 13 August 2021, paragraph 21.
The Applicant said that even though he has reverted to drugs and alcohol before in times of stress, he has now learned his lesson and he knows how to deal with his son’s problems.[123] He said if something stressful happens to him in the future, he will see a counsellor and seek help from his doctor, psychiatrist and psychologists.[124]
[123] Transcript, page 50, lines 9 to 14.
[124] Transcript, page 50, lines 16 to 23.
The Applicant said that he wants to do everything he possibly can to stay away from drugs, alcohol and bad crowds. He wants to find stable accommodation, take his medication, and see his doctors, psychiatrist and psychologist, and do all the necessary courses to be drug and alcohol free and reunite with his son and partner.[125] He said if he is released to the community he also intends to address his gambling problem.[126] He has been told there are Ethiopian community organisations which might be able to help him. He has never reached out to them in the past, but he is now ready to reconnect with this community and change his life for good.[127]
[125] Transcript, page 37, lines 37 to 46
[126] Exhibit G1, Section 501 G-documents, G2, pages 164 to 172, paragraphs 36 to 41.
[127] Exhibit G1, Section 501 G-documents, G2, pages 164 to 172, paragraph 45.
There is a letter before me from Bellert Yeram-boo-ee Forensic Mental Health Services dated 15 March 2021. It confirms that the Applicant was admitted to the Tambo program at Raven Hall Correctional Centre in 4 November 2020 and was to remain there until his release in April 2021 provided his mental state remained sufficiently stable. It stated that Tambo is a psycho-social rehabilitation unit that provides group based and individualised interventions to men with chronic mental health conditions. It works with men whose symptoms are in remission and can thus engage meaningfully in the therapeutic program. The letter added that as the Applicant was a patient, he would receive six weeks of post-release support. This support would be available whether the Applicant returned to the community or was taken into Immigration Detention.[128] If the Applicant is given his visa back released to the wider community, he will accordingly be able to access six weeks of post-release support through the Tambo program.[129]
[128] Exhibit G1, Section 501 G-documents, G2, page 202.
[129] Exhibit G1, Section 501 G-documents, G2, page 197.
Apart from that, the Applicant has put forward various support services that he plans to access, including support for his mental health.[130] He claimed that he had not previously known these supports were available, however he admitted that he had not made enquiries.[131]
[130] Exhibit A1, Statement of the Applicant dated 13 August 2021.
[131] Transcript, page 38, lines 1 to 20.
Although the Applicant agreed that rehabilitation for sex offending and family violence would benefit him,[132] it is concerning that he has not specifically included that in his plans should he be given his visa back.
[132] Transcript, page 37, lines 24 to 36.
The Applicant said that if he is given a chance to return to Australian society he will become a positive contributor to the community and will never reoffend.[133] He expressed shock and shame at the terrible consequences of what he did to his victims. He said he is committed to never offend in any way again and not allow himself to get into a situation where that might happen.[134] In terms of his motivation, he said:
“I now fully understand in a way I never did before (despite the warnings I had) what will happen if I was ever to re-offend. Facing deportation to Ethiopia where it would be extremely dangerous for me to return or indefinite detention is terrifying.”[135]
[133] Exhibit G1, Section 501 G-documents, G2, pages 164 to 172, paragraph 25.
[134] Exhibit G1, Section 501 G-documents, G2, pages 164 to 172, paragraph 33.
[135] Exhibit A1, Statement of the Applicant dated 13 August 2021, paragraph 12.

It seems possible that the Applicant could function well in Ethiopia without medication for a time but I am not confident he would be able to sustain that in the long term. There is a real possibility that the Applicant will need counselling support and/or medication. He is sufficiently educated about his condition and there are some mental health services available in Addis Ababa. There is a question, however whether he will have the financial means to access the support he needs. While the information in the DFAT report seems to suggest that services other than private services are free, that is not made explicit.
The Applicant’s particular mental illness includes symptoms that can be conspicuous and associated with mental illness so I am satisfied that if his mental health deteriorates such that he is florid, he will be identified as someone with a mental illness, and he will be at risk of disadvantage in relation to accommodation and employment, and possibly being physically restrained and isolated. Accessing treatment is another way that the Applicant could be identified as a person with a mental illness.
The Applicant’s HIV status
The Applicant was diagnosed as being HIV positive in 2020 just before he became incarcerated. He has been on medication for that ever since. He claims to fear that in Ethiopia he will have no job and no money, he will not be able to afford medication (for HIV or his mental health), and he will suffer and die.[210] He appeared to assume that he would have to pay for medication. He did not claim to have any personal knowledge of the cost or availability of HIV medication in Ethiopia or point to any authoritative source of such information.
[210] Transcript, page 21, lines 32 to 39.
When asked if he thought he would be discriminated against because of his HIV status, he said he would be discriminated against in the sense that he would not be able to get the medication and because he does not speak the language.[211]
[211] Transcript, page 56, lines 35 to 40.
According to the DFAT report, Ethiopia’s health system is steadily improving. AIDS related deaths in Ethiopia have fallen fivefold since 2003. However, access to health care is an ongoing challenge. Ethiopia has one physician and three hospital beds for every 10,000 people. Public health facilities in the major cities, including Addis Ababa, are basic. Private clinics and hospitals exist but are financially prohibitive for the average person.[212]
[212] Exhibit R1, Annexure B DFAT Country Information Report Ethiopia dated 12 August 2020 paragraphs 2.24.
According to country information put forward by the Applicant, in 2016 there were 710,000 people living with HIV in Ethiopia. In 2019, antiretroviral therapy (‘ART’) coverage extended to between 70 to 80% of the adult population.[213]
[213] Exhibit G1, Section 501 G documents, G2, page 156.
In the Applicant’s revocation request, it was contended on his behalf that he would have no family or other means of support in Ethiopia he would not be able to pay for the treatment.[214] This contention was supported by an assertion that in 2019 the cost profile of ART was an average of US$235.44 for outpatient care and US$29.44 for inpatient care.[215] However, the article cited was dated in 2009, and it did not assert that those costs were borne by patients. Rather, the article concerned a study whose object was:
“To estimate the average per person year (PPY) cost of care for HIV patients with and without anti-retroviral therapy (ART) in a district hospital.”
[214] Exhibit G1, Section 501 G documents, G2, page 158.
[215] Exhibit G1, Section 501 G documents, G2, pages 157 and 158.
The article went on to point out that ART in Ethiopia was at that time funded through external programs such as the Global Fund to Fight AIDS, and that funding may not continue at its current level, meaning Ethiopia may have to assume the major share of the cost of care and treatment in the future.[216] I take that article to concern the cost of providing ART to a patient rather than the cost to patients.
[216] Asfaw Demissie Bikilla, Degu Jerene, Bjarne Robberstad and Bernt Lindtjorn, Cost estimates of HIV care and treatment with and without anti-retroviral therapy at Arba Minch Hospital in southern Ethiopia. >
More recent country information obtained by the Tribunal, dated 2019, indicates that Ethiopia has significantly expanded HIV/AIDS interventions during the last two decades by decentralising the free highly active antiretroviral treatment (HAART) in public facilities and in private clinics and hospitals.[217] I prefer the more recent evidence, which much better explains the high treatment coverage in a generally poor population. I am satisfied that Ethiopia provides free HIV treatment to its citizens.
[217] Deribew, A., Biadgilign, S., Berhanu, D. et al. Capacity of health facilities for diagnosis and treatment of HIV/AIDS in Ethiopia. BMC Health Serv Res 18, 535 (2018). >
There are health facilities in Addis Ababa and other parts of the country. I am satisfied that the Applicant could likely access adequate HIV medication and that if he could not, it would not be the result of intentional action against him.
The Applicant claimed that managing his HIV and mental illness in Ethiopia would be stressful[218] and, while he seems to have made some incorrect assumptions about access to medication and treatment, I accept that managing those conditions is likely to involve some stress.
[218] Exhibit G1, Section 501 G documents, G2, page 171.
The country information indicates that there are discriminatory attitudes to people with HIV and that discrimination affects education, employment and community integration. People with HIV had reported difficulty accessing various services.[219]
[219] Exhibit G1, Section 501 G documents, G2, page 158.
Applicant’s ability to support himself
The Applicant claimed that he does not have any experience or skills to get a job.[220] He claimed he has a poor education. In Australia the Applicant worked as a process worker in a factory, a forklift driver and a machine operator.[221] The Applicant was educated in Ethiopia until year 11. In 2017 only 31% of males and 30% of females of secondary school age in Ethiopia were enrolled in secondary school. [222]
[220] Transcript, page 53, line 24 to page 54, line 18.
[221] Transcript, page 30, lines 39 to 48
[222] Exhibit R1, Annexure B DFAT Country Information Report - Ethiopia dated 12 August 2020 DFAT Report, 2.30.
Accordingly, the Applicant is relatively well educated in the context of the Ethiopian population. The Applicant he studied English courses, carpentry, hospitality, and welding.[223] I am satisfied that the Applicant has skills and experience in manual labour and some knowledge of hospitality. Apart from HIV and schizoaffective disorder, the Applicant is in good health and able bodied.
[223] Exhibit G1, Section 501 G documents, G2, page 103.
According to the DFAT report, while consistently high growth in the Ethiopian economy has helped improve living standards and reduce extreme poverty levels, Ethiopia remains one of the poorest countries in the world. According to the Ethiopian government, 8.4 million people require humanitarian aid, including emergency food assistance, in 2020. In practice, this number is likely significantly higher. Poverty is most pronounced in rural areas.
Nearly 70%of Ethiopia’s labour force is engaged in the agricultural sector, primarily as subsistence and smallholder farmers. The services sector (at 24%) is the next largest employer. Urban unemployment has steadily decreased since 2003 and was 19% in 2019. Most urban Ethiopians were employed in the services sector (80%) in 2018, and were employed by the private sector (75%). Real wages are currently equivalent to what they were in 2006, after a decline which bottomed out in 2012. Employment is a major driver of both internal migration (typically to Addis Ababa) and formal and informal external migration.[224]
[224] Exhibit R1, Annexure B DFAT Country Information Report Ethiopia dated 12 August 2020 paragraphs 2.12 to 2.15.
The Applicant claimed that he would have no one to help him in Ethiopia and no understanding of what he needs to do to protect himself. Considering the persecution, discrimination and problems he would face, he said he would be overwhelmed and quickly end up in poverty.[225]
[225] Exhibit G1, Section 501 G documents, G2, page 171.
The Applicant lived in Ethiopia until he was 17 years old so he has some knowledge of the society. According to the DFAT report, the International Organisation for Migration provides food, temporary shelter, onward transportation, cash assistance and other forms of support such as clothing and bedding to deportees considered particularly vulnerable (being those who were detained before deportation and returned without any belongings, assets or savings). The Ethiopian government also provides some reintegration assistance, including temporary shelter, food, medical assistance and skills training. I am satisfied that the Applicant’s basic needs would be met upon arrival in Ethiopia and he would be assisted to establish himself.
However, in the longer term, there is a risk that despite his ability to work in manual labour, he would struggle to financially support himself because of the poor economic situation in Ethiopia. That alone does not constitute cruel, inhuman or degrading treatment or punishment, or being arbitrarily deprived of one’s life, and I note that there is some humanitarian and emergency provision of food in Ethiopia. Additional challenges for the Applicant would be lack of familial and social connections, and discrimination due to his mental illness and HIV status. I do not have sufficient country information concerning the extent of disadvantage that the Applicant could face on the basis of his mental health and HIV status, in the context of a poor economy with high levels of poverty and no social support, to make a finding that his capacity to subsist would be threatened or that he would be at a real risk of the other kinds of harm that engage non-refoulement obligations. It is possible that, in the context of a Protection visa application with more detailed, reliable country information, such a finding could be made although that is speculative at this stage.
There is insufficient evidence before me to find a likelihood that the Applicant engages Australia’s non-refoulement obligations. In any event, there is sufficient evidence that he will face the risks of harm and hardship discussed above if removed to Ethiopia.
There is a large degree of overlap between the matters I am considering under this Other Consideration and the matters that are relevant to Other Consideration (b) (Extent of Impediments if removed). Accordingly, I will allocate weight on the basis of both Other Considerations combined.
According to paragraph 9.2 of the Direction, I must take into account the extent of any impediments that the applicant may face if removed to Ethiopia in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account his age and health, whether there are any substantial language or cultural barriers, and any social, medical and/or economic support available to the Applicant in that country.
I have addressed most of these. The Applicant is now 39 years old and he spent his first 17 years in Ethiopia. Apart from HIV and mental illness, he does not appear to suffer any significant health problems, although managing these conditions is likely to be somewhat stressful. Until the age of 17, he spoke a commonly spoken language in Ethiopia, being Oromo, and he now speaks another commonly spoken language, being English. He picked up some Swahili during his time in Kenya, indicating linguistic skill. I have rejected his evidence that he would not be able to pick up Oromo relatively quickly. While he has been away from Ethiopia for 20 years, I am satisfied that the culture, including the local culture in Addis Ababa where he has not lived before, would not be entirely unfamiliar to him.
The applicant does not wish to be removed to Ethiopia. If his visa is not returned to him, he may apply for a Protection visa however, realistically, it seems likely that he would fail to satisfy either the refugee or complementary protection criteria because both are subject to exclusions reflecting the exclusion in Art. 33(2) of the Refugees Convention.
Paragraph 5.7 of the DFAT report refers to the Ethiopian government having typically welcomed “voluntary” returnees. There is no clear country information before me about whether or not Ethiopia accepts involuntary returnees. Accordingly there is some uncertainty in my mind about whether Ethiopia would accept the Applicant if he did not agree to return. If not, then a non-revocation decision would include a period of prolonged or indeterminate detention while the Minister explored possible solutions.
The applicant gave evidence that in Immigration Detention, he is doing classes in English, art and cooking. He is also building up his fitness and strength by going to the gym and playing sports. He said team sports have helped him with social skills, and the exercise has helped his physical and mental health. He continues to see a psychiatrist and psychologist who monitor his progress and manage his medicine which he finds very helpful.[226] The Applicant gets the HIV medication he needs. He claimed to be in frequent telephone contact with Ms F and Child A. He did not report having been the target of ill treatment.
[226] Exhibit A1, Statement of the Applicant dated 13 August 2021, paragraphs 17 to 19.
When I asked the applicant how being in Immigration Detention had impacted him, he said it had impacted him mentally because he cannot accept being in detention, seeing his son crying over the phone and Ms F wanting them to be together and raise their sick[227] child.[228] My impression was that he focussed on these negative aspects and failed to mention the improvements to his physical and mental health in an effort to support his application. However, I allocate some weight in favour of revocation because of the loss of his liberty while he remains in detention and the uncertainty that is associated with prolonged or indeterminate detention.
[227] I take “sick” to mean autistic as there was no evidence of any illness suffered by Child A.
[228] Transcript, page 68, lines 1 to 14.
Overall, Other Considerations (a) and (b) combined weigh heavily in favour of revocation.
(c) Impact on victims
This Other Consideration (c) requires me to assess the impact of the decision on members of the Australian community, including victims of the Applicant’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the Applicant has been afforded procedural fairness.
Ms F is a victim of the Applicant’s offending although she denies this. She is not an Australian citizen, but she has the right to permanently reside in Australia. She is not currently in Australia and has not lived in Australia since February 2018. She is not a member of the Australian community and I do not accept that her claimed intention to return to Australia is genuine. She is not a person whom this Other Consideration requires me to take into account. Further, I do not consider that any impact of non-revocation on her is otherwise relevant to whether there is another reason to revoke the cancellation of the Applicant’s visa.
There is no other evidence before the Tribunal regarding the impact of my decision on any other victims of the Applicant’s offending. The impact statement of the rape victim does not address this issue.
This Other Consideration (c) is neutral.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Applicant came to Australia around the age of 18 and has lived in the wider Australian community for around 16 years. He commenced offending two years after arriving in Australia and therefore is entitled to less weight under paragraph 9.4.1(2)(a) of the Direction.
The Applicant held employment for a time before 2003 at which time he went on disability pension. After being released from gaol in 2014, he held employment from 2015 to 2018.[229] In his revocation request, he said he had done voluntary work for the Salvation Army, helping to feed homeless people.[230] However this is what he said he was required to do under his Community Service Order, meaning it was not voluntary. He also said he had given support to the local Ethiopian community, helping out at community gatherings.[231] However, in the hearing he said he had not had any involvement with Ethiopian community organisations (who could help with his rehabilitation)[232] and he did not associate or socialise with the Oromo community in Australia.[233] I am not satisfied that the Applicant could have had more than minimal involvement in Ethiopian community events. I allocate limited weight under paragraph 9.4.1(2)(a) of the Direction.
[229] Exhibit G1, Section 501 G-documents, G2, page 103.
[230] Exhibit G1, Section 501 G-documents, G2, page 104.
[231] Exhibit G1, Section 501 G-documents, G2, page 104.
[232] Exhibit G1, Section 501 G-documents, G2, pages 164 to 172, paragraph 45.
[233] Transcript, page 54, lines 25 to 30.
My reasoning for not considering the impact of non-revocation on Ms F under Other Consideration (c) applies equally to this Other Consideration.
The Applicant does not have any immediate family in Australia, although he claimed to have some relatives here. The impact of non-revocation on his cousin’s children has been taken into account in Primary Consideration 3 and I will not double count here.
The Applicant said if he was deported, all his family would miss him. He said they are very supportive of him and his current situation has affected them greatly.[234] The relatives the Applicant claimed to have in Australia are a brother in law although is not apparent who this person is, and 10 cousins, although there no evidence about his relationship with any cousins except for the cousin who assisted him to come to Australia. There is no evidence of support from relatives in the material before me.
[234] Exhibit G1, Section 501 G-documents, G2, page 101.
The Applicant’s cousin who assisted him to come to Australia, provided accommodation and socialised with the Applicant and Child A did not provide a letter of support, nor do any of the sentencing remarks I have before me mention that person being in court or offering support. There is no evidence before me that a non-revocation decision would cause the Applicant’s cousin any significant hardship but I am prepared to accept that it could cause some sadness. I am not satisfied that non-revocation would adversely impact any other relatives in Australia.
The Applicant did not claim to have any significant social connections. His reference to falling in with the “wrong crowd” indicates there are some connections that are anti-social and that he does not wish to maintain. He did say that he had tried to get character references from family members and friends which implies that he has friends. He said that he was in gaol and had no one to help him and he had not been able to get in contact with anyone.[235] The Applicant has been in Immigration Detention for some months. In May 2021 he was in telephone contact with a legal service in relation to his revocation request.[236] He gave evidence that when he came into Immigration Detention he resumed contact with Child A and he tries to talk to him every night.[237] Despite having access to a phone in Immigration Detention, the Applicant did not put forward any letters of support from anyone other than Ms F. I am not satisfied that he has significant social connections in the Australian community.
[235] Exhibit G1, Section 501 G-documents, G2, page 107.
[236] Transcript, page 16, lines 37 to 40.
[237] Transcript, page 47, lines 25 to 35.

On the evidence before me, despite having lived in the wider Australian community for some 16 years, the Applicant has minimal ties to the Australian community. I allocate limited weight in his favour under paragraph 9.4.1(2)(b) of the Direction.
Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction.
Conclusion: Other Consideration (d)
Overall, I am satisfied that the Applicant’s links to the Australian community weighs to a limited extent in favour of revocation.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction.
The only factor that favours the revocation of the cancellation of the Applicant’s visa to any significant degree is the hardship and risk of harm that he will face in Ethiopia including a likelihood that he will struggle to meet his basic needs. This weighs heavily in my assessment. However, even when combined with the other matters that favour revocation, it cannot override the need to protect the Australian community from the risk that the Applicant will commit further offences of the kind he has committed. In this sense, Primary Consideration 1 is determinative in this matter.
There is not another reason to revoke the cancellation of the Applicant’s visa. I am fortified in my decision by the expectations of the Australian community and the Australian community’s abhorrence of family violence which provide further powerful reasons against revocation.
DECISION
The decision under review is affirmed.

I certify that the preceding 278 (two hundred and seventy eight) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

........................[sgd]...............................................
Associate
Dated: 29 September 2021

Date of hearing: 31 August 2021

Applicant:

By videoconference
Self-represented

Solicitor for the Respondent Mr Alex Booth
Clayton Utz
ANNEXURE A – EXHIBIT LIST

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents
(G1 to G10 paged 1 to 287)

-

13 July 2021

A1

Statement of the Applicant (paged 1 to 5)

13 August 2021

18 August 2021

R1

Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 28) including annexures:

·     Annexure A: Movement Records of the Applicant’s Son

·     Annexure B: DFAT Country Information Report - Ethiopia dated 12 August 2020

16 August 2021

16 August 2021

R2

Respondent’s Summonsed Material
(SM1 to SM2, paged 1 to 172)

-

16 August 2021

R3

Respondent’s Further Statement of Facts, Issues and Contentions (paged 1 to 4)

25 August 2021

25 August 2021

R4

Respondent’s Further Summonsed Material
(SM3, paged 173 to 245)

-

25 August 2021

R5

Forensicare Discharge Summary

15 April 2021

31 August 2021

R6

Evidence regarding Schizoaffective Disorder including:

·     Mayo Clinic ‘Schizoaffective Disorder’ (8 pages)

·     National Alliance on Mental Illness ‘Schizoaffective Disorder’ accessed 31 August 2021 (4 pages)

·     Victorian State Government Better Health Channel ‘Schizoaffective Disorder’ accessed 31 August 2021 (5 pages)

-

31 August 2021

[2021] AATA 3476

21 September 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Date of hearing:	31 August 2021
Applicant:	By videoconference Self-represented
Solicitor for the Respondent	Mr Alex Booth Clayton Utz

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G10 paged 1 to 287)	-	13 July 2021
A1	Statement of the Applicant (paged 1 to 5)	13 August 2021	18 August 2021
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 28) including annexures: · Annexure A: Movement Records of the Applicant’s Son · Annexure B: DFAT Country Information Report - Ethiopia dated 12 August 2020	16 August 2021	16 August 2021
R2	Respondent’s Summonsed Material (SM1 to SM2, paged 1 to 172)	-	16 August 2021
R3	Respondent’s Further Statement of Facts, Issues and Contentions (paged 1 to 4)	25 August 2021	25 August 2021
R4	Respondent’s Further Summonsed Material (SM3, paged 173 to 245)	-	25 August 2021
R5	Forensicare Discharge Summary	15 April 2021	31 August 2021
R6	Evidence regarding Schizoaffective Disorder including: · Mayo Clinic ‘Schizoaffective Disorder’ (8 pages) · National Alliance on Mental Illness ‘Schizoaffective Disorder’ accessed 31 August 2021 (4 pages) · Victorian State Government Better Health Channel ‘Schizoaffective Disorder’ accessed 31 August 2021 (5 pages)	-	31 August 2021